Saturday, June 29, 2013

Electronic Surveillance Law 101

POGO Project On Government Oversight - Blog

Electronic Surveillance Law 101


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The recent whistleblowing disclosures by Edward Snowden have revealed systemic mass domestic surveillance. The government has justified its programs on the grounds that they are both legal and overseen by a court. But what do the relevant laws actually do?

In a series of blog posts, the Project On Government Oversight will explore the legal framework behind the NSA surveillance programs, the larger problem of secret law, and the protections and incentives that exist (or don’t) for government whistleblowers.

Edward Snowden’s recent whistleblowing disclosures revealed that the National Security Agency (NSA) has been conducting mass electronic surveillance on American citizens. According to the leaked documents, Verizon has been handing over the phone records of millions of customers, the NSA program PRISM has collected information from internet giants such as Apple and Google, and the NSA has been—contrary to prior assurances—conducting blanket domestic surveillance.
These disclosures are not the first to reveal questionable NSA activities. In 2004, whistleblower Thomas Tamm leaked the existence of the NSA warrantless wiretapping program to The New York Times; the government raided his house but ultimately declined to prosecute. In 2006, whistleblower Thomas Drake exposed the existence of a wasteful and failing NSA surveillance program, Trailblazer. Drake was consequently charged under the Espionage Act—a charge that eventually was dropped. According to The Washington Post, there are additional NSA electronic surveillance programs currently in operation.

President Obama and government officials have tried to reassure the American public that the NSA surveillance programs are legal under the PATRIOT Act and the Foreign Intelligence Surveillance Act (FISA). But what do the PATRIOT Act and FISA actually provide? What is the Foreign Intelligence Surveillance Court (FISC) that purportedly authorizes secret surveillance? And what can be done to ensure that our national security programs respect fundamental civil liberties?


The PATRIOT Act was signed into law by President Bush in October 2001 following the terrorist attacks of September 11, 2001, without substantial debate or amendment. The PATRIOT Act made sweeping changes to a number of existing U.S. laws—including FISA—giving the Department of Justice (DOJ) and the NSA broad and far-reaching powers to conduct electronic surveillance.
Section 215 (codified at 50 U.S.C. § 1861, a part of FISA) allows the FBI to collect “any tangible things (including books, records, papers, documents, and other items)”—broad language that can be read to include almost anything. Indeed, FISC has apparently defined the relevant tangible things to include a phone company’s complete call database.

Ordinarily, the Fourth Amendment requires searches and seizures to be conducted under probable cause, a legal standard defined as the reasonable belief that, more likely than not, the person being searched is engaged in criminal activity. In order to receive authorization to collect the tangible things of U.S. persons, however, the FBI need only demonstrate to FISC that there are “reasonable grounds” that the tangible things are “relevant” to an investigation to protect against international terrorism or clandestine intelligence activities. The FBI must also demonstrate adoption of procedures to minimize the retention and dissemination of U.S. persons’ information (consistent with U.S. intelligence needs). The court must issue the order if the FBI so demonstrates, even if the application lacks probable cause.

Communications collected from U.S. persons must not derive solely from First Amendment activities—for example, collection because the FBI doesn’t like the website you visit or the books you check out of the library—but can derive in part from such actions. In addition, anyone who receives a Section 215 order to turn over tangible things to the government is prohibited from disclosing the warrant or the details of the requested records. Under fairly weak congressional oversight requirements, the Attorney General submits an annual report to Congress detailing the number of requests made, granted, modified, and denied.

FISC cites Section 215 as providing the legal authorization for the collection of telephone metadata. According to the leaked documents, FISC ordered Verizon, pursuant to Section 215, to hand over information related to both communications “between the United States and abroad,” and “wholly within the United States (including local telephone calls).” Evidence suggests that the government has demanded similar information from other telecommunications giants on orders renewed every three months.

Section 215 and fifteen other provisions of the PATRIOT Act were mandated to expire on December 31, 2005. In March 2006, President Bush signed the USA PATRIOT Improvement and Reauthorization Act, which made permanent 14 of the 16 expiring provisions and created a new sunset of December 31, 2009, for Sections 215 and 206 (a provision granting broad wiretap authority, but currently not implicated in the Snowden whistleblowing disclosures). The sunset for Sections 215 and 206 has been extended a number of times—most recently in the PATRIOT Sunsets Extension Act of 2011—each time without substantive change. Sections 215 and 206 will now sunset on June 1, 2015.

The Foreign Intelligence Surveillance Act (FISA)

Congress originally passed FISA in 1978 to establish a system of judicial review over foreign intelligence operations. In 2008—following the 2005 disclosure of NSA warrantless wiretapping—Congress passed the FISA Amendments Act. Title VII, created under the FISA Amendments, established additional procedures for targeting persons outside the U.S. and was set to sunset on December 31, 2012.

Section 702 of Title VII (codified in 2008 at 50 U.S.C. § 1881a) allows the Attorney General and the Director of National Intelligence to jointly authorize a surveillance program targeting persons “reasonably believed to be located outside the United States” for up to one year. The surveillance must collect “foreign intelligence,” defined roughly as information related to national defense, foreign affairs, or the ability to protect against actual or potential attacks, international terrorism, or clandestine intelligence activities.

A Section 702 program must not “intentionally” target U.S. persons, but does not protect communications to and from U.S. persons inadvertently caught up in the surveillance program. In applying for FISC authorization, the government must certify targeting and minimization procedures that will reduce the likelihood of surveilling U.S. persons. As the Constitution Project points out, however, the government does not need to identify particular targets or demonstrate probable cause.
On June 8, 2013, on the heels of the Snowden disclosures, National Intelligence Director James Clapper announced that Section 702 provides the legal justification for the PRISM program. PRISM purportedly allows the government to collect email content, file transfers, stored data, and voice and video chats from Internet companies such as Google, Microsoft, and Apple.

Although FISC must generally authorize the creation of Section 702 programs, a determination of “exigent circumstances” by the Attorney General and the Director of National Intelligence allows the government to implement a surveillance program first and request FISC authorization second. The Attorney General, the Director of National Intelligence, the DOJ Inspector General, and officials from each element of the intelligence community authorized to acquire foreign intelligence information must nevertheless, per Section 702, submit various reports at least once a year to the House and Senate intelligence and judiciary committees. These reports focus primarily on compliance with targeting and minimization procedures and on whether foreign intelligence information has been or will be obtained from the surveillance.

In response to the looming expiration of the FISA Amendments at the end of December 2012, President Obama signed FISA Amendments Act Reauthorization Act of 2012, renewing Title VII provisions through December 31, 2017. The final bill passed without any changes to Section 702.

