The Worth of War (26 page)

In June 2013, however, an NSA contractor named Edward Snowden leaked classified documents describing the NSA's theretofore top-secret PRISM surveillance program, which had operated since 2007. Snowden's disclosures were published in the
Guardian
and the
Washington Post
and revealed that through PRISM and several other programs, including BLARNEY, FAIRVIEW, LITHIUM, and the UPSTREAM surveillance of fiber-optic cables, the NSA had been collecting data on its own as well as collaborating with virtually all major telecommunications companies to intercept, examine, and store the electronic communications of millions of Americans. These included email, social network posts, Internet searches, and even local telephone calls. In essence, NSA appeared to have the capacity to monitor all forms of electronic communication. The agency was storing monitored communications and was, indeed, in the process of constructing a huge new storage center in Utah in anticipation of a growing need for much greater storage capability.

While the NSA's goal is said to be monitoring communications between the United States and foreign countries, officials acknowledge that some purely domestic communications have been accidentally accessed but said they did not keep records of the number. Communications among Americans nominally cannot be viewed without a warrant from the FISA Court but, in practice, this rule is frequently violated, said one official who did not wish to be named. The NSA essentially is responsible for policing itself, and, according to one telecommunications executive formerly involved in the NSA program, whatever the nominal legal restrictions, “There's technically and physically nothing preventing a much broader surveillance.”
²⁷
A lawsuit that brought about the declassification in 2013 of a 2011 FISA Court opinion revealed that the NSA had been accessing as many as 56,000 “wholly domestic” communications each year without warrants. In an angry opinion, the then-chief judge of the FISA Court, Judge John D. Bates, wrote, “For the first time, the government has now advised the court that the volume and nature of the information it has been collecting is fundamentally different from what the court had been led to believe.”
²⁸

Most of the data collected by the NSA apparently consisted of the so-called
metadata
; that is, the times, senders, and recipients, but not the actual content of the communication. The NSA asserts that
metadata are not covered by FISA. However, through the successors to the Total Information Awareness program, the NSA and other federal agencies have the ability to use even these metadata in conjunction with other data sources to obtain a very good picture of the friends, activities, and proclivities of any American. Moreover, whether purposefully or accidentally, the NSA has examined the actual contents of many tens of thousands of calls made by Americans within the United States without obtaining authorization from the FISA Court. According to some sources, NSA training manuals explain to data collectors and analysts how to record intercepts without providing “extraneous information” that might suggest that the actions were illegal if they happened ever to be audited.
²⁹
As to the FISA Court, nominally charged with ensuring that the government does not violate laws governing surveillance activities, its chief judge, Reggie B. Walton, said in a written statement to the
Washington Post
that the court had no investigative powers and relied on the government, itself, to report any improper actions by its agents.
³⁰

In an August 2013 speech, President Obama addressed public concerns about the government's surveillance programs. The president pointed to the importance of interdicting terrorist attacks, declared himself to be confident that Americans' rights had not been abused, and said he hoped ways could be found to make the public more “comfortable” with government surveillance activities. Unfortunately, given the history of government surveillance, there is little reason for Americans to feel a sense of comfort. Using methods that seem so primitive today, J. Edgar Hoover's FBI collected information that made and broke political careers, disrupted dissident groups, and interfered with ordinary partisan politics. And, much of what Hoover did was undertaken at the behest of the various presidents whom he served. From Franklin Roosevelt to Richard Nixon, presidents could not resist the chance to collect information to be used against their political foes as well as dissident political forces.

Should we believe that no possible future president would be willing to use today's surveillance capabilities against his or her opponents?
To believe this idea is comparable to believing in Santa Claus and the Easter Bunny. The framers of the Constitution certainly understood this point. James Madison wrote, “If angels were to govern men neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men…experience has taught mankind the necessity of auxiliary precautions.”
³¹

And, as to the terrorist threat against which massive electronic surveillance is nominally directed, one former federal prosecutor commented that, “upon scrutiny,” traditional surveillance of particular phone numbers of email addresses for which warrants could easily have been obtained, were far more important tools than massive data collection programs.
³²
It appears that security, alone, may not require surrendering citizens' privacy and power to Big Brother.

SECRECY

Popular government requires a measure of government transparency as well as citizen privacy. Yet, every government seeks to shield parts of its actions from public view. In many instances, the major instrument used for this purpose is official censorship. In the United States, however, the First Amendment has made it difficult for the government to restrict press coverage except in wartime. Thus, while the courts did not interfere with official censorship during World War I or with the actions of the Office of Censorship during World War II, most government efforts to block press reports of sensitive material have been struck down on constitutional grounds. In the 1971 “Pentagon Papers,” case, for example, the Supreme Court refused to condone the government's efforts to block publication of classified information leaked by a whistle blower.
³³
Of course, in a small number of other cases such as those involving former CIA agents Victor Marchetti and Frank W. Snepp, the judiciary did grant government requests to suppress publication of at least some facts the authors wished to disclose.
³⁴

The US government does not have much power to censor press publication of material that comes into reporters' or publishers' possession. It lacks the equivalent of Britain's Official Secrets Act, which allows prior restraint of publications. However, an enormous quantity of allegedly sensitive information is classified so that anyone who makes it public or reveals it to the media is subject to criminal penalties. In 2013, for example, a US Army private, Chelsea Manning, was found guilty of publicly disclosing classified information and sentenced to a possible thirty-five years in prison. Another individual, Edward Snowden, was accused in 2013 of leaking information on illegal NSA surveillance practices to the
Washington Post
. While the government could not prevent the
Post
from publishing the material, it did indicate that Snowden would be prosecuted for leaking classified material. In order to avoid such prosecution and the likelihood of a stiff prison term, Snowden fled the country and sought asylum in Russia, a state that for its own reasons was willing to ignore American demands for his return. Thus, while the American press in not subject to much in the way of official censorship, those who provide it with information the US government deems confidential can be severely punished. This is little more than censorship by another name.

