It appears that, as opposition grows to the surveillance programs, the Administration is increasing the claimed successes under the programs. The wonderful thing about secret massive databanks is that its use is . . . well . . . secret. After the surveillance programs involving all calls from citizens and hundreds of millions of emails were disclosed, congressional allies came forward to claim that “a possible plot” was foiled by the program. Of course, they could not tell anyone about the plot even after other members of the Senate said that they doubted that claim. National Security Agency director Army Gen. Keith Alexander, however, has decided that just one potential plot is not enough. So he testified this week that “dozens” of potential plots have been foiled in an effort to get citizens to redefine privacy in a more surveillance friendly image.
For many civil libertarians, the Administration and Congress will have to forgive the feeling that this is like asking “who are you going to believe a court or the people who were secretly spying on you?” What makes this particularly fascinating is the small problem of the past false testimony on surveillance given by intelligence officials in congressional hearings — testimony known to be false by the Senators in attendance. This is also the same Administration that only in February blocked a major effort to seek judicial review dismissed in the Supreme Court by a 5-4 vote because any confirmation of such programs would endanger American lives.
Yet, now we are told to simply accept on faith that dozens of “potential” plots were stopped. Putting aside the past exaggeration of intelligence claims, this testimony (and the hearing itself) seemed designed to (as with the prior torture program under Bush) to get the public to forget about privacy and constitutional protections by keeping fear alive.
Much like Putin’s defense of the American surveillance programs, Alexander insisted that this is the new normal. Alexander repeated the position of the White House that “We do not see a tradeoff between security and liberty. We are trying to protect Americans.” That is a fascinating — and chilling — statement. It suggests that there is no balancing needed if you “are trying to protect Americans.” Of course, everything the government does in the area (as with criminal non-terrorism cases) is to protect the public.
Moreover, despite Obama’s suggestion that there is a balancing, there is no evidence of it. All of the steps like reading content of emails referenced by Obama is not some concession made by his Administration: it is a power that he does not possess. Those concessions are in fact prohibitions. Obama went all the way up to (in my view, over) the line of maximum power. It is like saying to a police officer that you balanced you desire to get to your location by speeding but not moving into approaching traffic. That really is no more a concession for a driver than it is to say that you are not reading mail without a warrant for a president.
Now back to Alexander. In a repeat of what occurred after the disclosure of the torture program, the Democratic senators structured the hearing to avoid the broad questions of legality and privacy. Appropriations Committee Chairwoman Barbara Mikulski reminded everyone that they would not address such questions being discussed “in the news.” Instead, they wanted the focus to be on the benefits of the massive surveillance system and of course attacking Snowden.
Yet, no one asked Alexander what constitutes a “potential” plot. We have not seen dozens of prosecutions. What happened to them? Likewise, no one asked for details on the plots. After all, he just said the programs uncovered the plots and presumably the plotters know that they were found out. So why not lay the facts bare for the American public?
Then there is the assumed proposition that if “a plot” or “dozens of plots” were uncovered, it would excuse a massive surveillance of the population and the creation of a fishbowl society.
By the way, various lawyers and intelligence experts with direct knowledge of two intercepted terrorist plots have said that they do not believe the program played a significant role. The two cases cited by allies of the White House involve the arrests and convictions of would-be New York subway bomber Najibullah Zazi in 2009 and David Headley who received a 35-year prison sentence for his role in the 2008 Mumbai attacks. However, court documents in the US and UK show an array of more important sources, including informants and conventional surveillance.
However, I am still struck by the spectacle of these hearings after the disclosure of false testimony by people like James R. Clapper Jr., the director of national intelligence. Clapper has recently said that his testimony was “the least untrue” statement that he could make. Yet, of course that would still make it an untrue statement — which most people call a lie and lawyers call perjury. Indeed, when Roger Clemens was prosecuted for untrue statements before Congress, he was not told of the option to tell the least untrue statement on steroid use.
Yet, it is important to note that Senators have come forward to admit that they knew of the massive surveillance program. So, when Clapper was given untrue testimony, these Senators sat quietly and allowed the public to be lied to. They are now holding hearings that assure the public that it can trust them that these programs have foiled “dozens” of plots. It is asking rather a lot from any citizen, but it may be the last measure of devotion demanded by this President.