Privacy through a PRISM, darkly

Through the US prism of self-righteousness, no secret spying is ever illegal. But America’s moral bankruptcy should not cause Australia’s chief law officer to deny truth, reality and the law.

Privacy through a PRISM, darkly

By Bernard Keane of Crikey

The sheer volume of revelations from whistleblower Edward Snowden (or from the UK government pretending to be Edward Snowden?) about the vast surveillance state established by the US government has made it hard to keep track of what we now know the US National Security Agency has been doing.

However, there are a number of conclusions we’re able to draw from both the revelations themselves and the response to them by governments.

1. Much of the internet-wide surveillance conducted by the NSA has been illegal even under the extraordinarily broad terms allowed by US Congress. The illegality has been confirmed by the NSA itself in leaked internal audits and even by the court that normally acts as a rubber stamp for surveillance, the Foreign Intelligence Surveillance Court, which stopped the NSA from continuing to collect tens of thousands of purely domestic emails a year.
.
2. This vast power has, inevitably, been abused by individuals. The NSA has admitted, in a follow-up to revelations several years ago that its agents listened in to intimate discussions between US defence personnel purely for titillation, that its agents have used the vast surveillance apparatus to stalk “love interests” — although the NSA only knows about the cases where stalkers within the NSA voluntarily reported themselves.
.
3. The NSA’s surveillance is not confined to terrorism or national security. The NSA has spied on US allies in the EU and on the United Nations. The NSA’s surveillance network was used to spy on Kim Dotcom, who has been called many things by the US government, the NZ government and the copyright cartel, but never “terrorist”. The UK spied on delegates to a British G20 meeting.
That is, once the apparatus has been established, the temptation to use it for purposes other than national security has proved too great.
.
4. Despite their denials, Silicon Valley’s biggest companies, like Microsoft, Facebook, Apple and Google are totally complicit in this surveillance — to the extent of being paid millions of dollars by the US government to offset their compliance costs.
.
5. The most senior officials and politicians lie about NSA surveillance. The head of the NSA, General Keith Alexander, lied about holding data on US citizens. National Director of Intelligence James Clapper perjured himself before Congress in claiming there was no surveillance of Americans. US President Barack Obama’s carefully parsed claim that “no one is listening to your calls” (as distinct from collecting vast troves of data about the calls) was proven to be wrong by the NSA’s own audit, which revealed thousands of domestic calls a year are intercepted by the NSA. The chairman of the House Intelligence Committee claimed Edward Snowden was lying about the capacity of the NSA to place any American under surveillance without a warrant, until the capacity of the XKeyscore program to query internet content of any email address with a pro forma justification was revealed.
.

   

6. The NSA does not have effective control of its data. It does not know what information Snowden has. And if it can’t tell months later what Snowden took, it can’t know how many of its staff are using its surveillance apparatus illegally, or provide any assurance the data it is hoovering up from the internet isn’t being transferred to other countries or sold to companies or organised crime.
.
7. The response of governments to being caught out in secret, illegal surveillance is to use national security legislation to pursue journalists and whistleblowers. Snowden is being pursued by the US government and has been forced to seek asylum in Russia. Chelsea Manning has been sentenced to 35 years’ jail for revealing US war crimes. US journalists have been subpoenaed and spied upon to track down whistleblowers. The partner of journalist Glenn Greenwald, who was previously targeted by US firms in relation to WikiLeaks, was stopped by British authorities under UK anti-terrorism laws, detained and robbed of his possessions. Journalist Barrett Brown remains in prison facing charges totaling more than 100 years for sharing a link. The Guardian was forced to go through the ridiculous theatre of destroying devices at the request of the UK government.
.
8. But the rule of law is only for the media and whistleblowers, not for governments. Clapper has not been charged with perjury despite admitting he gave false testimony (indeed, he is running the “review” of mass surveillance requested by Obama). Perpetrators of war crimes in Afghanistan and Iraq exposed by Manning have never been prosecuted or even investigated. NSA officials have not been held to account for illegal surveillance, or for abuse of their own systems by NSA staff. Former UK Lord Chancellor Charles (Lord) Falconer, who helped introduce the UK legislation under which Greenwald’s partner, David Miranda, was detained, has said bluntly that the laws could not have applied to Miranda.
.
9. The corporate media is at best an unreliable advocate of transparency. One of the media outlets that revealed Snowden’s disclosure, The Washington Post, has carried op-eds attacking its own reports and journalists. As a UK Telegraph columnist noted, conservative British media outlets have been mysteriously silent about the UK government’s attack on The Guardian. In Australia, national security apologists like former spy Cameron Stewart at The Australian have attacked Snowden and tried to dismiss his revelations as trivial. Senior US journalists have suggested Greenwald be arrested for his role in the Snowden revelations. A senior journalist with Time recently called for Julian Assange’s murder by drone.
.

10. The manufactured concept of “wanton publication” is taking hold. The idea was developed by WikiLeaks’ critics over the Manning material, formalised by the US government when it prosecuted Manning, and is now a weapon for the state and corporate media against transparency. Under the “wanton publication” mentality, there is “good”, corporate journalism provided by the mainstream media that works closely with the government apparatus (even if it opposes a government on ideological grounds, like Fox in the US or News Corp here), and there is “bad” journalism, the dissemination of information by non-journalists, or outlets like WikiLeaks, or “activist journalists” like Glenn Greenwald, who endanger society with their irresponsibility and who do not deserve the protections traditionally afford the media.

In the end, at considerable personal cost, Snowden has achieved exactly what he wanted to achieve — to initiate a debate by exposing the US government’s vast, secret surveillance of Americans and the rest of the world. Most importantly, Snowden has revealed a vast catalogue of crimes by the NSA and the US government that would never have come to light except for his bravery.

In this context, special mention should be made of the disgraceful attack by (Australian) Attorney-General Mark Dreyfus on both Snowden and Chelsea Manning recently, when, channelling the “wanton publication” mentality, he claimed neither should be deemed a whistleblower. This is Dreyfus at a conference a fortnight ago:

“Where an activity has been authorised under law and overseen by appropriate government bodies, and where no wrongdoing has been identified, the disclosure of information is not ‘whistleblowing’. This is a critical point that is often overlooked in much of the media coverage of the release of classified information by Mr Snowden in particular.”

Perhaps “wrongdoing” doesn’t mean what Dreyfus thinks it means. Several thousand breaches of US law, a finding by even a rubber-stamp court of unconstitutionality, a cover-up of breaches, perjury — if that’s not wrongdoing for Dreyfus, then he is manifestly unfit for the office of Attorney-General.

The article is courtesy of Bernard Keane, political correspondent in Canberra for Crikey, where this article first ran on 27 August 2013.