Snowden and Snooping

Remarks at the MIT Center for International Studies

Ambassador Chas W. Freeman, Jr. (USFS Ret.)

Cambridge, Massachusetts – 12 December 2013

We live in what the National Security Agency [NSA] has called “the golden age of SIGINT [signals intelligence].” We might have guessed this. We now know it for a fact because of a spectacular act of civil disobedience by Edward Snowden. His is perhaps the most consequential such act for both our domestic liberties and our foreign relations in the more than two century-long history of our republic.

This past spring, Mr. Snowden decided to place his oath to “preserve, protect and defend the Constitution of the United States” and his allegiance to the Bill of Rights above his contractual obligations to the intelligence community and the government for which it snoops. He blew the whistle on NSA’s ruthless drive for digital omniscience. When he did this, he knew that many of his fellow citizens would impugn his patriotism. He also knew he would be prosecuted for violating the growing maze of legislation that criminalizes revelations about the national security practices of America’s post-9/11 warfare state.

Mr. Snowden does not dispute that he is guilty of legally criminal acts. But he places himself in the long line of Americans convinced, as Martin Luther King put it, that “noncooperation with evil is as much a moral obligation as is cooperation with good.” As someone long in service to our country, I am upset by such defiance of authority. As an American, I am not.

Like Henry David Thoreau and many others in protest movements in our country over the past century and a half, Mr. Snowden deliberately broke the law to bring to public attention government behavior he considered at odds with the U.S. Constitution, American values, and the rule of law. One point he wanted to make was that we Americans now live under a government that precludes legal or political challenges to its own increasingly deviant behavior. Our government has criminalized the release of information exposing such behavior or revealing the policies that authorize it. The only way to challenge its policies and activities is to break the law by exposing them.

Mr. Snowden justifies his flight abroad on the grounds that, had he remained within the jurisdiction of the United States, he could not have had a fair trial, would very likely have been subjected to cruel and unusual punishment, and would have been isolated and silenced to avert informed debate by Americans about the public policy issues his revelations raise. Not so very long ago – let’s say in the time of Daniel Ellsberg – it would have been fairly easy to show that such fears were groundless. Unfortunately, that is no longer the case. Mr. Snowden has been driven to ground in Russia, a country with an incomparably worse record of lawlessness than ours that he never intended to visit, let alone reside in. If he tries to go elsewhere, he will be hunted down and made to disappear.

Post 9/11, practices not seen in our political culture since the abolition of the Star Chamber by the Habeas Corpus Act of 1640 have again become commonplace. Such practices include – but are not limited to – detention without charge or trial, various forms of physical and psychological abuse, and the extrajudicial murder of American citizens on the orders of the president. All of these are facilitated by electronic eavesdropping, as is state terrorism by drone and death squad. Like the inhabitants of countries we condemn for gross violations of human rights, Americans are now subject to warrantless surveillance of our electronic interactions with each other, the arbitrary seizure at the border of our computers and private correspondence, the use of torture and degrading practices in interrogation and pretrial detention, and prosecution upon evidence we cannot see or challenge because it is “classified.”

In the thirteen years since the 21st century began, many of the rights that once defined our republic have been progressively revoked, in particular those enumerated in the 4th, 5th, and 6th amendments to our Constitution. The freedoms that have been curtailed include the rights to:

• immunity from searches and seizures except “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

• not “be deprived of life, liberty, or property, without due process of law.”

• “a speedy and public trial . . . and to be informed of the nature and cause of the accusation.”

Mr. Snowden has brought home to us that, while we Americans do not yet live in a police state or tyranny, we are well along in building the infrastructure on which either could be instantly erected if our leaders decided to do so. No longer protected by the law, our freedoms now depend on the self-restraint of men and women in authority, many of them in uniform. History protests that if one builds a turnkey totalitarian state, those who hold the keys will eventually turn them.

One does not have to approve of Mr. Snowden’s conduct to recognize the service he has done us by exposing the cancerous growth of our government’s surveillance apparatus. The issues before us are neither his character nor the punishment he should receive. The issues we must address are: (1) how much domestic surveillance can be reconciled with the Constitution and the immunities from government intrusion it once guaranteed to individuals and groups, and (2) where, against which foreigners, and to what extent such electronic snooping should be carried out abroad.

The United States was founded on the principle that “that government is best that governs least.” This concept of limited government is wholly incompatible with the notion of an omniscient executive, still less one that is protected by secrecy from both accountability and the checks and balances imposed by independent judicial review, congressional and public oversight, or even common sense. Yet, we can be in no doubt that our fear of foreign and domestic terrorism has caused us to nurture just such a governmental leviathan.

Judicial checks on surveillance activities by an essentially coopted FISA [Foreign Intelligence Surveillance] Court have been both minimal and ineffective. NSA has not always heeded its rulings anyway. There is no evidence of congressional push-back against the steady expansion of snooping on Americans or foreigners or of presidential efforts to restrain either. The very members of Congress responsible for intelligence community oversight professed to be shocked when they learned about the scope of NSA’s eavesdropping on both Americans and foreign leaders. The president claimed ignorance. Whether these political postures reflect dishonesty or incompetence is unclear.

