Whistleblowers: Congress Has Entrenched the Surveillance State
Two former whistleblowers — Thomas Drake of the NSA and Colleen Rowley of the FBI — say the new bi-partisan FISA spying law opens the way to widespread privacy violations and government abuses
AARON MATÉ: It’s The Real News, I’m Aaron Maté. The US Senate is headed towards final passage of a bill that would extend the government’s warrantless surveillance of American citizens. Last night, the Senate voted to move to a final vote without even holding a debate. The deciding vote was cast by Senator Claire McCaskill, a Democrat, underscoring the measure’s bipartisan support. House Democrats helped Republicans pass their version of the bill last week, rejecting curbs on warrantless spying. The bipartisan unity was welcomed by Senate Majority Leader Mitch McConnell.
MITCH MCCONNELL: This capability is absolutely vital to the success of defense and intelligence operations. To be absolutely clear, Section 702 does not allow the targeting of American citizens nor does it permit the targeting of anyone of any nationality who is known to be located here in the US. Five years ago, Congress reauthorized the title with overwhelming bipartisan support. Today, it’s time to do so one more time.
AARON MATÉ: Joining me are two guests. Thomas Drake is a National Security Agency whistleblower who was charged with violating the Espionage Act after he exposed fraud and mismanagement at the Agency. He was eventually cleared. And Coleen Rowley is a former FBI special agent who also turned whistleblower. Thomas, I’ll start with you. If you could respond to what we just heard from Senator McConnell there, that Section 702 does not allow the targeting of American citizens?
THOMAS DRAKE: Yeah. That’s the convenient way to describe the law. They say the law allows them to target non-US persons reasonably believed to be abroad in order to collect foreign intelligence information. That’s technically true but it encourages the false belief that only non-citizens fall under the Section 702 collection.
AARON MATÉ: Can you explain that? How then could a US citizen be swept up?
THOMAS DRAKE: Well, it’s what they call one-end communication. If that “non-US,” and it’s not fully defined by the way, what it means to be foreign, I just want to make sure that’s clear. Then any American/US person is communicating any manner with what they have defined as a targeted non-US person/foreign then is ripe for collection. That can sweep up a tremendous amount, and has, a tremendous amount of communications with respect to the US person.
AARON MATÉ: You mentioned there was a House debate last week over an amendment that would have imposed some curbs on 702, some curbs on warrantless spying but that was rejected with the support of key Democrats. What is the impact of rejecting those limits?
THOMAS DRAKE: Well, they’re effectively minimizing the Fourth Amendment. If you saw my face, I’m trying not to be too cynical. It minimized, because they’ve already gone there, right? They’re already been doing this. I mean, I was there when the original Stellar Wind domestic surveillance regime was put into place. These mechanisms, in terms of legalizing what was patently unlawful and unconstitutional, started rolling out through Congress in 2007, 2008.
This is the third iteration of the FISA Amendments Act. All they want to do is reauthorize it and effectively expand it. That’s why they had the cloture vote, they wanted to restrict all that, they didn’t want any amendments. And they certainly don’t want to put back in place the requirement under the Fourth Amendment that you must have the Fourth Amendment standard, which is a warrant from the third branch of the government even if it’s through the Secret Court, the Foreign Intelligence Surveillance. They don’t want that. They wanted a more general warrant, in essence a warrant-free license to simply pull whatever communications they can and desire when they’re “targeting a foreign entity.”
AARON MATÉ: Coleen Rowley, as you watch this vote proceed in the Senate without even a debate, your thoughts?
COLEEN ROWLEY: Well, I think Tom described it perfectly. They really don’t want a debate because then they would have to explain instead of using this weasel terms indicating or at least trying to fool the American public that Americans are not under surveillance. In fact, if you go all the way back to after 9/11 when George Bush turned the switch on, it was a collect-it-all program. It was not called the Terrorist Surveillance Program at the time, it was called the Presidential Surveillance Program. They knew that it was illegal to collect communications of Americans but they went ahead with it anyway under kind of a form of martial law almost. So, at this point, a lot of people have forgotten those things, and when Mitch McConnell says, “We need this for defense.” If we could have a debate, we could have people explain that there are perfectly good and reasonable ways to target terrorists without collecting it all on Americans.
