Empire in Espionage _ Frontline

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COVER STORY

Published: June 26, 2013 12:30 IST | Updated: June 27, 2013 11:54 ISTCOVER STORY

Empire in espionage

A systems administrator blows the cover of a U.S. spying programme that routinely mines data fromInternet servers and telecommunications systems used by billions of people around the planet, includingall Americans. By VIJAY PRASHAD

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shallnot be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularlydescribing the place to be searched, and the persons or things to be seized.

Fourth Amendment to the US Constitution, 1791.

CODENAMED Verax (Truth-teller), a young contract employee with the National Security Agency (NSA) sent encrypted e-mails totwo well-regarded journalistsBarton Gellman ofThe Washington Postand Glenn Greenwald ofThe Guardian. Verax worked forBooz Allen Hamilton, a private consulting firm owned by The Carlyle Group, whose entire raison d'etre was to provide services for theUnited States governments myriad agencies. In less than three months at his job as Booz Allens systems administrator based inHawaii, Verax uncovered documents of a massive U.S. government programme to spy on its own populationPRISM (or the morebureaucratic name, US-984XN). Verax gave documents that would have remained classified until 2038 to Gellman and Greenwald,who published their stories on June 6. Three days later, on his request, The Guardian revealed that Verax was a 29-year-old namedEdward Snowden who had taken refuge in Hong Kong. I dont want to live in a society that does these sorts of things, he said of thePRISM programme. I do not want to live in a world where everything I do and say is recorded.

The response was immediate and widespread. Outrage inside the U.S. impacted President Barack Obamas popularity ratings, and itspurred his critics to charge him with betraying his liberal lineage. That this was a programme with origins in the George W. Bushadministration, with links to other programmes from the 1950s, was of little consequence. Obama had come to office promising toundo large swathes of the Bush War on Terror approachincluding warrantless wiretaps on U.S. citizens, the main issue that incensedthe liberty-minded U.S. population.

Obama himself deflected the matter of Snowdens leak, saying that it was important to distinguish between the deep concerns wehave as a government around theft of intellectual property or hacking into systems that might disrupt those systemswhether it is ourfinancial systems, our critical infrastructure, and so forth versus some of the issues that have been raised around NSA programmes.

The issue for Obama was Snowdens leak itself (and the work of hackers in general), not what the leak showed. No wonder then thatthe Obama administration said that Snowdens reckless disclosures had created significant misimpressions in the media about theprogramme (said Director of National Intelligence James Clapper), and that Snowden should be prosecuted for his action. Snowden,in a safe house in Hong Kong, has sought protection from the authorities of the Special Administrative Region of China.

Snowdens documents showed how the U.S. government had strong-armed Verizon, the U.S. broadband and telecommunicationscompany, into providing data on every single call that went through its system. Furthermore, his information showed that the NSAroutinely captured material from the Internet that went through servers of nine leading U.S. companies (Apple, AOL, Facebook,Google, Microsoft, PalTalk, Skype, Yahoo and YouTube)most of the servers used by billions of people around the planet. Thesecompanies deny they gave authorisation for such data mining.

On June 6, James Clapper released a statement defending the programme and suggesting that the leaks were being taken out ofcontext. However, what Clapper admitted to is no less chilling: The programme does not allow the government to listen in on

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anyones phone calls. The information acquired does not include the content of any communications or the identity of any subscriber.The only type of information acquired under the courts order is telephony metadata, such as telephone numbers dialled and length ofcalls.

In other words, the government is able to find out who is talking to whom without the private parties having given any cause for thisinformation to be collected and analysed. To provide context, Clapper authorised the declassification of more documents, althoughthese do not seem to provide the kind of justification that he sought from them. The robust legal regime that Clapper saidconstrained the programme gives cold comfort to watchdog agencies and groups committed to Internet freedom.

Clappers credibility is on the line. On March 12, a congressional committee asked him if the NSA collected any type of data at all onmillions or hundreds of millions of Americans. He answered, No, sir. There are cases where they could inadvertently, perhaps,collect, but not willingly. Federal legislation, he noted, provided strictures against tracking American citizens in the United States for

foreign intelligence purposesand thats what those agencies [the NSA and the Central Intelligence Agency, or CIA] are set up to do.Clappers denials are part of the long history of the NSAs shadowy existence. But they are now shown to have been false. The scandalhere is partly the governments spying on its citizenry and partly the Obama administrations denials of these programmes, which ithad come to office to end.

No such agency

The NSA was formed in 1952, with the express purpose of intercepting and analysing electronic communications in foreign countries.Initially it simply recorded radio broadcasts, but it soon morphed into an active spying agency using satellites and various technologiesto listen in on telephone conversations and to intercept telegraph communications. In the era of the Internet, the NSA began to gatheremails and trails left behind by users on the web. Drawing in information (1.7 billion pieces of data a day) is only half its task. The restis analysis, which it does through complicated algorithms that sort through the data using keywordsnot for nothing is the NSAknown as the single largest employer of mathematicians.

