Re: Civil Disobedience, Edward J. Snowden, and the Constitution

Dear Mr. President:

You are acutely aware that the history of liberty is a history of civil disobedience to unjust laws or practices. As Edmund Burke sermonized, “All that is necessary for the triumph of evil is that good men do nothing.”

Civil disobedience is not the first, but the last option. Henry David Thoreau wrote with profound restraint in Civil Disobedience: “If the injustice is part of the necessary friction of the machine of government, let it go, let it go: perchance it will wear smooth certainly the machine will wear out. If the injustice has a spring, or a pulley, or a rope, or a crank, exclusively for itself, then perhaps you may consider whether the remedy will not be worse than the evil; but if it is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law. Let your life be a counter-friction to stop the machine.”

Thoreau’s moral philosophy found expression during the Nuremburg trials in which “following orders” was rejected as a defense. Indeed, military law requires disobedience to clearly illegal orders.

A dark chapter in America’s World War II history would not have been written if the then United States Attorney General had resigned rather than participate in racist concentration camps imprisoning 120,000 Japanese American citizens and resident aliens.

Civil disobedience to the Fugitive Slave Act and Jim Crow laws provoked the end of slavery and the modern civil rights revolution.

We submit that Edward J. Snowden’s disclosures of dragnet surveillance of Americans under § 215 of the Patriot Act, § 702 of the Foreign Intelligence Surveillance Act Amendments, or otherwise were sanctioned by Thoreau’s time-honored moral philosophy and justifications for civil disobedience. Since 2005, Mr. Snowden had been employed by the intelligence community. He found himself complicit in secret, indiscriminate spying on millions of innocent citizens contrary to the spirit if not the letter of the First and Fourth Amendments and the transparency indispensable to self-government. Members of Congress entrusted with oversight remained silent or Delphic. Mr. Snowden confronted a choice between civic duty and passivity. He may have recalled the injunction of Martin Luther King, Jr.: “He who passively accepts evil is as much involved in it as he who helps to perpetrate it.” Mr. Snowden chose duty. Your administration vindictively responded with a criminal complaint alleging violations of the Espionage Act.

From the commencement of your administration, your secrecy of the National Security Agency’s Orwellian surveillance programs had frustrated a national conversation over their legality, necessity, or morality. That secrecy (combined with congressional nonfeasance) provoked Edward’s disclosures, which sparked a national conversation which you have belatedly and cynically embraced. Legislation has been introduced in both the House of Representatives and Senate to curtail or terminate the NSA’s programs, and the American people are being educated to the public policy choices at hand. A commanding majority now voice concerns over the dragnet surveillance of Americans that Edward exposed and you concealed. It seems mystifying to us that you are prosecuting Edward for accomplishing what you have said urgently needed to be done!

The right to be left alone from government snooping–the most cherished right among civilized people — is the cornerstone of liberty. Supreme Court Justice Robert Jackson served as Chief Prosecutor at Nuremburg. He came to learn of the dynamics of the Third Reich that crushed a free society, and which have lessons for the United States today.

Writing in Brinegar v. United States, Justice Jackson elaborated:

The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

These, I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.

We thus find your administration’s zeal to punish Mr. Snowden’s discharge of civic duty to protect democratic processes and to safeguard liberty to be unconscionable and indefensible.

We are also appalled at your administration’s scorn for due process, the rule of law, fairness, and the presumption of innocence as regards Edward.

On June 27, 2013, Mr. Fein wrote a letter to the Attorney General stating that Edward’s father was substantially convinced that he would return to the United States to confront the charges that have been lodged against him if three cornerstones of due process were guaranteed. The letter was not an ultimatum, but an invitation to discuss fair trial imperatives. The Attorney General has sneered at the overture with studied silence.

We thus suspect your administration wishes to avoid a trial because of constitutional doubts about application of the Espionage Act in these circumstances, and obligations to disclose to the public potentially embarrassing classified information under the Classified Information Procedures Act.