The Foreign Intelligence Surveillance Court (FISC or FISA Court) and the Foreign Intelligence Surveillance Court of Review (FISCR or FISA Court of Review)

The 1978 FISA created FISC (governed by 50 U.S.C. § 1803) to authorize foreign intelligence surveillance requests. FISC consists of eleven district court judges that must represent at least seven of the eleven U.S. judicial circuits and of which at least three must live within 20 miles of Washington, D.C. FISC is currently composed of eight judges (the other three recently retired or completed their terms) presided over by Judge Reggie B. Walton from the District Court for the District of Columbia.

FISA also created the Foreign Intelligence Surveillance Court of Review (FISCR), which has jurisdiction over the denial by FISC of any government application for surveillance authorization. FISCR generally consists of three judges from the district courts or courts of appeals, but is currently composed of two judges, of whom Judge Morris S. Arnold of the Eighth Circuit presides. Judges on both courts are appointed by the Chief Justice of the Supreme Court and serve seven-year terms.
FISC has general jurisdiction over government requests to conduct electronic surveillance, including applications made under Sections 215 and 702. FISC hearings are secret—almost no opinions are released publically—and considered to be non-adversarial: the government simply presents evidence of minimization procedures and the relevancy of the tangible things to a terrorism investigation (Section 215) or that targeting and minimization procedures exist (Section 702). Out of nearly 34,000 surveillance requests submitted by the government since 1979, FISC has only rejected 11.

Some Proposals for Reform

Although the government claims that the recently revealed surveillance programs are legal under Sections 215 and 702, the legal framework outlined above raises serious constitutional and policy questions regarding our national security programs. In particular, the government’s refusal to reveal FISC opinions and executive branch memos that interpret and apply FISA and the PATRIOT Act create a category of “secret law” that hinders a national debate about how to best design national security policies.

“It is high time that we address the need for more oversight of the government’s national security claims,” said POGO Executive Director Danielle Brian in a statement released Monday. “How can we know if the government has struck the right balance between our security and our rights if its legal interpretations are cloaked in secrecy?”

In 2012, when Congress reauthorized Title VII provisions of the FISA Amendments, Senator Jeff Merkley (D-Ore.), with the support of Senators Mike Lee (R-Utah) and Ron Wyden (D-Ore.), attempted (but failed) to attach an amendment that would have required the government to either declassify or provide summaries of FISC opinions—reforms POGO and its partners support. On June 11, 2013, following the recent revelations, a bipartisan group of eight Senators reintroduced the Merkley measure as the “End Secret Law Act,” which would, if passed, force the Justice Department to unseal or release summaries of FISC rulings unless there is a national security reason to withhold. Representatives Adam Schiff (D-Calif.) and Todd Rokita (R-Ind.) have introduced a companion bill in the House.

In addition, Senator Patrick Leahy (D-Vt.) introduced the FISA Accountability and Privacy Protection Act of 2013 on Monday, cosponsored by Senators Mike Lee (R-Utah), Mark Udall (D-Colo.), Ron Wyden (D-Ore.), Richard Blumenthal (D-Conn.), and Jon Tester (D-Mont.). The bill would narrow the scope of Section 215 orders, sunset the FISA Amendments in June 2015, and mandate inspector general investigations of government surveillance programs. Senator Leahy had attempted to introduce similar legislation ahead of both the December 2012 FISA Amendments reauthorization and the 2011 PATRIOT Sunsets Extension (the latter with Senator Rand Paul’s (R-Ky.) bipartisan support), but without success. Hopefully the time is now ripe for broader, bipartisan support for these commonsense proposals.

POGO will further explore the problem of “secret law” and what protections (if any) exist for those who blow the whistle on government waste, fraud, and abuse. Stay tuned!
Image by Flickr user Kit.

 Director of Public Policy, POGO
angela canterbury Angela Canterbury is Director of Public Policy for the Project On Government Oversight.

 Legal Intern, POGO

Photograph of Aimee Thomson Aimee Thomson is currently a legal intern for the Project On Government Oversight.
Topics: Government Accountability
Related Content: Democracy, Government Secrecy, Intelligence
Authors: Aimee Thomson, Angela Canterbury

Claims that intelligence leaks hurt Obama are 'bunk'

  MSN news

Claims that intelligence leaks hurt Obama are 'bunk'

Outgoing US Ambassador Susan Rice speaks to reporters at her final news conference at the UN headquarters on June 25, 2013. Rice will start her new job as US national security adviser on July 1.
Susan Rice, the outgoing U.S. Ambassador to the U.N., downplayed impact of intelligence leaks by the former National Security Agency contractor Edward Snowden.

Outgoing US Ambassador Susan Rice speaks to reporters at her final news conference at the UN headquarters on June 25, 2013. Rice will start her new job as US national security adviser on July 1.
UNITED NATIONS — U.S. Ambassador to the United Nations Susan Rice dismissed claims that Edward Snowden's highly classified leaks have weakened the Obama presidency and damaged U.S. foreign policy, insisting that the United States will remain "the most influential, powerful and important country in the world."

Rice's remarks were her only public ones on Snowden and came in an interview with The Associated Press as she prepared to leave the U.N. post and start her new job Monday as President Barack Obama's national security adviser.

She said it's too soon to judge whether there will be any long-term serious repercussions from the intelligence leaks by the former National Security Agency contractor who fled to Hong Kong and then Russia after seizing documents disclosing secret U.S. surveillance programs in the U.S. and overseas, which he has shared with The Guardian and Washington Post newspapers.

Related: Susan Rice named national security adviser

"I don't think the diplomatic consequences, at least as they are foreseeable now, are that significant," she said.

U.S. Defense Secretary Chuck Hagel and Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, have called Snowden's leaks a serious breach that damaged national security. Hagel said Thursday an assessment of the damage is being done now.

"There will always be difficult issues of the day," Rice said, "and frankly this period is not particularly unique."

"I think the Snowden thing is obviously something that we will get through, as we've gotten through all the issues like this in the past," she said in the interview Thursday before heading to a lunch in her honor hosted by Secretary-General Ban Ki-moon.

The United States has charged Snowden with espionage and demanded his extradition, but China and Hong Kong let him fly to Moscow and the Russians have so far refused. The Snowden case has not only raised tensions with Moscow and Beijing but with many Americans concerned about the NSA collecting their Internet and phone data.