Controversy has dogged the NSA since at least the 1970s. Articles in left-wing publications suggested through small-scale leaks that theNSA had drawn up a vast global eavesdropping network called ECHELON. In 1971, a 25-year-old NSA analyst, Perry Fellwock, gave anextended interview to the left-wing magazine Ramparts where he disclosed his work on the NSA spying programme (it was published

using a pseudonym, Winslow Peck, as U.S. Electronic Espionage: A Memoir). The editor for the article, David Horowitz, wrote in hisintroductory note: What we are dealing with is a highly bureaucratised, highly technological intelligence mission whose breadth andtechnological sophistication appear remarkable even in an age of imperial responsibilities and electronic wizardry. So that not asparrow or a government falls without NSAs instantaneous knowledge, over two thousand Agency field stations dot the fivecontinents and the seven seas. The article embarrassed the CIA, which discounted it on the basis of where it appeared (in a counter-cultural magazine). The mainstream media ignored these revelations.

In 1976, Fellwock travelled to London, where he met the investigative journalist Duncan Campbell. Campbell had been looking at thespying programme the British government was running in close alliance with the NSA. Campbell wrote about the GovernmentCommunications Headquarters (GCHQ) in another, at that time marginal magazine, Time Out(The Eavesdroppers, June 1976). Itrevealed the close nexus between the U.S. and its allies in a global electronic spying programme. Campbell elaborated on this 10 yearslater inNew Statesman (Theyve Got it TapedSomebodys Listening, August 1988) despite being harassed by the Britishgovernment (including an arrest in 1977 for meeting with a Signals Intelligence official, John Berry, in his home). Few took Fellwocksrevelations seriously. The pall of the Cold War allowed intelligence agencies and their governments to take advantage of a populationthat was either terrified of the Soviet Union or detached from politics by the post-War boom. Spying on the Soviets and using the NSAto undermine guerilla movements in the Third World did not seem to bother citizens in the West.

What raised the hackles of parts of the U.S. citizenry was another set of revelations: about domestic spying. In 1970, a U.S. Armyinstructor, Christopher Pyle, told the press that his employers were spying on civilians. Pyles statement attracted the attention ofSenator Sam Erwin, who opened a hearing on domestic spying in his Judiciary Subcommittee on Constitutional Rights. In his openingstatement, Erwin laid out the principles for his objection: The dangers to privacy and the constitutional rights of expression and dueprocess of law posed by political surveillance have been widely recognised and I will not dwell up on them here except to emphasisethat political surveillance of any kind which is not directly relevant to a legitimate governmental purpose is repugnant to a freesociety. The Armys former general counsel, Robert Jordan, told Erwins committee that the Army went into the domestic spyingbusiness around the time that the military was called out in Detroit, Michigan, to quell civil disturbances after the assassination ofMartin Luther King, Jr. Knowledge of the enemy was essential, said Jordan, who said that in retrospect, the spying did get out ofhand. Who was the enemy in 1967-68? I dont want to suggest that the military viewed this portion of the American people as theenemy, Jordan explained. However, there was a short-term problem with the military on the one side and some people engaged inlawless acts on the other. Until that period of time ended, until the disorder was brought under control, the people on the other sidewere essentially the enemy. It was this kind of thinking that allowed the Army to treat its own population as foreigners.

Further leaks about the CIA and the Federal Bureau of Investigation opening the mail of U.S. citizens without warrants and ofassassination plots against foreign leaders led to the empanelment of the Church Committee in 1975, whose 14 reports detailed themalfeasance of the U.S. intelligence world. The reports led to the passage of the Foreign Intelligence Surveillance Act (FISA) in 1978which sought to hem in the agencies ability to run wiretaps (including the requirement that the government agencies go to a secretFISA court to get warrants to do what they had been doing all along). In the aftermath of the FISA Act, U.S. investigative journalistJames Bamford creatively and doggedly used the Freedom of Information Act to stitch together the workings of the NSA in his bookThe Puzzle Palace (1982). It showed how the NSA created intercept stations to harvest military signals and civilian telephone callswithout any FISA warrantthe sheer act of drawing in these signals meant that the NSA was promiscuous with its technology, unableto previously attend to any constitutional niceties as the airwaves delivered private communications into its net. Bamfords book wasexplosive, but it did not inflame a debate.

After the attacks of September 11, 2001, the U.S. went into overdrive. Not only did the Bush administration hasten to find targets toattack in retribution (Al Qaeda, certainly, but also Iraq was discussed within hours of the attack), but it also wanted to use every meansavailable to ramp up surveillance against suspected terrorists. In that arsenal, the Bush administration found the NSA. Shortly before9/11, the European Parliament had released a report on ECHELON, which found that the system carried out quasi-total surveillancethrough intercepts by satellites of any telephone, fax, Internet or email message sent by any individual and thus to inspect itscontents. The satellite system operated on a worldwide basis with cooperation extended not only by the U.S. and its closest allies


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(Britain, Canada, Australia and New Zealand), but also by other unnamed countries. The threat to privacy, the European report fromJuly 2001 noted, was not just because of the powerful monitoring system, but also because it operated in a largely legislation-freearea. The tools that Bush was to set in motion and that Obama would inherit were already known in 2001, as were their problems. Itdid not stop the U.S. administration.