What is not in doubt is that there has been a massive, ongoing failure by our government to conduct its intelligence activities in a manner supportive of our liberties and our alliances with foreign nations. Both oversight and management of intelligence collection programs need urgent corrective surgery. And it is time for a major pruning of the jungle of surveillance programs that national hysteria about terrorism, essentially limitless funding, and burgeoning technical capabilities have combined to produce.

The very purpose of the state is the management of the nation’s defense. To do this, the authorities must have situational awareness and early warning of possible threats from both state and non-state actors. SIGINT, like other forms of espionage and diplomatic reporting and analysis, is part of the answer to this need. But SIGINT was invented to support actions on the battlefield. For the most part, it remains a military project. We do not – we should not – ask our military to exercise restraint when attacking perceived threats. Armies are not expected to play by the rules but to win. They are inevitably inclined to overkill. It has been said that “an elephant is a mouse built to mil-specs.” True to the military culture of excess from which it sprang, NSA is an intrusive collection apparatus that has evolved to “collect it all.” “All” is much too much.

Given their invisibility, secret programs have a particular propensity to expand beyond their original purposes. The view that activities that are not legal are not necessarily illegal, and that any and all technology should be exploited à l’outrance is what underlies the decision to “collect it all.” It is hardly surprising that this has become NSA’s self-proclaimed mission. Why does a chicken cross the road? Why does a dog lick its balls? Because it can. Why does NSA snoop on everyone everywhere online? Because it has the money and means to do so, not because what it collects meets any valid, externally determined national requirement, standard of efficiency, or foreign policy judgment. The fact that we are able to do things that violate the trust and privacy of others does not make it wise or appropriate to do them.

What we have seen since 9/11 is a combination of adaptation to new international circumstances and a growing ration of purposeless program growth, only tangentially related to threats to our national security. In the case of SIGINT, this is a dangerous misdirection of resources. Conventional threats of all kinds are now minimal but cyber threats are escalating. SIGINT capabilities should be focused on potential enemies and on defending citizens and their government against foreign cyber intrusions, theft, and sabotage, not on collecting information about citizens in the United States and other democracies. It is neither necessary nor proper to spy on democratic foreign allies who do not spy on us.

It is not necessary because these allies are open societies that debate their basic policies in public. We are represented in their capitals by diplomatic missions whose purpose, in part, is to keep our government informed about their motivations, reasoning, plans, and operations. If we need to understand these societies and their capabilities and intentions better, we should strengthen our diplomacy, not our covert military trespasses against them.

Mr. Snowden documented misbehavior that was a Pandora’s box of embarrassments waiting to burst open. It should have been seen as such by those who authorized and carried it out. Their overreach has now done great damage to our moral standing internationally. This is a painful reminder that eavesdropping on allies is no more compatible with mutually respectful and cooperative relationships than behaving like a peeping Tom is with friendship.

By alienating our foreign admirers and supporters, we have weakened our country’s political influence abroad. By hacking into our great information technology companies to create Trojan horses, our government has spread distrust of U.S. products and services and damaged the competitiveness of our economy. By belying the decent respect for the opinions of mankind with which we inaugurated our nation, Washington has catalyzed a global loss of confidence in the righteousness of American leadership. By showing suspicious contempt for allies and ready hostility toward other nations, Americans have undermined the prospects for both future international cooperation by allies with our armed forces and peaceful coexistence with our competitors.

In the Cold War, we Americans and our allies justly saw ourselves as threatened with nuclear annihilation or ideological subjugation. Someone in Moscow could turn a key and most of us would soon be dead. The threats before us are in no way comparable. Yet, in the face of a greatly lessened danger, our leaders have chosen – mostly in secret – to defend our freedoms and preserve our international standing in ways that diminish both. Our own government has become a vastly more potent threat to the traditions and civil liberties of our republic and to the rule of law than al-Qaeda could ever hope to be.

Our ability to intercept, decipher, and understand the communications of those who wish us ill is an invaluable competency. But it is a capability that coexists uneasily with a free society and with cooperation with other free societies. Those who exercise it are – for the most part – patriots attempting to defend our nation, not infringe its liberties. But our misapplication of their ability to eavesdrop to their fellow citizens as well as democratic allies who do not spy on us is a perversion of its purpose that must be curtailed. The collection of intelligence is essential to our national security. It is not and cannot be an end in itself. And in a democracy, it cannot be safely conducted without judgment based on a sense of propriety and self-restraint born of deference to the rule of law.

Freedom requires checks and balances, not paternalistic monitoring by the government. It is now incontrovertible that we have failed to apply effective checks and balances to core national security and intelligence functions. No one in Washington or anywhere else should be in a position to turn a key and deprive us or our posterity of the blessings of liberty. It is past time to rethink and radically downsize both the warfare state and the undisciplined surveillance apparatus it has given birth to.