Your decision to force down a civilian airliner carrying Bolivian President Eva Morales in hopes of kidnapping Edward also does not inspire confidence that you are committed to providing him a fair trial. Neither does your refusal to remind the American people and prominent Democrats and Republicans in the House and Senate like House Speaker John Boehner, Congresswoman Nancy Pelosi, Congresswoman Michele Bachmann, and Senator Dianne Feinstein that Edward enjoys a presumption of innocence. He should not be convicted before trial. Yet Speaker Boehner has denounced Edward as a “traitor.” Ms. Pelosi has pontificated that Edward “did violate the law in terms of releasing those documents.” Ms. Bachmann has pronounced that, “This was not the act of a patriot; this was an act of a traitor.” And Ms. Feinstein has decreed that Edward was guilty of “treason,” which is defined in Article III of the Constitution as “levying war” against the United States, “or in adhering to their enemies, giving them aid and comfort.”

You have let those quadruple affronts to due process pass unrebuked, while you have disparaged Edward as a “hacker” to cast aspersion on his motivations and talents. Have you forgotten the Supreme Court’s gospel in Berger v. United States that the interests of the government “in a criminal prosecution is not that it shall win a case, but that justice shall be done?”

We also find reprehensible your administration’s Espionage Act prosecution of Edward for disclosures indistinguishable from those which routinely find their way into the public domain via your high level appointees for partisan political advantage. Classified details of your predator drone protocols, for instance, were shared with the New York Times with impunity to bolster your national security credentials. Justice Jackson observed in Railway Express Agency, Inc. v. New York: “The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.”

In light of the circumstances amplified above, we urge you to order the Attorney General to move to dismiss the outstanding criminal complaint against Edward, and to support legislation to remedy the NSA surveillance abuses he revealed. Such presidential directives would mark your finest constitutional and moral hour.

Sincerely,

Bruce Fein

Counsel for Lon Snowden

Lon Snowden

source: http://msnbcmedia.msn.com/i/msnbc/sections/tvnews/dateline%20nbc/obama.pdf

By Steve Wright¹, Surveillance & Society, 2005

Abstract

This article tells the story behind the uncovering of the US operated global telecommunications interceptions system now known as ECHELON. It begins with the use of fieldwork techniques in the early 1970’s exploring the configuration of Britain’s Post Office towers – these were ostensibly the microwave links through which Britain’s long distance telephone calls were made. This modelling process revealed a system within the system of microwave towers linked to the American base of Menwith Hill in the North York Moors. All the key researchers were then promptly arrested, a raid by Special Branch on the author’s university at Lancaster ensued and later a show trail for the other main researchers, most notably Duncan Campbell. Eventually in 1988, Duncan wrote up the ECHELON story, which for its time was an incredible piece of detective work using materials lifted from waste bins by the women activists campaigning around the Menwith Hill Base. Little notice was taken until 1997 when an obscure book by Nicky Hager, Secret Power explained the role and function of ECHELON in more depth. The author represented these findings in a policy report to the European Parliament on the technology of political control that led to a process of political debate and disagreement of the ethics of such a system which continues even today.

Introduction

Studies of surveillance are challenging, and often demand a sustained research commitment. It is no coincidence that many of the key British researchers active in this field in the early 1970’s remain so today. I am currently still working on issues of what are essentially tools of social and political control – both professionally as an Associate Reader at Leeds Metropolitan University in the Praxis Centre, ethically as a lecturer in the School of Applied Global Ethics and politically as chair of the Board of Trustees of Privacy International.

This article describes how I became engrossed in studying ‘technologies of political control’, and tracked the members of the security industrial complex, responsible for proliferating it to some of the world’s most unsavoury regimes. More specifically, it relates how a lowly postgraduate researcher stumbled across the entrails of a global telecommunications interception system; precipitated the first Special Branch police raid on a British University; provoked the first ever parliamentary debate on the British secret police; and accidentally detonated a worldwide political and ethical debate on the existence of a futuristic global electronic spying network, now known as ‘ECHELON’. In relating my personal experience of researching the ECHELON trail, I hope to illustrate how many of the challenges facing surveillance scholars during critical periods of their work can be faced and eventually overcome without the researcher becoming part of the food chain of the process they are watching.

ECHELON is a (now out-of-date) code name given to the US National Security Agency’s worldwide facility for the mass interception of electronic telecommunications including, phone, fax and email using key words and context. It works on the basis that other telecommunication links can be used to siphon off messages travelling by satellite, microwave relay link or fibre optic cable, if they intercept such streams at a key node, and can work at a prodigious rate of more that 2 million intercepts per hour. Essentially, the system can work because for some of its journey, telecommunications traffic is travelling as an electronic stream that can be intercepted if the appropriate infrastructure is in place. However, the current wisdom is that ECHELON does not exist in the way it was originally construed but is a now thought to be a collection of subsets of interception capabilities using a range of code names of which we remain ignorant. Nevertheless, for the sake of simplicity, it makes sense to continue to use the generic label ‘ECHELON’ whilst recognizing that new surveillance algorithms have evolved since the early researchers built their crude paradigms.