Rice dismissed commentators who say Snowden's disclosures have made Obama a lame duck, damaged his political base, and hurt U.S. foreign policy, saying: "I think that's bunk."
"I think the United States of America is and will remain the most influential, powerful and important country in the world, the largest economy, and the largest military, (with) a network of alliances, values that are universally respected," she said.

Related: Susan Rice battles critics as abrasive style takes toll

Rice said Obama has "significant ambitions and a real agenda" for his second term, pointing to major speeches last week on disarmament and nonproliferation and this week on the impact of climate change.

As for Snowden, she said, "It's often, if not always something, and U.S. leadership will continue to be unrivaled, demanded, expected — and reviled and appreciated around the world."

Rice, 48, is expected to bring her outspoken and aggressive negotiating style to her new, higher-profile job.

At the United Nations, she has been a bold and blunt ambassador, successfully pushing for tougher sanctions against Iran and North Korea and international intervention in Libya. But Libya ultimately caused her greatest professional disappointment when she became the face of the administration's bungled account of the terrorist attack in Benghazi that killed four Americans, including the U.S. ambassador.

The furor scuttled Rice's long-held hopes of becoming secretary of state when it became clear she would not gain Senate confirmation to that post, which went to John Kerry.

Rice has called her 4 1/2 years at the U.N. "the best job I ever had," and told the AP she would be "hard-pressed" to think of any better place to prepare for her new post.

"You get to deal with ... literally every country under the sun, and I think you get a unique feel for the orientations, interests, styles, of a wide, wide range of countries," she said.

To succeed at the U.N., Rice said, it's crucial to form alliances and coalitions, which change depending on the issue, so a friend one day can be an opponent the next day.

Rice has sparred repeatedly with Russia's U.N. Ambassador Vitaly Churkin, who can be equally blunt. But despite being on opposite sides of the Syrian conflict, which has paralyzed council action to end the fighting, Rice said they agree perhaps 85 percent of the time.

"I like and respect him," she said. "I think he likes and respects me, and it's been a good relationship. That's why I asked him to speak at my farewell. I asked people who were important to me. He's a very smart and a very funny guy and he can be a pain in the butt, too — and I tell him that to his face!"

At the farewell, Churkin delivered an off-the-record roast of Rice, without notes, that had some 300 diplomats, U.N. officials and journalists doubled-over in laughter.

The Syrian conflict will be near the top of Rice's agenda in Washington as will the nuclear ambitions of Iran and North Korea.

Rice said the result of Iran's presidential election earlier this month, a victory for Hasan Rouhani, a moderate who supports direct talks with Washington, "was a dramatic demonstration of the Iranian people's dissatisfaction with the status quo."

"To the extent that the leadership feels obliged to heed popular opinion — obviously we would hope they would — it may perhaps signal a readiness to move in a different direction, and if so, we would welcome it," she said.

Thursday, June 27, 2013

The Shocking, Super Secret, Unbelievably Wasteful World of Low-Tech Spying

  News & Politics  

The Shocking, Super Secret, Unbelievably Wasteful World of Low-Tech Spying

It's not just the NSA. The government deploys all sorts of informers, agents provocateurs and dirty tricks to spy on constititutionally protected, peaceful protest.

Photo Credit: Zhukov Oleg/
Only Martians, by now, are unaware of the phone and online data scooped upby the National Security Agency (though if it turns out that they are aware, the NSA has surely picked up their signals and crunched their metadata).  American high-tech surveillance is not, however, the only kind around.  There’s , also the lower tech, up-close-and-personal kind that involves informers and sometimes government-instigated violence.
Just how much of this is going on and in how coordinated a way no one out here in the spied-upon world knows.  The lower-tech stuff gets reported, if at all, only one singular, isolated event at a time -- look over here, look over there, now you see it, now you don’t.  What is known about such surveillance as well as the suborning of illegal acts by government agencies, including the FBI, in the name of counterterrorism has not been put together by major news organizations in a way that would give us an overview of the phenomenon.  (The ACLU has done by far the best job of compiling reports on spying on Americans of this sort.)
Some intriguing bits about informers and agents provocateurs briefly made it into the public spotlight when Occupy Wall Street was riding high.  But as always, dots need connecting.  Here is a preliminary attempt to sort out some patterns behind what could be the next big story about government surveillance and provocation in America.

Two Stories from Occupy Wall Street

The first is about surveillance. The second is about provocation.
On September 17, 2011, Plan A for the New York activists who came to be known as Occupy Wall Street was to march to the territory outside the bank headquarters of JPMorgan Chase.  Once there, they discovered that the block was entirely fenced in.  Many activists came to believe that the police had learned their initial destination from e-mail circulating beforehand.  Whereupon they headed for nearby Zuccotti Park and a movement was born.
The evening before May Day 2012, a rump Occupy group marched out of San Francisco’s Dolores Park and into the Mission District, a neighborhood where not so many 1-percenters live, work, or shop.  There, they proceeded to trash “mom and pop shops, local boutiques and businesses, and cars,” according toScott Rossi, a medic and eyewitness, who summed his feelings up this way afterward:  “We were hijacked.” The people “leading the march tonight,” he added, were “clean cut, athletic, commanding, gravitas not borne of charisma but of testosterone and intimidation. They were decked out in outfits typically attributed to those in the ‘black bloc’ spectrum of tactics, yet their clothes were too new, and something was just off about them. They were very combative and nearly physically violent with the livestreamers on site, and got ignorant with me, a medic, when I intervened... I didn’t recognize any of these people. Their eyes were too angry, their mouths were too severe. They felt ‘military’ if that makes sense. Something just wasn’t right about them on too many levels.”
He was quick to add, “I’m not one of those tin foil hat conspiracy theorists.  I don’t subscribe to those theories that Queen Elizabeth’s Reptilian slave driver masters run the Fed. I’ve read up on agents provocateurs and plants and that sort of thing and I have to say that, without a doubt, I believe 100% that the people that started tonight’s events in the Mission were exactly that.”
Taken aback, Occupy San Francisco condemned the sideshow: “We consider these acts of vandalism and violence a brutal assault on our community and the 99%.”
Where does such vandalism and violence come from?  We don’t know.  There are actual activists who believe that they are doing good this way; and there are government infiltrators; and then there are double agents who don’t know whothey work for, ultimately, but like smashing things or blowing them up.  By definition, masked trashers of windows in Oakland or elsewhere are anonymous.  In anonymity, they -- and the burners of flags and setters of bombs -- magnify their power.  They hijack the media spotlight.  In this way, tiny groups -- incendiary, sincere, fraudulent, whoever they are -- seize leversthat can move the entire world.


