What, Me Worry? Obama’s White Paper

I

I read the Administration White Paper over the weekend.  The subtitle is “Bulk Collection of Telephony Metadata Under Section 215 of the USA Patriot Act.”  It’s dated August 9, 2013.

The accompanying document is a generic description of the NSA’s “foundational authority” in Executive Order 12333 of 1981, and of its procedures, most of which are functions of its relation to FISA and its Court.  It’s notable for two reasons.  First, it begins by acknowledging that “recent unauthorized disclosures” prompted publication.  Second, in explaining EO 12333, it discloses that the “principal application of [NSA’s] authority is the collection of communications by foreign persons that occur wholly outside the United States.”  (p. 2, my italics)

So the NSA merrily admits that Edward Snowden forced its hand, and that the surveillance sanctioned by the White Paper far exceeds the “foundational authority” of EO 12333 (and subsequent amendments).

II

The White Paper, on the other hand, is a sober, earnest piece of propaganda.  It’s 23 pages of densely-packed legal prose, replete with the kind of citations you expect in a long brief or a court decision.  So you have to wonder what the intended audience is.  One clue is to be found in the way the document is organized.

There are three distinct sections apart from the opening Executive Summary.  Part I, pp. 2-5, could be called “How the Program Works.”  Here we learn about “identifiers,” “seeds,” and “hops,” words that in regular police work would mean something like “leads” and “known associates.” (pp. 3-4)  We also learn that the White House is not quite in synch with the NSA on the scope of EO 12333, because it declares that the “most analytically significant terrorist-related communications are those with one end in the United States or those that are purely domestic.” (p. 3, my italics)

Part II, pp. 5-19, could be called “Why the Program is Legal.”  The point here is that the collection and analysis of telephone metadata by the NSA at the request of the FBI and with the approval of FISA courts complies with Section 215 of the Patriot Act.  Notice that at 14 pages, this is by far the longest part of the document, composing about 60% of the total—by contrast, Part III, which could be called “Why the Program is Constitutional,” is four pages, only about 17% of the total.

How come?  This is a document intended for Congress, and more particularly, for congressional staffers.  Its purpose is to head off any grumbling and rebelliousness on Capitol Hill, not to reassure the larger public.  At another remove, it’s intended for the legal talking heads like Jeffrey Toobin, who can cite these egregious arguments on CNN, MSNBC, or at The New Yorker, where Snowden still appears as a narcissist bent on fifteen minutes of fame.

Part II has two chapters, one on “Statutory Requirements,” the other on “Congressional Reauthorization.”  Both are there to remind Senators and Representatives that they not only passed the original Patriot Act, they have reaffirmed it on several occasions.  They knew all along what the FBI and the NSA were doing, notwithstanding their claims of ignorance or innocence.

Now the “Statutory Requirements” chapter uses the very specific language of Section 215 regarding “authorized investigations,” “tangible things” discovered in searches (yes, electronic storage qualifies as such), the “relevance” of any suspect, lead, or information in authorizing investigations, and “prospective orders” of surveillance based on reasonable suspicion and/or probable cause.  The rhetorical move here is always to compare what the NSA is doing to routine police work, where these legal categories and imperatives determine the contours of any investigation.

The analogy cannot hold, of course, and the White Paper authors, whoever they may be, acknowledge this awkward fact in two interesting ways.  On the one hand, they keep canceling their own comparison with invocations of the state’s interest in national security—“even if” you could object to our Law & Order analogy, they keep saying, we’d have to tell you about terrorism and explain why the DA’s rules are moot—and on the other hand they exhaust themselves in an increasingly circular argument about relevance.

The “relevance” argument occupies pp. 8-15 of the White Paper, about a third of the whole.  Why?  Because the category has not hitherto applied and cannot apply to the bulk collection of data, meta or no.  Until now it has borne the moral and legal weight of specific circumstance, not crimes still uncommitted by conspiracies that haven’t yet convened.  And because “relevance” is the central criterion by which a judge outside of FISC decides whether to authorize an investigation using modern methods of surveillance (short of bulk collection).  If legal authorization of an investigation is predicated on relevance—particularity, specificity, actual or impending crime—but the bulk collection of (meta)data denies the very possibility of relevance because it subjects virtually everyone of us to random search, the argument becomes hopeless circular.

“What specific investigation?”  Well, we can’t say.  “What is relevant?”  We don’t know,  but we can say this, your honor:  Everything is relevant because everything is subject to investigation, and vice versa.  The state’s interest in national security permits and requires it.

That is my translation, of course.  But it accurately conveys the terrifying scope of the claims made and the language used here, in Part II.

III

Part III on the constitutionality of The Program, pp. 19-23, validates Part II by its brevity.

There are three claims here.  First, a Section 215 order for the bulk collection of telephone metadata “is not a ‘search’ as to any individual” because the Supreme Court expressly held in Smith v. Maryland (1979) that telephone users have no reasonable expectation of privacy because they’ve already relinquished information to a third party (the telephone company: did you know that?).  Second, the 4th Amendment bestows only a “personal right” against unlawful searches—a right that “must be invoked by an individual,” and thus “may not be vicariously asserted” in the name of any others (the key cite is Minnesota v. Carter [1998])  Third, “lawful investigative activities conducted in good faith” do not violate the 1st Amendment.

So if you thought that the NSA surveillance program was an intrusion on your constitutional right to privacy and protection from unlawful searches, Not To Worry!  It’s not such an intrusion, you see, because the Government—the word is capitalized throughout—doesn’t know who you are because it doesn’t sample the verbal content of your telephone conversations, and you don’t know what the Government is doing because it can’t tell you, for your own good.

Part III, in other words, trashes the Constitution by first invoking it and then announcing that “even if”—a phrase repeated with obvious satisfaction—we were to assume that the NSA has been conducting searches that violate our privacy, it’s too fucking bad about us, because the Supreme Court has also held that an individual’s privacy must be balanced against the Government’s legitimate interest in protecting us against terrorist attack, and therefore it—the Government—can do exactly what it wants because the balancing act is now conducted in complete secrecy before the ad hoc FISA courts.

I feel better.

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