My interest in surveillance studies began over three decades ago when no such field existed. I was a student at Manchester University on an unusual course, entitled ‘Liberal Studies in Science’. The course attempted to bridge the communication gap between science and the humanities, and create ‘literate scientists’ (in the wake of C.P Snow’s famous critique of the ‘two cultures’). The training given by the course certainly paid off in the years which followed, since it enabled its students to look at specific technical problems with perspectives from many different disciplines.

I became fascinated by the process of technology assessment: the attempt to examine unforeseen impacts of technological innovation. For example, the course examined nuclear arms races, and the parallels with arms races emerging in counter-insurgency conflicts, which were then in the news, fired my imagination. The course’s coverage of the Vietnam War highlighted a new generation of military systems which had potential domestic uses such as helicopter-mounted flight stabilized CCTV night vision cameras, already beginning to find a market in policing the U.S. home front.

At the same time on the UK home front, the British Society for Social Responsibility in Science (BSSRS) was just beginning to examine the deployment of new weapons and technologies in the burgeoning ‘troubles’ in Northern Ireland: a province that was about to become the most surveilled zone in Europe. BSSRS conceptualized this new equipment as a ‘technology of political control’. According to BSSRS, this technology encompassed new crowd control technologies designed to appear safe (rather than be safe), new torture technologies designed to induce psychological breakdown; and new surveillance and telecommunication systems that provided a powerful nervous system for ‘the strong state’. Continue reading →

Michael Hirsh reports: With Edward Snowden on the run in Russia and reportedly threatening to unveil the entire “blueprint” for National Security Agency surveillance, there’s probably as much terror in Silicon Valley as in Washington about what he might expose. The reaction so far from private industry about the part it has played in helping the government spy on Americans has ranged from outraged denial to total silence. Facebook’s Mark Zuckerberg, he of the teen-nerd hoodie, said he’d never even heard of the kind of data-mining that the NSA leaker described—then fell quiet. Google cofounder Larry Page declared almost exactly the same thing; then he shut up, too. Especially for the libertarian geniuses of Silicon Valley, who take pride in their distance (both physically and philosophically) from Washington, the image-curdling idea that they might be secretly in bed with government spooks induced an even greater reluctance to talk, perhaps, than the Foreign Intelligence Surveillance Act, which conveniently forbids executives from revealing government requests for information.

But the sounds of silence from the tech and telecom sectors are drowning out a larger truth, one that some of Snowden’s documents might well supply in much greater detail. For nearly 20 years, many of these companies—indeed most of America’s biggest corporate sectors, from energy to finance to telecom to computers—have been doing the intelligence community’s bidding, as America’s spy and homeland-security agencies have bored their way into the nation’s privately run digital and electronic infrastructure. Sometimes this has happened after initial resistance, and occasionally under penalty of law, but more often with willing and even eager cooperation. Indeed, the private tech sector effectively built the NSA’s surveillance system, and got rich doing it.

Books have been written about President Eisenhower’s famous farewell warning in 1961 about the “military-industrial complex,” and what he described as its “unwarranted influence.” But an even greater leviathan today, one that the public knows little about, is the “intelligence-industrial complex.”

The saga of the private sector’s involvement in the NSA’s scheme for permanent mass surveillance is long, complex, and sometimes contentious. Often, in ways that appeared to apply indirect pressure on industry, the NSA has demanded, and received, approval authority—veto power, basically—over telecom mergers and the lifting of export controls on software. The tech industry, in more than a decade of working-group meetings, has hashed out an understanding with the intelligence community over greater NSA access to their systems, including the nation’s major servers (although it is not yet clear to what degree the agency had direct access). “I never saw [the NSA] come and say, ‘We’ll do this if you do that,’ ” says Rebecca Gould, the former vice president for public policy at Dell. “But the National Security Agency always reached out to companies, bringing them in. There are working groups going on as we speak.” [Continue reading…]

The New York Times reports: The movement to crack down on government surveillance started with an odd couple from Michigan, Representatives Justin Amash, a young libertarian Republican known even to his friends as “chief wing nut,” and John Conyers Jr., an elder of the liberal left in his 25th House term.