The worst thing about this debate it did not allow for amendments, and there is a perfectly reasonable amendment that would require probable cause to go into that database now that does have millions and maybe even billions of pieces of data about Americans. So, if you don’t curb the collection, at least you could curb the looking at that data afterwards by requiring a warrant based on probable cause. Again, the fact that the Democrat were partially, if not even in a major way, responsible for cutting off the debate is not only stupid on their part because they themselves could be targeted and have in the past, but they just don’t want the American public to understand these issues.
AARON MATÉ: So Coleen, as we’re speaking today, Jeff Flake, the Republican Senator, has given a speech on the Senate floor essentially comparing Trump to Stalin. He said, “An American president who can not take criticism, who must constantly deflect and distort and distract, is charting a very dangerous path. And a Congress that fails to act as a check on that president adds to the danger.” Now, Flake said these words just hours after he voted with the majority to end debate on the surveillance bill and move to a final vote, where it’s likely expected to pass. By the time this video is published, it probably will have passed. If you could explain, how could the government, as you mentioned, they have before, how could Attorney General Jeff Sessions, for example, use this to target political opponents?
COLEEN ROWLEY: Yes. It’s so ridiculously stupid for people who claim that Trump is threatening our civil liberties and he’s racist, and stupid, and all the things that he’s called. These same politicians now voting to give Trump even wider spying powers, not only on all Americans but even on themselves. Actually, you can even say Trump is the one who’s being really dumb to authorize this because he, in the past, has gotten also caught up in these interceptions of communications of his campaign. So, on both sides, you have people playing political theater, and so engaged in the political theater that they don’t realize that the American public will see the hypocrisy here.
But this can actually hurt Americans. For instance, the database is so large that if people now check a name, and they don’t need probable cause to check any American’s name in there, and they come up with something, they can build a criminal case based on whatever information is already collected in that database. That would just affect ordinary Americans. Probably the greater danger to our democracy is that powerful Americans who vie for power in Washington, we see this play out all the time, trying to dig up dirt on each other, on opponents, on sexual scandals, et cetera. When they are in power, they then can ask for those databases to be checked, again, without any probable cause or any check on it. I think those are the two greatest dangers.
AARON MATÉ: Thomas Drake, your concerns about what the greatest dangers are, picking up on what Coleen was just saying?
THOMAS DRAKE: Well, it effectively hands the Executive Branch not only a continuation of the FISA Amendments Act but in reauthorizing it. And the assumption now is, based on the cloture vote, that it will pass, and it will go into law once Trump signs it. There’s no indication at all that Trump would not sign it. What it’s doing is simply extending the Executive Branch’s ability to do warrant-free monitoring of a significant portion of domestic communications involving Americans. It also permits what-about searches against the database that Coleen referenced, and it provides a “loophole,” what Senator Ron Wyden has referred to as the backdoors mechanism, and all under the guise of “conducting foreign intelligence for national security purposes.”
I also want to highlight that not only does it monitor, which is otherwise known as surveilling Americans as part of this program, if Jeff Sessions declares that it’s for National Security purposes, it is unreviewable by the courts. In essence, the Executive Branch is now taking onto itself the review process, which is a violation of the separation of powers in terms of the three branches of the government. Of course, Congress is just going along with this.
For me, it’s the emperor, let’s just say the emperor here has no clothes. And it’s important that Americans and others wake up to the fact that this is simply a continuation of what has been in place now since shortly after 9/11 under “legal means.” And I’ve heard the argument, Aaron, I’ve heard the argument, “Well, hey. If you’ve done nothing wrong, you’ve said nothing wrong, you’ve not committed any crimes, you have nothing to worry about.” Did you know that under this reauthorization act, there is an extraordinary irony that an actual criminal, let’s say targeted legitimately, doing actually, probable cause of criminal activity, actually has more rights than an American would under this reauthorization bill.
AARON MATÉ: How so?
