NSA Scandal Update 2

June 17, 2014–Just a couple of days ago I wrote about bad-mannered criticisms by Michael Kinsley that aimed America back toward a 1984-style society (“Ugly Image in Critic’s Mirror,” June 15, 2014). Mr. Kinsley stated his preference for living in a society where the government decides what information the public can learn about. Two items from yesterday’s news illustrate just how dangerous is that preference.

In a development from Chicago, the Federal Circuit Court overruled district court judge Sharon J. Collins, who had decided for a motion this past January that would have given lawyers access to evidence the U.S. government had submitted to the FISA court. Lawyers defending a man alleged to have planned a terrorist bombing of a Chicago bar, under the appeals court decision, are thus barred from seeing the evidence used to justify full NSA surveillance of this individual. Under legal precedent established by the Supreme Court, warrants can be invalidated if they were premised on omission or misrepresentation. We have already seen massive omission and misrepresentation in the NSA program, hence there is reasonable suspicion that might be the case with the agency’s FISA application here. By its decision the appeals court robs the defendant of the ability to test the quality of the FISA application.

Our other development is from across the pond, where NSA’s British counterpart, the Government Communications Headquarters (GCHQ), as a result of a document sprung loose by a freedom of information lawsuit, has been forced to reveal some of its rationale for dragnet surveillance. The GCHQ believes that a British citizen is legitimately subject to electronic eavesdropping if she or he makes any use of a message service (like Google, Facebook, or Twitter) that uses servers or search engines located outside Great Britain. GCHQ insists its spying is legitimate even in the case of British citizens inside the UK merely communicating with each other.

These are the authorities Michael Kinsley would like to rely upon to say what can be released to the people.

Meanwhile, on the diplomatic front the real costs of NSA spying are evident in the kid gloves being used by Vice-President Joseph R. Biden, Jr. on a trip to Brazil. Biden’s visit, ostensibly to watch the United States and Ghanian teams compete for the World Cup of football, is potentially the highest-level contact between the U.S. and Brazil since the spooks’ eavesdropping on Brazilian President Dilma Rousseff became known last year. Rousseff then cancelled a long-awaited visit to the U.S. and sternly criticized Washington at the United Nations General Assembly last fall. Right now Biden and Rousseff are tip-toeing around each other, both telling reporters the time may be right, conditions have “matured,” and so on. This dance may lead to a meeting. If it does, feathers will have to be smoothed, but Brazilian-American relations could be back on track.

The score? A full year of void for the United States with one of its major Latino trading partners–and for Brazil its second-largest foreign market. A continued delicate rapprochement which may yet go awry (there remains the question of whether the U.S. will apologize for its spying). All of this because a bunch of stupid spooks couldn’t keep their ears in their pants. This real cost is not due to the leak of the fact of the spying, it is entirely because of what the NSA is, in fact, doing.

 

Ugly Image in Critic’s Mirror

June 15, 2014–Last week a very irate diatribe against Glenn Greenwald’s book on Edward Snowden and his leak appeared in the New York Times Book Review. From liberal columnist Michael Kinsley, I cringed as I read some of this–and I hoped it would go away. But I’ve seen yet more commentary on this very review since then, so now I think it’s become necessary to say something.

To set the context, Glenn Greenwald is the journalist who worked most closely with Edward Snowden. The latter gave his secret NSA material to Greenwald, filmmaker Laura Poitras, and a couple of other reporters, and they wrote and published the stories which brought the Snowden leak to the public. The book No Place to Hide is Greenwald’s account of his role, of Snowden the man, and his evaluation of the information Snowden has revealed. Much of Kinsley’s review is ad hominem. Greenwald is a “ruthless revolutionary,” Snowden a “political romantic.” The reviewer drags in Julian Assange of Wikileaks–completely uninvolved in this latest fracas–to call him a “narcissist.” Kinsley makes claims as to Greenwald’s procedures, and Snowden’s supposed goal of martyrdom. As an author myself I often confront the spectacle of a review that doesn’t go my way–and I respect the reviewer’s right to whatever opinion she or he may have reached. So I’m going to pass on the pyrotechnics of the Kinsley v Greenwald pie fight–except to say that it appears to me that Mr. Kinsley got himself so worked up over those aspects of his subject that he blinded himself to far more dangerous doctrines proposed in the course of his diatribe.

In the second paragraph of his review Kinsley jumps right in by asserting the world is complex, not simple, and that laws exist against both government eavesdropping on the American people as well as against leaking secret information. “You can’t just choose the laws you like and ignore the ones you don’t,” the reviewer wrote. The truth is, to quote Mr. Kinsley, “It’s not that simple.” It was  the government (of the people, by the people, and for the people) that first chose to break the law–and more than that, to obtain even more leeway by securing changes to the law, using false pretenses to reduce its vulnerability to criminal infraction.

The first question in “U.S. Government v Snowden,” as this controversy can readily be imagined, is which violation is greater, that of spy agencies trampling on the constitutional rights of all citizens while calling it protection–and legal to boot–or the infraction of the citizen who called out the government for its eavesdropping. Snowden has said, rightly, that he swore an oath to protect the Constitution of the United States, not any particular set of leaders or bosses. The president and all those other officials swore the same oath. The Nuremberg principles, which flowed from war crimes prosecutions after the Second World War, enshrined the proposition that carrying out the orders of a superior officer was no defense against a person’s commission or omission of actions that constitute crimes. Bottom line– the NSA and U.S. government actions are not so white, nor are Mr. Snowden’s acts so black, as Michael Kinsley would have us believe.

The central element in Kinsley’s indictment of Glenn Greenwald concerns the role of the press in publicizing Snowden’s leak. Here the reviewer lets the personal intrude on the institutional. Ask Michael Kinsley on any given Sunday his view of the Fourth Estate as a pillar of democracy and I’m sure he would say the right thing. But, unminded by his vision of Greenwald the revolutionary, here Kinsley writes “it seems clear, at least to me, that the private companies who own newspapers, and their employees, should not have the final say over the release of government secrets.”

In that alternate history timeline there is no purpose to a whistleblower, because only government decides what becomes known. There is also no democracy, for that exists only when a people have the knowledge to rein in their government.

Kinsley further writes that Mr. Greenwald, in citing evidence that the majority of citizens now agree on the oppressiveness of this eavesdropping, undermines his own argument. The ability to hold that opinion, the reviewer observes, shows that dissent has not been suppressed. But again, it’s not that simple. Citizens can hold the opinion they do because they learned of what the NSA is up to courtesy of the Snowden leak, brought to them by Greenwald and other journalists. Not Greenwald but Kinsley undermines his own argument.

Let us not forget that government, in the form of the NSA’s superior, Fearful Leader James R. Clapper, the Director of National Intelligence, lied to the public, through Congress, when asked directly about this same information. Fearful Clapper did so with no compunction, invented some mumbo jumbo about mental distraction to pass off this serious dereliction of duty, and even took the BS to a higher level by sending out his top consigliere to make the same claim.

These are the people Michael Kinsley would have as the arbiters of what citizens are permitted to know. Kinsley’s imagined America is not our country, it is the land of 1984. If that were to be abetted by an emasculated press it would be a tragedy. Personally I don’t think Mr. Kinsley really wants what he appears to have been writing about.