The Sting of the Clueless Bee

Who casts the first stone?  Who smashes the first window?  Who teaches bombers to build and plant actual or spurious bombs?  The history of the secret police planting agents provocateurs in popular movements goes back at least to nineteenth century France and twentieth century Russia.  In 1905, for example, the priest who led St. Petersburg’s revolution was some sort of double agent, as was the man who organized the assassination of the Czar’s uncle, the Grand Duke.  As it happens, the United States has its own surprisingly full history of such planted agents at work turning small groups or movements in directions that, for better or far more often worse, they weren’t planning on going.  One well-documented case is that of “Tommy the Traveler,” a Students for a Democratic Society (SDS) organizer who after years of trying to arouse violent action convinced two 19-year-old students to firebomb an ROTC headquarters at Hobart College in upstate New York. The writer John Schultz reported onlikely provocateurs in Chicago during the Democratic National Convention of 1968.  How much of this sort of thing went on?  Who knows?  Many relevant documents molder in unopened archives, or have been heavily redacted or destroyed.
As the Boston marathon bombing illustrates, there are homegrown terrorists capable of producing the weapons they need and killing Americans without the slightest help from the U.S. government.  But historically, it’s surprising how relatively often the gendarme is also a ringleader.  Just how often is hard to know, since information on the subject is fiendishly hard to pry loose from the secret world.
Through 2011, 508 defendants in the U.S. were prosecuted in what the Department of Justice calls “terrorism-related cases.” According to Mother Jones’s Trevor Aaronson, the FBI ran sting operations that “resulted in prosecutions against 158 defendants” -- about one-third of the total.  “Of that total, 49 defendants participated in plots led by an agent provocateur -- an FBI operative instigating terrorist action.  With three exceptions, all of the high-profile domestic terror plots of the last decade were actually FBI stings.”
In Cleveland, on May Day of 2012, in the words of a Rolling Stone exposé, the FBI “turned five stoner misfits into the world's most hapless terrorist cell.” To do this, the FBI put a deeply indebted, convicted bank robber and bad-check passer on their payroll, and hooked him up with an arms dealer, also paid by the Bureau.  The FBI undercover man then hustled five wacked-out wannabe anarchists into procuring what they thought was enough C4 plastic explosive to build bombs they thought would blow up a bridge.  The bombs were, of course, dummies.  The five were arrested and await trial.
What do such cases mean?  What is the FBI up to?  Trevor Aaronson offers this appraisal:
“The FBI's goal is to create a hostile environment for terrorist recruiters and operators -- by raising the risk of even the smallest step toward violent action. It's a form of deterrence… Advocates insist it has been effective, noting that there hasn't been a successful large-scale attack against the United States since 9/11. But what can't be answered -- as many former and current FBI agents acknowledge -- is how many of the bureau's targets would have taken the step over the line at all, were it not for an informant.”
Perhaps Aaronson is a bit too generous.  The FBI may, at times, be anything but thoughtful in its provocations.  It may, in fact, be flatly dopey.  COINTELPRO records released since the 1960s under the Freedom of Information Act (FOIA) show that it took FBI Director J. Edgar Hoover until 1968 to discover that there was such a thing as a New Left that might be of interest.  Between 1960 and 1968, as the New Left was becoming a formidable force in its own right, the Bureau’s top officials seem to have thought that groups like Students for a Democratic Society were simply covers for the Communist Party, which was like mistaking the fleas for the dog.  We have been assured that the FBI of today has learned something since the days of J. Edgar Hoover.  But of ignorance and stupidity there is no end.

Trivial and Nontrivial Pursuits

Entrapment and instigation to commit crimes are in themselves genuine dangers to American liberties, even when the liberties are those of the reckless and wild. But there is another danger to such pursuits: the attention the authorities pay to nonexistent threats (or the creation of such threats) is attention not paid to actual threats. 
Anyone concerned about the security of Americans should cast a suspicious eye on the allocation or simply squandering of resources on wild goose chases. Consider some particulars which have recently come to light.  Under the Freedom of Information Act, the Partnership for Civil Justice Fund (PCJF) has unearthed documents showing that, in 2011 and 2012, the Department of Homeland Security (DHS) and other federal agencies were busy surveilling and worrying about a good number of Occupy groups -- during the very time that they were missing actual warnings about actual terrorist actions. 
From its beginnings, the Occupy movement was of considerable interest to the DHS, the FBI, and other law enforcement and intelligence agencies, while true terrorists were slipping past the nets they cast in the wrong places.  In the fall of 2011, the DHS specifically asked its regional affiliates to report on “Peaceful Activist Demonstrations, in addition to reporting on domestic terrorist acts and ‘significant criminal activity.’”
Aware that Occupy was overwhelmingly peaceful, the federally funded Boston Regional Intelligence Center (BRIC), one of 77 coordination centers known generically as “fusion centers,” was busy monitoring Occupy Boston daily.  As the investigative journalist Michael Isikoff recently reported, they were not only tracking Occupy-related Facebook pages and websites but “writing reports on the movement’s potential impact on ‘commercial and financial sector assets.’”
It was in this period that the FBI received the second of two Russian police warnings about the extremist Islamist activities of Tamerlan Tsarnaev, the future Boston Marathon bomber.  That city’s police commissioner later testified that the federal authorities did not pass any information at all about the Tsarnaev brothers on to him, though there’s no point in letting the Boston police off the hook either.  The ACLU has uncovered documents showing that, during the same period, they were paying close attention to the internal workings of…Code Pink and Veterans for Peace.

Public Agencies and the “Private Sector” 

So we know that Boston’s master coordinators -- its Committee on Public Safety, you might say -- were worried about constitutionally protected activity, including its consequences for “commercial and financial sector assets.”  Unsurprisingly, the feds worked closely with Wall Street even before the settling of Zuccotti Park.  More surprisingly, in Alaska, Alabama, Florida, Mississippi, Tennessee, and Wisconsin, intelligence was not only pooled among public law enforcement agencies, but shared with private corporations -- and vice versa.

