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Hullabaloo


Wednesday, March 12, 2014

 
The oversight oversight

by digby

This Q and A between Michael Winship and Edward Snowden's attorney Ben Wizner is interesting for a lot of reasons. But this particular exchange is particularly so for its comprehensive overview of the issue from their perspective:

Winship: How would you characterize what [Snowden] has revealed?

Wizner: Well, maybe the best way to answer that question is to remember what President Obama said in the first week after the revelations began to appear on front pages. He said Americans shouldn’t be too worried about these disclosures because all three branches of government had blessed the programs and activities that were being disclosed. That was a true statement. That was also exactly the problem. And it’s worth looking at what those same three branches of government have done since Edward Snowden’s disclosures, since the public was brought into this conversation.

So let’s look at the courts. Now, it’s true that a court called the Foreign Intelligence Surveillance Court had approved, in secret, some of these programs. It’s a court that hears only from the government, does not have the benefit of adversarial briefing, didn’t get to hear what our objections would have been. It’s also a court that was set up to give warrants, not to write opinions on whether surveillance programs in general were lawful. And when we tried to bring challenges to these programs in open federal courts, we got as far as the Supreme Court, but every court turned us away without even considering the legality of the programs. The government said, “These plaintiffs have no right to be in court. They can’t show that they were subjected to these surveillance programs, and therefore they don’t have standing. And they’re not allowed to use the discovery process to learn that, because that would be a state secret.” The result being that no one has the right to go into federal court to challenge the legality of these programs.

Edward Snowden was watching this. In our very first conversation, one of his first questions to me was, “Have these documents that have been published so far given you standing to go back in court?” To him, the idea that a court would not answer the question, “Is this program legal? Is it constitutional?” but instead would contort itself in order to not answer that question seemed like a failure of oversight, and he was right.

What’s happened since his disclosures? We have now taken some of these documents, gone back into federal courts, where our standing is really much harder to question. Two federal judges have now considered, for example, the constitutionality of the government’s collection of all telephone metadata. They’ve come so far to different conclusions on the legal question, but both said that the plaintiffs have standing to be in court. So one thing that he’s done is he’s reinvigorated judicial oversight.

Now, what about Congress? To me, the signal moment in Congress is [Senator] Ron Wyden asking [Director of National Intelligence] James Clapper, “Is there any kind of information that you collect on millions or hundreds of millions of Americans?” And Clapper says, “No, sir, not wittingly.” We like to call this Clapper lying to Congress, and it’s certainly that. But it would be much more accurate to say that Clapper was lying to the American people, because Senator Wyden knew that the answer was false. He didn’t, he felt like he couldn’t correct the answer. No one else on the committee corrected the answer. Clapper didn’t correct the answer, no one on his staff, no one on the Administration. So what we had was a lie being told to Congress and no one in any branch coming forward to say that a lie had been committed. And Snowden was watching that, too. And what’s happened in Congress since the public disclosures? The issue has come out of the intelligence communities and into the full Congress. There is historic bipartisan legislation that would end bulk collection of American’s data, that would create an adversarial process in the Foreign Intelligence Surveillance Court. This is the kind of legislation that would’ve been absolutely unthinkable before Snowden.

The direction has been one-way since the late 1970s. The Deep State has more authority, not less. The opposite is going to happen now. Now, whether it’s something that seems more cosmetic or something that really is historic, well, that’s really up to the people to decide. We will see. But there’s been an earthquake in the congressional oversight of these programs, and that’s because of Snowden.

And even the executive branch, which said, “Nothing to see here” — you know, the president appointed his own review board, that included former very high ranking intelligence community officials and other close friends of his. I think it’s fair to say that the civil society organizations expected a whitewash. But that’s not what we got. The conclusions were — more politely stated — that the NSA had essentially gotten out of control, that it allowed its technological capabilities to drive its practices, rather than having its practices constrained by laws and values, and even wisdom. And there were dozens and dozens of recommendations that went not only to giving Americans greater protections, but also people abroad. And you heard the president in January, in his big speech about the NSA, say — first time for any president, I think — that we need to be concerned about the privacy rights of people outside the US who are not protected by the Constitution.

So all three branches of government are now doing the oversight that the Constitution wants them to do, that they were not doing before Edward Snowden. To me, that is his most significant contribution.

For the moment. It's pretty to think so anyway. But the Deep State is so entrenched that I think all anyone can do at this point is try to keep it from expanding and put a little sunshine scare into them once in a while. The problem, as I've written too many times before, is the United States' status as the world's only superpower and military hegemon. Americans seem to accept this -- embrace it actually --- as a given and have little interest in looking at how we might reorganize ourselves in a new world. Until that happens, this "need" for Deep State capabilities will continue and the government will find new ones to invent. At best, we can knock it back from time to time. (See: the tragic failure of the 1970s reforms.)

I hate to sound so cynical, but when I see Snowden and others put faith in the American people to rein in these programs once they find out about them I cannot help it. Most people could not care less about this stuff and a good portion of those who do are all for it. So, I'm not convinced that relying on public opinion is the way to go.
But at some point this country will be faced with the same choices that all dominant countries are faced with: can we afford to continue on this path? (And maybe that day is closer than we think.) But until that happens, when citizens are faced with a real choice between being a global military empire and living a decent life at home, I just don't see a fundamental change on the horizon.

Having said that, the value of these revelations (aside from some necessary new rollbacks hopefully) is that a new generation of civil libertarians will be thinking about these things and a new group of lawyers, judges, lawmakers and teachers will be out there monitoring the government. As long as the principles remain intact and alive in the national consciousness (and barring an epic crisis)they may be able to keep things from hurtling out of control.

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