But what began on the political fringes only a week ago has built a momentum that even critics say may be unstoppable, drawing support from Republican and Democratic leaders, attracting moderates in both parties and pulling in some of the most respected voices on national security in the House.

The rapidly shifting politics were reflected clearly in the House on Wednesday, when a plan to defund the National Security Agency’s telephone data collection program fell just seven votes short of passage. Now, after initially signaling that they were comfortable with the scope of the N.S.A.’s collection of Americans’ phone and Internet activities, but not their content, revealed last month by Edward J. Snowden, lawmakers are showing an increasing willingness to use legislation to curb those actions.

Representatives Jim Sensenbrenner, Republican of Wisconsin, and Zoe Lofgren, Democrat of California, have begun work on legislation in the House Judiciary Committee to significantly rein in N.S.A. telephone surveillance. Mr. Sensenbrenner said on Friday that he would have a bill ready when Congress returned from its August recess that would restrict phone surveillance to only those named as targets of a federal terrorism investigation, make significant changes to the secret court that oversees such programs and give businesses like Microsoft and Google permission to reveal their dealings before that court.

“There is a growing sense that things have really gone a-kilter here,” Ms. Lofgren said. [Continue reading…]

An editorial in the New York Times says: There are so many deeply troubling things about the Foreign Intelligence Surveillance Court that it is difficult to know where to begin, but a good place might be the method by which the court’s judges are chosen.

All 11 of the current members were assigned to the court by Chief Justice John Roberts Jr. In the nearly eight years he has been making his selections, Chief Justice Roberts has leaned about as far right as it is possible to go. Ten of those 11 members were appointed to the bench by Republican presidents; the two previous chief justices put Republican-appointed judges on the court 66 percent of the time, as reported by Charlie Savage in The Times.

The FISA court considers government requests for warrants to collect phone and Internet data, among other things, on an enormous scale. The judges hear only the government’s argument. There is no adversary present to represent interests of those whose privacy would be violated — which could well involve millions of Americans. The court’s rulings, some of which include novel interpretations of constitutional law, remain secret.

If the surveillance court is to be considered part of the American justice system, it needs to start looking more like an actual court. For starters, there is no good reason the chief justice should have sole authority to appoint the court’s judges. Already, critics of the current system have floated numerous alternative ways for selecting FISA court judges.

One idea worth considering, offered by Senator Richard Blumenthal, Democrat of Connecticut, is for each of the chief judges of the federal appeals courts to select one judge for the surveillance court.

This approach could minimize the risk of politicizing the process. A further step might be to require the chief judges’ choices to be submitted for approval to a board consisting of members of Congress with experience in intelligence matters and experts with experience in protecting civil liberties.

The professional qualifications of the judges appointed by Chief Justice Roberts are not in question. But given the extent to which the FISA court’s rulings have infiltrated our lives, it is appropriate for the public to have a voice in who sits on it.

The authority of our judiciary derives from its independence and its accountability. At the very least, the power to select the judges who are making secret law should not rest in the hands of one man.

The Washington Post reports: It was one of the strangest personal crusades on Capitol Hill: For years, Sen. Ron Wyden said he was worried that intelligence agencies were violating Americans’ privacy.

But he couldn’t say how. That was a secret.

Wyden’s outrage, he said, stemmed from top-secret information he had learned as a member of the Senate Intelligence Committee. But Wyden (D-Ore.) was bound by secrecy rules, unable to reveal what he knew.

Everything but his unhappiness had to be classified. So Wyden stuck to speeches that were dire but vague. And often ignored.

“I want to deliver a warning this afternoon: When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry,” Wyden said on the Senate floor in May 2011.

Two years later, they found out.

The revelations from former National Security Agency contractor Edward Snowden — detailing vast domestic surveillance programs that vacuumed up data on phone calls, e-mails and other electronic communications — have filled in the details of Wyden’s concerns.

So he was right. But that is not the same as winning.

To change the law and restrict domestic spying, the low-key Wyden still must overcome opposition from the White House and the leaders of both parties in Congress. [Continue reading…]