Governmental secrecy in the United States takes two main forms. The first is the official classification system, established by presidential order, and nominally designed to protect national security information. The classification system creates three “classes” of sensitive information. These are
confidential
,
secret
, and
top secret
, each governed by its own set of rules. Once information is classified, it can be viewed only by those with the requisite level of security clearance. Access to information classified as top secret—defined as potentially causing “grave damage” to the United States—is limited to a small number of individuals, and even then on a need-to-know basis. That is, even those with top secret security clearances are only allowed access to top secret information relevant to their own work. Information is classified as secret when its disclosure might threaten “serious damage” to the United States and information is classified as confidential when its disclosure might threaten “damage” to the United States.

A number of federal defense and security agencies are authorized, by presidential order, to classify information. Within those agencies, several thousand officials are designated “original classifiers” with the authority to classify material. The number of individuals possessing such authority is linked to the level of classification. Reportedly, only several hundred officials, including the president and vice president, can order a
top secret
classification. Perhaps as many as 2,500 are authorized to order lower levels of classification.
³⁵
Information is usually classified for a specified period of time, usually ten, twenty-five, or fifty years depending upon its sensitivity, and then subject to declassification or a downgrade of its classification.

In addition to the formal secrecy system, information that one or another agency does not wish to release is shielded by the general opacity of government bureaucracies that have many procedures designed to impede public scrutiny of their actions. In recent years, indeed, several federal agencies have, without any statutory or presidential authorization, adopted their own classification schemes, labeling information “sensitive but unclassified,” or “sensitive security information,” or “critical program information,” and restricting access to it.

Since George Washington, presidents have claimed the power to block Congress and the public from securing access to government information. In 1792, Washington hesitated before providing Congress with access to documents relating to a disastrous military expedition, commanded by General Arthur St. Clair, against a Native American tribe. According to notes of a cabinet meeting kept by Secretary of State Thomas Jefferson, Washington said he, “could readily conceive there might be papers of so secret a nature, as that they ought not to be given up.” The cabinet agreed that, “the Executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public.”
³⁶
Washington eventually decided to release the documents pertaining to the St. Clair expedition, but two years later refused a congressional request to provide papers relating to the treaty with England negotiated by John Jay.

The Classification System

The beginnings of formal document classification in the United States can be traced to an 1857 law concerning the management of American diplomatic and consular offices in which the president is authorized to “prescribe such regulations, and make and issue such orders and instructions…in relation to…the communication of information…as he may think conducive to the public interest.”
³⁷
Not until after the Civil War did the US Army issue formal regulations governing the protection of information. Regulations issued in 1869 and revised in subsequent years prohibited anyone from photographing or sketching military fortifications. In 1898, Congress enacted legislation attaching penalties to violations of these regulations.
³⁸

Since 1898, Congress's role in restricting access to information has been limited. The 1917 Espionage Act made it a crime to obtain and disclose defense information to a foreign power with the intent of injuring the United States. The 1946 Atomic Energy Act declared that information pertaining to the design and manufacture of atomic weapons was restricted. The 1947 National Security Act made the director of central intelligence responsible for protecting intelligence sources and methods from unauthorized disclosure. And, the 1999 Kyl–Lott Amendment established procedures slowing the declassification of classified material that might contain information about nuclear weapons. With the exception of these and a small number of other pieces of legislation, restrictions on information have been executive in origin and have often been aimed at preventing Congress itself from obtaining access to information.

In 1912, the US War Department issued a series of rules for the protection of defense information, declaring the militarily sensitive information was to be labeled “confidential,” assigned serial numbers, and kept under lock and key. This system was expanded during the First World War into a tripartite classification system not too different from the one used today. The highest category,
secret
, referred to information deemed likely to threaten the nation's defense.
Confidential
was the label assigned to information that, while not endangering the nation's
security, might be prejudicial to its interests. Information deemed to be such that its disclosure might somehow undermine “administrative privacy” was declared
restricted
and access denied to the general public. Because the military does not operate in a vacuum and has numerous dealings with civilian agencies, this classification system also came to affect the operations of numerous government agencies that had dealings with the War or Navy departments.
³⁹

In 1940, the White House took control of the existing document classification system. President Roosevelt issued Executive Order 8381, declaring that the existing tripartite classification system would apply to all military and naval documents. Roosevelt cited national defense as the justification for protecting information, and, for the most part, only the Army and Navy departments were given authority to classify information. Subsequent presidents have issued their own executive orders refining and expanding the classification system. The most sweeping change was instituted by President Truman, who, in place of the term “national defense,” declared that the broader concept of “national security” was the underlying justification for the classification system. Consistent with this change in terminology, Truman's order expanded the number of federal agencies authorized to classify documents. Not only defense agencies but also several dozen agencies with some security responsibilities would be permitted to classify information. Truman also added a fourth classification category,
top secret
for information deemed especially sensitive.