Nationally, in 2011, the FBI and DHS were, in the words of Mara Verheyden-Hilliard, executive director of the Partnership for Civil Justice Fund, “treating protests against the corporate and banking structure of America as potential criminal and terrorist activity.”  Last December using FOIA, PCJF obtained 112 pages of documents (heavily redacted) revealing a good deal of evidence for what might otherwise seem like an outlandish charge: that federal authorities were, in Verheyden-Hilliard’s words, “functioning as a de facto intelligence arm of Wall Street and Corporate America.”  Consider these examples from PCJF’s summary of federal agencies working directly not only with local authorities but on behalf of the private sector:
• “As early as August 19, 2011, the FBI in New York was meeting with the New York Stock Exchange to discuss the Occupy Wall Street protests that wouldn’t start for another month. By September, prior to the start of the OWS, the FBI was notifying businesses that they might be the focus of an OWS protest.”
• “The FBI in Albany and the Syracuse Joint Terrorism Task Force disseminated information to... [22] campus police officials... A representative of the State University of New York at Oswego contacted the FBI for information on the OWS protests and reported to the FBI on the SUNY-Oswego Occupy encampment made up of students and professors.”
• An entity called the Domestic Security Alliance Council (DSAC), “a strategic partnership between the FBI, the Department of Homeland Security, and the private sector,” sent around information regarding Occupy protests at West Coast ports [on Nov. 2, 2011] to “raise awareness concerning this type of criminal activity.” The DSAC report contained “a ‘handling notice’ that the information is ‘meant for use primarily within the corporate security community. Such messages shall not be released in either written or oral form to the media, the general public or other personnel…’ Naval Criminal Investigative Services (NCIS) reported to DSAC on the relationship between OWS and organized labor.”
• DSAC gave tips to its corporate clients on “civil unrest,” which it defined as running the gamut from “small, organized rallies to large-scale demonstrations and rioting.” It advised corporate employees to dress conservatively, avoid political discussions and “avoid all large gatherings related to civil issues. Even seemingly peaceful rallies can spur violent activity or be met with resistance by security forces.”
• The FBI in Anchorage, Jacksonville, Tampa, Richmond, Memphis, Milwaukee, and Birmingham also gathered information and briefed local officials on wholly peaceful Occupy activities.
• In Jackson, Mississippi, FBI agents “attended a meeting with the Bank Security Group in Biloxi, MS with multiple private banks and the Biloxi Police Department, in which they discussed an announced protest for ‘National Bad Bank Sit-In-Day’ on December 7, 2011.”  Also in Jackson, “the Joint Terrorism Task Force issued a ‘Counterterrorism Preparedness’ alert” that, despite heavy redactions, notes the need to ‘document…the Occupy Wall Street Movement.’”
 Sometimes, “intelligence” moves in the opposite direction -- from private corporations to public agencies.  Among the collectors of such “intelligence” are entities that, like the various intelligence and law enforcement outfits, do not make distinctions between terrorists and nonviolent protesters.  ConsiderTransCanada, the corporation that plans to build the 1,179 mile Keystone-XL tar sands pipeline across the U. S. and in the process realize its “vision to become the leading energy infrastructure company in North America.“ The anti-pipeline group Bold Nebraska filed a successful Freedom of Information Act request with the Nebraska State Patrol and so was able to putTransCanada’s briefing slideshow up online.

So it can be documented in living color that the company lectured federal agents and local police to look into the use of “anti-terrorism statutes” against peaceful anti-Keystone activists.  TransCanada showed slides that cited as sinister the “attendance” of Bold Nebraska members at public events, noting “Suspicious Vehicles/Photography.” TransCanada alerted the authorities that Nebraska protesters were guilty of “aggressive/abusive behavior,” citing a local anti-pipeline group that, they said, committed a “slap on the shoulder” at the Merrick County Board Meeting (possessor of said shoulder unspecified).  They fingered nonviolent activists by name and photo, paying them the tribute of calling them “'Professionals' & Organized.” Native News Network pointed out that “although TransCanada's presentation to authorities contains information about property destruction, sabotage, and booby traps, police in Texas and Oklahoma have never alleged, accused, or charged Tar Sands Blockade activists of any such behaviors.”

Centers for Fusion, Diffusion, and Confusion

After September 11, 2001, government agencies at all levels, suddenly eager to break down information barriers and connect the sort of dots that had gone massively unconnected before the al-Qaida attacks, used Department of Homeland Security funds to start “fusion centers.”  These are supposed to coordinate anti-terrorist intelligence gathering and analysis.  They are also supposed to “fuse” intelligence reports from federal, state, and local authorities, as well as private companies that conduct intelligence operations.  According tothe ACLU, at least 77 fusion centers currently receive federal funds.

Much is not known about these centers, including just who runs them, by what rules, and which public and private entities are among the fused.  There is nothing public about most of them.  However, some things are known about a few.  Several fusion center reports that have gone public illustrate a remarkably slapdash approach to what constitutes “terrorist danger” and just what kinds of data are considered relevant for law enforcement.  In 2010, the American Civil Liberties Union of Tennessee learned, for instance, that the Tennessee Fusion Center was “highlighting on its website map of ‘Terrorism Events and Other Suspicious Activity’ a recent ACLU-TN letter to school superintendents.  The letter encourages schools to be supportive of all religious beliefs during the holiday season.” (The map is no longer online.)

So far, the prize for pure fused wordiness goes to a 215-page manual issued in 2009 by the Virginia Fusion Center (VFC), filled with Keystone Kop-style passages among pages that in their intrusive sweep are anything but funny.  The VFC warned, for instance, that “the Garbage Liberation Front (GLF) is an ecological direct action group that demonstrates the joining of anarchism and environmental movements.”  Among GLF’s dangerous activities well worth the watching, the VFC included “dumpster diving, squatting, and train hopping.”

In a similarly jaw-dropping manner, the manual claimed -- the italics are mine -- that “Katuah Earth First (KEF), based in Asheville, North Carolina, sends activists throughout the region to train and engage in criminal activity. KEF has trained local environmentalists in non-violent tactics, including blocking roads and leading demonstrations, at action camps in Virginia.  While KEF has been primarily involved in protests and university outreach, members have also engaged in vandalism.”  Vandalism!  Send out an APB!

