‘Just Salute and Follow Orders’: When Secrecy and Surveillance Trump the Rule of Law

“The Secret Government is an interlocking network of official functionaries, spies, mercenaries, ex-generals, profiteers and superpatriots, who, for a variety of motives, operate outside the legitimate institutions of government. Presidents have turned to them when they can’t win the support of the Congress or the people, creating that unsupervised power so feared by the framers of our Constitution…” – Journalist Bill Moyers and White House press secretary under President Johnson (1988)

Question: How can you tell when a politician is lying?  Answer: When he’s moving his lips.

If that didn’t generate a chuckle, how about:

Q: Why is honesty in politics like oxygen?

A: The higher you go, the scarcer it gets.

Then there’s President Obama’s gaffe on the Tonight Show: “We don’t have a domestic spying program,” which is downright laughable in light of this past year’s revelations about domestic spying by the National Security Agency. But if that still doesn’t push you over the edge into near hysterics, here’s one guaranteed to get the biggest laugh of all, at least from those clear-sighted enough to grasp the irony of a politician talking about “trust”:

“If people can’t trust not only the executive branch but also don’t trust Congress, and don’t trust federal judges, to make sure that we’re abiding by the Constitution with due process and rule of law,” declared President Obama in June 2013, in response to questions about the government’s domestic spying program, “then we’re going to have some problems here.”

What’s not at all amusing, of course, is the fact that our nation is riddled with all manner of problems, and it’s because we have government officials in the executive branch, Congress, and the courts incapable of abiding by the Constitution. These people have proven time and again that they cannot be trusted to do what they say, and they certainly can’t be trusted to abide by their oaths of office to uphold and defend the Constitution.

Indeed, the American people have been cheated and lied to for so long that we’ve arrived at a stage of disbelief and skepticism. So when the Obama administration announces that it will be rolling out proposals to rein in the NSA bulk collection of data about Americans’ private communications, you’d be perfectly justified in wondering what other far-fetched schemes they plan to sell you next.

Minus a few bells and whistles, Obama’s new NSA scheme is no different from the old scheme (apart from the fact that it’s worse): In a nutshell, the NSA will stop storing the data generated by American phone calls and will, instead, have the phone companies collect and store it in their own databases. Rather than the government storing metadata for up to five years, phone companies would keep the data for as long as they please.

Here’s where we’re just being subjected to more of the same scam: While the Obama administration works its sleight of hand trick over the bulk collection of telephony metadata, specifically related to land line calls, the NSA is collecting some 5 billion records on cell phone location data every single day. As before, this surveillance will not be confined to the targeted number, but could be expanded as far away as two “hops” in a chain of phone calls (“meaning all the numbers connected to the suspect number, and all the numbers connected to that first set of connections”), exponentially expanding the amount of information collected.

The NSA also has a program of surveillance by which they penetrate digital devices not connected to the Internet by means of radio waves. This program has been active since at least 2008, and the NSA has penetrated almost 100,000 computers through this method. And then there’s XKeyscore, a surveillance program which “intercepts 1.7 billion emails, phone calls and other types of communications each day” and “allows the government to enter a person’s name or other question into the program and sift through oceans of data to produce everything there is on the internet by or about that person or other search term.” These programs will continue unabated.

Also unfazed by Obama’s proposals regarding domestic phone calls are the NSA’s many nasty and nefarious methods of carrying out surveillance, including infecting target computers with malware by way of spam emails and Facebook in order to give NSA hackers access to the data stored on those devices and record audio or video from a computer’s microphone and webcam. This program, dubbed TURBINE, which has already infected up to 100,000 computers, can record conversations with computer microphones, snap photos with a webcam, record Internet browsing history, record login/password information, log keystrokes, and take data off of flash drives plugged into the computer.

Another program left untouched by Obama’s so-called NSA “reforms” is MYSTIC, which allows NSA agents to retrieve and listen to up to 30 days’ worth of all phone calls abroad, including Americans traveling abroad or placing calls outside the country. Clips of millions of those phone calls are then processed and kept for long-term storage.

Here’s where Obama’s new scheme would make things even worse: Under this new program, not only would government agents gain access to whatever data they please, but they would also receive real-time updates once a target number has been selected.

Moreover, by requiring phone companies to standardize their data, the government will be able to gain even greater access to Americans’ cell phone calls. And as always, the Foreign Intelligence Surveillance Court, which meets in secret, holds secret hearings and issues secret rulings, has a history of rubberstamping the NSA’s surveillance programs, would be relied upon for oversight. In fact, out of a mind-boggling 34,000 requests for surveillance, the FISA court has denied only 11 such requests.

Unfortunately, with so much of the public attention focused on the NSA’s misdeeds, there is a tendency to forget that the NSA is merely one of a growing number of clandestine intelligence agencies tasked with spying on the American people. Indeed, the CIA, FBI, DHS, and DEA among others, routinely step outside the bounds of the law in order to spy on the citizenry and will continue to do so.

The FBI, whose crimes against dissidents and minority groups stretch back to the founding of the organization, has been and will continue to serve as the NSA’s accomplice. One of the FBI’s most notorious tactics involves the use of National Security Letters, which are carried out without court approval and by which the agency “can demand financial records from any institution from banks to casinos, all telephone records, subscriber information, credit reports, employment information, and all email records of the target as well as the email addresses and screen names for anyone who has contacted that account.  Those who received the NSLs from the FBI are supposed to keep them secret.”  Moreover, tasked with collecting data from telecoms under the NSA’s Prism system, the FBI picked that data out of private servers, then turned around and handed it over to the NSA.

The FBI also conducts its own signals intelligence program, which focuses on collecting emails and other internet data from American companies. The main core of this operation is the Data Intercept Technology Unit (DITU), whose motto is “Vigilance Through Technology.” One of the DITU’s many responsibilities is making software that private companies install onto their networks in order to allow government agents ready access to personal information, whether emails or internet traffic. This surveillance is generally conducted without a warrant, as the FBI asserts the authority to collect metadata under the Patriot Act.

This is what is referred to as violating not only the letter of the law, but the spirit of the law, as well. By law, I am referring to the only law that truly matters – the U.S. Constitution – the only law that truly safeguards us against government abuse, overreach, expansion and secrecy, which for these very reasons continues to be trampled upon, shoved aside, disregarded, whittled down, choked to death, and generally castrated by the President, Congress, state governments, and the courts, who without fail march in lockstep to the bidding of the military and security industrial complexes, law enforcement officials, corporations and the like.

As journalist Bill Moyers, who served as White House Press Secretary during the Johnson administration, recognized in his 1987 expose book in which he interviews top military, intelligence, and government insiders to reveal the inner workings of the secret government:

[T]he powers claimed by presidents in national security have become the controlling wheel of government, driving everything else. Secrecy then makes it possible for the president to pose as the sole competent judge of what will best protect our security. Secrecy permits the White House to control what others know. How many times have we heard a president say, “If you only knew what I know, you would understand why I’m doing what I’m doing.” But it’s a self-defeating situation. As Lord Acton said, “Everything secret degenerates, even the administration of justice.” So in the bunker of the White House, the men who serve the president put loyalty above analysis. Judgment yields to obedience. Just salute and follow orders.

Reprinted with permission from the Rutherford Institute.

Author: John W. Whitehead

Constitutional attorney and author John W. Whitehead is founder and president of the Rutherford Institute. His new book, The Freedom Wars, (TRI Press) is available online at www.amazon.com. Whitehead can be contacted at johnw@rutherford.org. Information about the Rutherford Institute is available at www.rutherford.org.