In 2012, former NSA analyst Andrew Wiebe made a deposition before the 9th Circuit Court about the reckless abandon in the NSA(this was inJewel vs NSA, filed by the Electronic Freedom Foundation). Everything changed at the NSA after the attacks ofSeptember 11. The prior approach focussed on complying with the Foreign Intelligence Surveillance Act. The post-September 11approach was that NSA could circumvent federal statutes and the Constitution as long as there was some visceral connection tolooking for terrorists. William Binney, another NSA analyst, told the courts in a deposition that after 9/11 the individual libertiespreserved in the U.S. Constitution were no longer a consideration. It was at that time that the NSA began to implement a group ofintelligence agencies now known as the Presidents Surveillance Programme [PSP].

The PSP emerged after 9/11 when the FBI informed the White House that nothing more could be done to collect information underexisting legal guidelines. President Bush broadened the remit for the agencies, which began not only to spy on potential Al Qaedaoperatives (a programme that the government has acknowledged) but also to mine e-mail message and telephone call records fordata. An unclassified report on the programme was shared with congressional leaders in 2009. It is said to contain evidence of activitythat goes outside the law. Democratic leader Nancy Pelosi said at that time: No President should be able to operate outside the law.What was not clear at that time was that the PSP-type programme had morphed far beyond the Bush administration and formed partof the Obama administrations war on terror.

Metadata

Objections to the NSA programmes came from those who were incensed by the loss of personal freedom. What was less consideredwas that the programme, among certain communities (such as Muslims in the U.S.), had become a form of repression itself. Clappersaid that the NSA did not collect information randomly, but through the use of metadata, the parameters of which have not beendisclosed (apart from anodyne statements such as number, time and location of the call). It is likely, however, that national origins(Pakistan, Afghanistan and Yemen) and religious affiliation (Islam) would play some role in setting the factors of the metadata. The

CIA-New York Police Department programme of surveillance over Muslim groups uncovered in 2011 indicates that this kind oftargeted espionage is likely to frame the NSAs approach.

When Obama emerged as the standard-bearer of liberalism, he promised to close down many of the Bush administrations excesses,including the prison in Guatanamo, the black sites around the world, and, of course, the warrantless wiretapping that was part of thePSP programme. In 2007, Obama criticised the Bush administration for its spy programmes, saying that Bush puts forward a falsechoice between the liberties we cherish and the security we provide.

The previous year, Obamas current Vice-President, Joe Biden, said, The NSA collection of phone records violated the privacy of twohundred million Americans. And I think Congress should investigate this data mining. It was based on this robust defence of civilliberties that Obama and Biden were able to galvanise the liberals in 2008. The varnish on those promises has long worn off.

It is a measure of the times that the Republican who introduced the Patriot Act in 2001, Jim Sensenbrenner, released a statementsaying, As the author of the Patriot Act, I am extremely troubled by the FBIs interpretation of this legislation. While I believe thePatriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses. Seizingphone records of millions of innocent people is excessive and un-American. Obama is now saddled not only with the totality of theBush legacy, but with having taken that legacy to much lower depths.

Meanwhile, Snowden sits in Hong Kong, worried that he might be extradited to the U.S. where he will face serious charges, akin towhat is now happening to Bradley Manning in a military courtroom. Attempts to malign Snowden are ongoing, as are threats againsthim from government authorities. When it appeared as if the Hong Kong government would turn over Snowden to the U.S., theForeign Correspondents Club stepped in to offer him protection. Suggestions that the government in Beijing would pressure the HongKong authorities to turn over Snowden to the U.S. government as a way to smooth ties with the U.S. did not occur immediately. HongKong requires little in the way of pressure. Duncan Campbells investigations in the 1970s found that the colonial government in HongKong under its governor Sir Murray MacLehose had created a secret Standing Committee on Pressure Groups, whose work was to spyon any opponent of the colonial regime. As Campbell put it, Hong Kong is a dictatorship, and scarcely a benevolent one. It is notBeijings pressure that will be decisive here; Hong Kong, which has an extradition treaty with the U.S. inherited from its colonial days,offers Snowden no protection.

Snowden says he would like to go to Iceland, where the protections are seen to be strong as is the culture of Internet freedom. Butthere are no direct flights to Iceland from Hong Kong, or to Ecuador (in whose embassy in London the WikiLeaks founder JulianAssange sits). Having handed over his documents, Verax is now trapped. But he is sanguine, putting his fate in the hands of the globalpublic.


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Documents

Empire in Espionage _ Frontline