The VFC also warned that, “[a]lthough the anarchist threat to Virginia is assessed as low, these individuals view the government as unnecessary, which could lead to threats or attacks against government figures or establishments.”  It singled out the following 2008 incidents as worth notice:
• At the Martinsville Speedway, “A temporary employee called in a bomb threat during a Sprint Cup race... because he was tired of picking up trash and wanted to go home.”
• In Missouri, “a mobile security team observed an individual photographing an unspecified oil refinery... The person abruptly left the scene before he could be questioned."
• Somewhere in Virginia, “seven passengers aboard a white pontoon boat dressed in traditional Middle Eastern garments immediately sped away after being sighted in the recreational area, which is in close proximity to” a power plant.
What idiot or idiots wrote this script?
Given a disturbing lack of evidence of terrorist actions undertaken or in prospect, the authors even warned:
“It is likely that potential incidents of interest are occurring, but that such incidents are either not recognized by initial responders or simply not reported. The lack of detailed information for Virginia instances of monitored trends should not be construed to represent a lack of occurrence.”
Lest it be thought that Virginia stands alone and shivering on the summit of bureaucratic stupidity, consider an “intelligence report” from the North Central Texas fusion center, which in a 2009 “Prevention Awareness Bulletin” described, in the ACLU’s words, “a purported conspiracy between Muslim civil rights organizations, lobbying groups, the anti-war movement, a former U.S. Congresswoman, the U.S. Treasury Department, and hip hop bands to spread tolerance in the United States, which would ‘provide an environment for terrorist organizations to flourish.’”
And those Virginia and Texas fusion centers were hardly alone in expanding the definition of “terrorist” to fit just about anyone who might oppose government policies.  According to a 2010 report in the Los Angeles Times, the Justice Department Inspector General found that “FBI agents improperly opened investigations into Greenpeace and several other domestic advocacy groups after the Sept. 11 terrorist attacks in 2001, and put the names of some of their members on terrorist watch lists based on evidence that turned out to be ‘factually weak.’”  The Inspector General called "troubling" what the Los Angeles Times described as “singling out some of the domestic groups for investigations that lasted up to five years, and were extended ‘without adequate basis.’”
Subsequently, the FBI continued to maintain investigative files on groups like Greenpeace, the Catholic Worker, and the Thomas Merton Center in Pittsburgh, cases where (in the politely put words of the Inspector General’s report) “there was little indication of any possible federal crimes… In some cases, the FBI classified some investigations relating to nonviolent civil disobedience under its 'acts of terrorism' classification." 

One of these investigations concerned Greenpeace protests planned for ExxonMobil shareholder meetings.  (Note: I was on Greenpeace’s board of directors during three of those years.)  The inquiry was kept open "for over three years, long past the shareholder meetings that the subjects were supposedly planning to disrupt."  The FBI put the names of Greenpeace members on its federal watch list.  Around the same time, an ExxonMobil-funded lobby got the IRS to audit Greenpeace.

This counterintelligence archipelago of malfeasance and stupidity is sometimes fused with ass-covering fabrication.  In Pittsburgh, on the day after Thanksgiving 2002 (“a slow work day” in the Justice Department Inspector General’s estimation), a rookie FBI agent was outfitted with a camera, sent to an antiwar rally, and told to look for terrorism suspects.  The “possibility that any useful information would result from this make-work assignment was remote,” the report added drily.

“The agent was unable to identify any terrorism subjects at the event, but he photographed a woman in order to have something to show his supervisor.  He told us he had spoken to a woman leafletter at the rally who appeared to be of Middle Eastern descent, and that she was probably the person he photographed.”

The sequel was not quite so droll.  The Inspector General found that FBI officials, including their chief lawyer in Pittsburgh, manufactured postdated “routing slips” and the rest of a phony paper trail to justify this surveillance retroactively.

Moreover, at least one fusion center has involved military intelligence in civilian law enforcement.  In 2009, a military operative from Fort Lewis, Washington, worked undercover collecting information on peace groups in the Northwest.  In fact, he helped run the Port Militarization Resistance group’s Listserv.  Once uncovered, he told activists there were others doing similar work in the Army.  How much the military spies on American citizens is unknown and, at the moment at least, unknowable.

Do we hear an echo from the abyss of the counterintelligence programs of the 1960s and 1970s, when FBI memos -- I have some in my own heavily redacted files obtained through an FOIA request -- were routinely copied to military intelligence units?  Then, too, military intelligence operatives spied on activists who violated no laws, were not suspected of violating laws, and had they violated laws, would not have been under military jurisdiction in any case.  During those years, more than 1,500 Army intelligence agents in plain clothes were spying, undercover, on domestic political groups (according toMilitary Surveillance of Civilian Politics, 1967-70, an unpublished dissertation by former Army intelligence captain Christopher H. Pyle). They posed as students, sometimes growing long hair and beards for the purpose, or as reporters and camera crews.  They recorded speeches and conversations on concealed tape recorders. The Army lied about their purposes, claiming they were interested solely in “civil disturbance planning.”

Years later, I met one of these agents, now retired, in San Francisco.  He knew more about what I was doing in the late 1960s than my mother did.

Squaring Circles

 In 2009, President Obama told the graduating class at the Naval Academy that, “as Americans, we reject the false choice between our security and our ideals.”  Security and ideals: officially we want both.  But how do you square circles, especially in a world in which “security” has often enough become a stand-in for whatever intelligence operatives decide to do?

The ACLU’s Tennessee office sums the situation up nicely: “While the ostensible purpose of fusion centers, to improve sharing of anti-terrorism intelligence among different levels and arms of government, is legitimate and important, using the centers to monitor protected First Amendment activity clearly crosses the line.”  Nationally, the ACLU rightly worries about who is in charge of fusion centers and by what rules they operate, about what becomes of privacy when private corporations are inserted into the intelligence process, about what the military is doing meddling in civilian law enforcement, about data-mining operations that Federal guidelines encourage, and about the secrecy walls behind which the fusion centers operate.

Even when fusion centers do their best to square that circle in their ownguidelines, like the ones obtained by the ACLU from Massachusetts’s Commonwealth Fusion Center (CFC), the knots in which they tie themselves are all over the page.  Imagine, then, what happens when you let informers oragents provocateurs loose in actual undercover situations.

“Undercovers,” writes the Massachusetts CFC, “may not seek to gain access to private meetings and should not actively participate in meetings…  At the preliminary inquiry stage, sources and informants should not be used to cultivate relationships with persons and groups that are the subject of the preliminary inquiry.”  So far so good.  Then, it adds, “Investigators may, however, interview, obtain, and accept information known to sources and informants.”  By eavesdropping, say?  Collecting trash?  Hacking?  All without warrants?  Without probable cause?

“Undercovers and informants,” the guidelines continue, “are strictly prohibited from engaging in any conduct the sole purpose of which is to disrupt the lawful exercise of political activity, from disrupting the lawful operations of an organization, from sowing seeds of distrust between members of an organization involved in lawful activity, or from instigating unlawful acts or engaging in unlawful or unauthorized investigative activities.”  Now, go back and note that little, easy-to-miss word “sole.”  Who knows just what grim circles that tiny word squares?

The Massachusetts CFC at least addresses the issue of entrapment: “Undercovers should not become so involved in a group that they are participating in directing the operations of a group, either by accepting a formal position in the hierarchy or by informally establishing the group's policy and priorities. This does not mean an undercover cannot support a group's policies and priorities; rather an undercover should not become a driving force behind a group's unlawful activities.”  Did Cleveland’s fusion center have such guidelines?  Did they follow them?  Do other state fusion centers?  We don’t know.