THOMAS DRAKE: Well, because under the normal titles, if you go out, they can still do what you would call real warranted surveillance, right? When you actually have someone who’s engaging in probable criminal conduct. But by sweeping up, I say innocently, the communications of innocent Americans but not doing it innocently under the guise of. They have less rights than an actual criminal because the criminal at least has to have, in this case, would have to have a real warrant.
Now, they’re also using this in terms of parallel construction, that weird legal phrase which allows them to go roaming through all the data just to see, hey, what are people up to? Who are they have communicated with, or what might they be talking about based on their communication patterns? I just find it extraordinary that Congress is just willing to accede all this under the guise and collar and cover of National Security.
There’s another proviso. Marcy Wheeler, emptywheel, has really gone deep on this, in fact, the entire sordid history that anybody that’s using TorVPN is automatically suspect by the way. It doesn’t matter whether you’re an American. You’re automatically suspect in engaging in “wrong behavior” because you’re using encrypted communications, or anonymized communication. And then you got the FBI, this big database, we don’t know what the parameters are. They refuse to provide to the Congressional staffers when they were attempting, i.e. to negotiate as they were coming up for reauthorization. There was a point apparently, as I understand it, just from what’s been published in the media, that they would not actually explain what the parameters are for doing these searches and then what do they do with the results of the searches.
AARON MATÉ: So Thomas, who do you expect to be targeted by this most likely? And just to explain something you said there. So, if someone uses a VPN for example, which is a tool to hide your IP address for privacy, that makes you subject to greater scrutiny just by virtue of seeking to protect your privacy?
THOMAS DRAKE: That is correct. By virtue of using, you’re protecting your communications, the assumption is that the government has the license to strip your protections because you’re using communications as hiding your communications. I mean, it just flips this whole thing on its head.
AARON MATÉ: What does this mean for activists, for journalists, for people who voice dissenting opinions about the government?
THOMAS DRAKE: It means that they could easily fall under this regime. They’ve got the cover of, “Well, you were communicating with someone who was communicating with someone overseas,” or “You were communicating with someone that we, or an entity, that we have defined as foreign.” By the way, the actual definition is extraordinarily loose. They can include an entire facility. We got to remember in terms of fiber optic, which is the fundamental backbone of internet, basically any internet communications that pass outside the US or are rerouted are subject to this type of surveillance. In fact, under the 702, which you may have, we haven’t heard the term as much. This came out in Snowden disclosures called PRISM. They can actually do upstream collection. That permits NSA to work with telcos and telecoms to copy, scan and filter all the internet and phone traffic coming from the physical infrastructure of those entities.
AARON MATÉ: Right. This refers to all the data that comes through these underseas cables, right? So, even before they enter the US, the NSA can grab them?
THOMAS DRAKE: Right, but the argument, if you go back and look at the detailed language of the FISA Amendments Act, they had this 51% targeting threshold to define what is foreign. But we don’t know, what does it mean? What’s that 1% that makes it foreign?
AARON MATÉ: Right.
THOMAS DRAKE: I mean, it’s facile in terms of manufacturing different definitions of words in order to fit what they want to fall under the blanket of something they claim is legal. This is ultimately a general warrant. It’s not permitted by the Constitution, but as I was told a long time ago, “Hey, why let the Constitution stand in the way when National Security takes primacy?” I mean, to me, it’s just a huge Kabuki dance here, Aaron. It really is.
AARON MATÉ: We have to wrap, but Coleen Rowley, final thoughts?
COLEEN ROWLEY: Well, I think I’ll go out on a limb and worry that we are going to return to the 1960 era that lead to the Church Committee. Yesterday was Martin Luther King Day and we forget that he was himself a huge target of the FBI and other intelligence agencies merely for his dissent on issues. I think with the McCarthyism going on, that we are unfortunately going to be returning to that dark era unless people really wise up quickly because this is very dangerous.
AARON MATÉ: Thomas Drake and Coleen Rowley, thank you so much.
THOMAS DRAKE: No, you’re welcome.
COLEEN ROWLEY: Bye.
AARON MATÉ: Thank you for joining us on The Real News.