Whatever the fog of surveillance, when it comes to informers, agents provocateurs, and similar matters, four things are clear enough:
• Terrorist plots arise, in the United States as elsewhere, with the intent of committing murder and mayhem. Since 2001, in the U.S., these have been almost exclusively the work of freelance Islamist ideologues like the Tsarnaev brothers of Boston.  None have been connected in any meaningful way with any legitimate organization or movement.
• Government surveillance may in some cases have been helpful in scotching such plots, but there is no evidence that it has been essential.
• Even based on the limited information available to us, since September 11, 2001, the net of surveillance has been thrown wide indeed.  Tabs have been kept on members of quite a range of suspect populations, including American Muslims, anarchists, and environmentalists, among others -- in situation after situation where there was no probable cause to suspect preparations for a crime.
• At least on occasion -- we have no way of knowing how often -- agents provocateurs on government payrolls have spurred violence.
How much official unintelligence is at work?  How many demonstrations are being poked and prodded by undercover agents?  How many acts of violence are being suborned?  It would be foolish to say we know.  At least equally foolish would be to trust the authorities to keep to honest-to-goodness police work when they are so mightily tempted to take the low road into straight-out, unwarranted espionage and instigation. 
Todd Gitlin is a professor of journalism and sociology at Columbia University, the chair of the PhD program in communications, and the author of The Whole World Is Watching: Mass Media in the Making and Unmaking of the New LeftThe Sixties: Years of Hope, Days of Rage; and Occupy Nation: The Roots, the Spirit, and the Promise of Occupy Wall Street.

Wednesday, June 26, 2013

Seven Myths About Edward Snowden, NSA Whistleblower

Seven Myths About Edward Snowden, NSA Whistleblower

Edward Snowden. (Courtesy of

So many questions! How much of our personal information can the NSA get at, with and without a warrant? What exactly does “server” mean on that NSA PowerPoint slide? Is Snowden in Moscow, Havana, Quito, none of the above? Tracking the fast-evolving scandal of NSA surveillance and whistleblower Edward Snowden requires a bullshit-detector cranked up to eleven. Though the NSA-Snowden affair is scarcely three weeks old, all manner of official folklore and panic-infused idées reçues have already glommed on, limpet-like, to media accounts, often deforming the story beyond recognition. Below is your handy myth-stripping guide to understanding this critical news item.

Myth 1: Leaks of top-secret material are exceedingly rare, so Edward Snowden’s transgression obviously cries out for punishment.

From the banshee reactions of various pols and pundits one might have thought that showing classified material to the media is Washington’s ultimate taboo. What rot! Official leaks are common as dirt, and one can barely go a week without reading in The New York Times or The Washington Post some story built on an unnamed high official’s confidential leaks. Good thing too, because it’s thanks to leaks that we learned the truth about the Watergate break-in, the Vietnam War, Obama’s officially “secret” drone strike program. The Bush-Cheney administration leaked classified prewar intel on Iraq to suit its interests (h/t Jack Shafer), and a top-secret memo on military strategy from Obama’s ambassador to Afghanistan, retired general Karl Eikenberry, wound up on the front page of The New York Times. (Many believe it was the White House itself that leaked that one.) Obama’s former chief of staff William Daley bragged of his leaking prowess to Politico, but made sure to give props to his predecessor Rahm Emanuel as the ultimate “leaker-in-chief.”
Washington leaks are not new; whole gastronomic guides to them have been published. As former Secretary of Defense Robert Gates put it three years ago while tamping down the panic from Bradley Manning’s mass exfiltration, “Washington has always leaked like a sieve and everyone knows it.”

Myth 2: The NSA surveillance program has prevented dozens of terrorist attacks, and now Edward Snowden has ruined it! 

Ah, but what role has NSA surveillance played in preventing terror attacks? To state the obvious, the balancing act between security and liberty assumes that the intrusive security measures are effective. Have they been?

Supporters of the program insist that the dragnet surveillance has caught lots of terrorists. Senator Dianne Feinstein, chair of the Senate Intelligence Committee, informs us that the program has foiled “multiple” potential attacks, without giving much more detail. More recently, NSA chieftain General Keith Alexander insisted that the NSA monitoring of e-mail and phone calls has stopped “more than fifty plots” in the United States and overseas.

But how well do these outsized claims hold up? The NSA leak has invited a fresh wave of scrutiny of official claims of surveillance results, from canny bloggers like Marcy Wheeler, from The Guardian, even from ABC News. It’s not just the media—senators are getting in on the act, with Mark Udall announcing that he is not “convinced that the collection of this vast trove of data has led to disruption of plots.”

At the supermarket last week somebody told me she supported NSA surveillance because of the Boston Marathon bombing that the program failed to stop. This is obviously irrational, but it does force a question: If NSA spying is not achieving any of its security goals, just what is the point of so much surveillance?

Myth 3: Glenn Greenwald committed a crime by breaking the NSA/Snowden story. 

Greenwald, an American lawyer turned blogger turned columnist and reporter for The Guardian, broke the story of NSA dragnet surveillance, and his important scoop has some people upset.

Like Representative Peter King, the former chair of the House Committee on Homeland Security, who frothily opined two weeks ago that Greenwald should be thrown in jail, even though the legality of publishing leaked confidential information is well-established under American law. The excitable King, whose previous fundraising for the Noraid charity would make him criminally liable for “material support” for the terrorist IRA under today’s slackened standards, would do well to refrain from accusing others of national security crimes. Washington Post columnist (and torture enthusiast) Marc Thiessen dug up an archaic statute that criminalizes publication of signals intelligence. The actual enforcement of this law is as likely, and as sensible, as Gainesville, Georgia, enforcing its legal prohibition against eating fried chicken with a knife and fork.

But wait—there’s more! Yesterday morning, Meet the Press host David Gregory asked Greenwald himself why he shouldn’t face criminal charges, “to the extent that [he has] aided and abetted Snowden.” Gregory claimed he was “just asking questions”—not making accusations. To the extent that Gregory beats his wife—hey, just asking hypothetical questions here, not making accusations!—I submit that the TV host is disingenuous. Gregory, who has never had an important scoop in his softball career, also had the cheek to imply that Greenwald isn’t really a journalist at all. As Fox News’s Kirsten Powers tweeted,

O doubly calamitous week, to have lost Michael Hastings and still have David Gregory.

Myth 4. Snowden isn’t a real whistleblower because he spilled to the media instead of taking his concerns to his superiors at NSA.

Last week USA Today scored a videojournalism coup by sitting down a group of former NSA officials-turned-whistleblowers who between them had a century of experience at the agency. Thomas Drake, William Binney and J. Kirk Wiebe did not agree on everything, but they reached an instant consensus that Snowden did exactly the right thing in bypassing the NSA’s internal system and leaking to the press, given that the NSA had fobbed off or bottled up their own complaints for years without taking any action. It would, of course, be peachy if our security institutions responded to internal criticism, but that, according to long-serving veterans of those institutions, is not their nature.

Myth 5: We all should have expected this kind of mass surveillance was happening, so what’s the big deal? 

When the scandal first broke, David Simon, creator of The Wire, pointed out that the Baltimore police have been using similar surveillance tactics against suspected crack dealers for years, so what’s the big deal? In fact, many Americans find it to be rather a big deal that the federal government is treating all of us the way the Baltimore police treat suspected crack dealers and find Simon’s tirade irrational (and really annoying). What Simon’s outburst does usefully reveal is that the internalization of Stasi values is not always meek and mild but is just as likely to be accompanied by strutting macho bluster.

As for former House Intelligence Committee member Jane Harman, she too sees nothing new in the NSA surveillance and told Gwen Ifill that the law’s been on the books since FISA courts were established in 1978 then amended with plenty of public debate in 2008. (In 2006 Harman was herself caught on an NSA wiretap offering to lobby for AIPAC personnel charged with espionage, and she was none too pleased about it, but the experience apparently did not infect her with any “empathy” for other Americans now vulnerable to the same surveillance.)

There’s no explaining it away: the NSA’s amassing your phone records and getting into your e-mail is a new and serious state invasion of every citizen’s freedom; even those with nothing to hide have everything to fear.

Myth 6: Snowden good, Manning bad. 

Snowden’s released far fewer documents than did Pfc Bradley Manning, whose leak is the largest in US history. For many, this makes Snowden’s disclosure easier to defend, and therefore better.

Enough with the Goofus-and-Gallant dichotomizing. Snowden himself defends Bradley Manning as a “classic whistleblower” who was “inspired by the public good,” and there is no need to make either a villain. And the demonization of Manning is itself based on its own corpus of folklore, beginning with the non-fact that Manning’s leaks were a “data dump,” as chronically misreported. In fact Manning’s valuable disclosures were filtered first by WikiLeaks and then through mainstream publications like The New York Times, Der Spiegel, The Guardian and Le Monde. Only the State Department cables leaked by Manning wound up in their unexpurgated entirety online, but any harm from this misstep has been de minimis, and far outweighed by what we have learned. The blogger OhTarzie has done a stellar job parsing the essential similarity between Snowden’s and Manning’s leaks.

Myth 7: Because the NSA spying program originated in our legal, legislative process, there just can’t be anything wrong with it. 

From the president himself on down to lawyer-pundit Jeffrey Toobin, many have pooh-poohed concerns about NSA spying by assuring us that the surveillance was “legally authorized”—and if it’s legal, what could possibly be bad about it?

First, we might ask how “legal” the program is, based as it is on secret interpretations of the FISA law and secret decisions made by the FISA court. Is this good legal process? In its thirty-three years, the FISA court has rejected only eleven out of 33,900 FISA requests: effectively, a rubber stamp. The lead author of the Patriot Act, Representative Jim Sensenbrenner, who is most definitely not a card-carrying ACLU member, has repudiated the NSA surveillance as an unlawful abuse of the statute he wrote. (See also this brilliantly designed ACLU one-pager examining the dubious legal process that spawned the NSA surveillance program.)

Second, just because something is legally permissible does not mean it is wise, effective, just or terrific in any way. Jeffrey Toobin could legally have unprotected sex with a houseful of heroin addicts, then liquidate his assets and give the money to Sarah Palin’s PAC: all of this would be legal. Only a lawyer, and not a very good one, would ever take mere legality an indicator for wisdom, justice or efficacy. We have every right to be discontent with government actions that might be legal while being wrong and foolish for any number of other reasons.

By the way, is there an absolute duty to obey the law? This was the implication of Chicago law professor Geoffrey Stone’s purse-lipped scolding of young Snowden. Don’t get Stone wrong; the professor “believes strongly in government transparency, but even more strongly in the orderly rule of law.” I wonder if Stone dares talk this twaddle to a lecture hall that includes LGBT and black students. Does Geoff Stone think that gay and lesbian couples who had illegal sex decades ago were criminals deserving prosecution? Does Stone fault Harriet Tubman for failing to turn herself in after the many glorious capital crimes she committed in her exemplary life?

We all live in a society of laws—can’t do without them—but that does not make our laws infallible. Jurists, in their vanity, frequently mistake the material of their chosen field as divine wisdom handed down from Mount Sinai. We humans, however, should remember that laws are rules made by the state, no more and no less; rules are only as clean or as dirty as our politics and our history. As Columbia academic Marc Lamont Hill pointed out to Piers Morgan in a discussion of Snowden’s leak, “Many heroes break laws.” This line of argument is as old as Antigone, as old as law itself.

Free Bonus! Myth 8: The Democratic Party cares deeply about civil liberties.

The NSA spying/Snowden story has driven a wedge through the Democratic Party–oriented media and intelligentsia. Though many Democrats preached cool about civil liberties under Bush and Cheney, now journalists like Talking Points Memo’s Joshua Micah Marshall profess nary a qualm with Obama’s invasive snooping. Wonky liberals at The American Prospect inform us that “we must reconcile with the need for data collection,” while parroting official claims of the program’s tactical effectiveness; meanwhile, their officemates, The American Conservative (co-founded by Pat Buchanan!), condemn the dragnet surveillance without equivocation. The last article published by the late, tragically irreplaceable Michael Hastings examines why Democrats like to spy on their fellow Americans.

Though the surveillance enjoys support from Democrats and Republicans alike­, the opposition to it is equally bipartisan, with veteran social democrat Representative John Conyers co-sponsoring a bill to rein in the NSA with Tea Party freshman Representative Justin Amash, two ideologically antipodal Michiganders united in defense of civil liberties. Nice Democrats, please know this: the NSA surveillance program will someday be in the hands of a Republican president—will you support it then?

Was Glenn Greenwald aiding and abetting Snowden? NBC’s David Gregory thinks it’s a valid question—but John Nichols argues otherwise.

Related Topics: Law | Increased Security After 9-11 | Politics