Digging Deeper Into PRISM

On Thursday, The Guardian and The Washington Post published highly-classified National Security Agency documents revealing a massive Internet surveillance program called PRISM. Glenn Greenwald and Ewen MacAskill write:

The National Security Agency has obtained direct access to the systems of Google, Facebook, Apple and other US internet giants, according to a top secret document obtained by the Guardian.

The NSA access is part of a previously undisclosed program called Prism, which allows officials to collect material including search history, the content of emails, file transfers and live chats, the document says.

[…]

The Prism program allows the NSA, the world’s largest surveillance organisation, to obtain targeted communications without having to request them from the service providers and without having to obtain individual court orders.

With this program, the NSA is able to reach directly into the servers of the participating companies and obtain both stored communications as well as perform real-time collection on targeted users.

In short, there are three key revelations about the NSA/corporate relationship:

  1. Through PRISM, the NSA has direct access to company servers containing millions of Americans’ personal information.
  2. The NSA’s direct access to company servers is willing and participatory on those companies’ part.
  3. The NSA’s direct access to company servers is nevertheless unmediated by those companies. (Guardian: “But the Prism program renders [the consent of internet and telecom companies] unnecessary, as it allows the agency to directly and unilaterally seize the communications off the companies’ servers.”)

One slight problem emerged after the program was announced: Google, Facebook, Apple, Microsoft, and the other companies allegedly involved are all disputing the central assertion of these reports. Facebook’s Mark Zuckerberg and Google’s Larry Page, among others, both explicitly denied that they’ve provided “direct access” to their servers or data centers to PRISM or any other U.S. government surveillance program. As you’d expect for leaders of major corporations commenting on matters of national security, Zuckerberg and Page use the typical legal hedging — “we review each government request for data carefully” and so forth — but on direct access they’re all but categorical in denying it.

The direct access distinction matters because the true scope and nature of the program matters. In a companion editorial to his report, Glenn Greenwald — a man who has never exaggerated or misrepresented U.S. government programs or actions in his career — drew comparisons to the worst abuses of the Nixon administration when referring to PRISM and whistleblowing:

The times in American history when political power was constrained was when they went too far and the system backlashed and imposed limits. That’s what happened in the mid-1970s when the excesses of J Edgar Hoover and Richard Nixon became so extreme that the legitimacy of the political system depended upon it imposing restraints on itself.

According to a lone source, PRISM is a surveillance apparatus seemingly so vast, so invasive, and so unchecked that it directly threatens the Republic. Yet the tech companies themselves publicly and privately dispute that source’s key assertions. The Guardian itself can’t even find a single tech executive to confirm off-the-record that their company participated in the program or one similar to it or, most importantly, that the NSA had direct access to any of their servers.

PRISM’s existence has been independently confirmed but seemingly little else about its methods or capabilities has been independently verified beyond a single source. Both The Guardian and The Washington Post have substantially revised their original articles since first publishing them on Thursday and will likely continue to do so, although The Guardian‘s core allegations remain unchanged. Other outlets have also now raised the possibility that PRISM isn’t the sprawling, all-consuming domestic spying program the newspapers describe.

Silicon Valley’s denials and refutations could, of course, be the product of a vast, far-reaching conspiracy against American civil liberties. Or they could be telling the truth.

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Licenses to Kill

Wednesday night’s filibuster by Sen. Rand Paul was more than just political theater: it revealed a surprising congressional consensus in favor of the Obama administration’s drone warfare and targeted killing programs. Despite exhortations about the decline of civil liberties and repeated allusions to Nazi Germany, the senators present expressed support for most of the White House’s policy. Sen. Ron Wyden, the lone Democrat to join Paul’s filibuster, summarized it thusly:

Now, to be clear and this was a point that Senator Paul made in the course of discussion, targeted killings of enemy fighters, including targeted killings that involved the use of drones, can be a legitimate wartime tactic. And if an American citizen chooses to take up arms against the United States, there will absolutely be circumstances in which the President has the authority to use lethal force against that American.

Thus, if an enemy combatant is a foreign national on foreign soil, a foreign national on U.S. soil, or even a U.S. citizen on foreign soil in certain circumstances, neither Sen. Paul nor Sen. Wyden expressed a problem with the targeted use of military force against them. (Paul later expressed doubts about the efficacy and wisdom of signature strikes in Pakistan and Yemen, but did not call them illegal or unconstitutional.) Only targeted killings within U.S. borders and against American non-combatants — an outlandish scenario, to say the least — raised the senators’ ire.

This relative harmony on targeted killings between Barack Obama and Rand Paul, two otherwise ideologically-disparate politicians, isn’t as surprising as one might think. Before Rand Paul was elected to the Senate, his father Ron Paul had carved out a formidable reputation for himself on civil liberties in the House of Representatives. Within days of the September 11th attacks, the elder Paul even expressed doubts about the Authorization for Use of Military Force against Terrorists, or AUMF, for which he had voted. Rep. Paul worried about investing the President with broad authority to conduct foreign military operations, and so he proposed that Congress and the President avail themselves of another constitutional option:

Sadly we find ourselves today dealing with our responsibility to provide national security under the most difficult of circumstances.
To declare war against a group that is not a country makes the clear declaration of war more complex.
The best tool the framers of the Constitution provided under these circumstances was the power of Congress to grant letters of marque and reprisals, in order to narrow the retaliation to only the guilty parties. The complexity of the issue, the vagueness of the enemy, and the political pressure to respond immediately limits our choices.

Letters of marque and reprisal, derived from Congress’ enumerated powers, are an archaic legal means by which Atlantic nations empowered privateers to hunt down and bring pirates to justice. In modern terms, a congressional letter of marque and reprisal would give private individuals and corporations a legal license to capture or kill al-Qaeda members overseas (who would then be technically regarded as perpetrators of “air piracy”). One month after the September 11th attacks, Rep. Paul introduced the September 11 Marque and Reprisal Act of 2001, which would have empowered the president as follows:

 (a) The President of the United States is authorized and requested to commission, under officially issued letters of marque and reprisal, so many of privately armed and equipped persons and entities as, in his judgment, the service may require, with suitable instructions to the leaders thereof, to employ all means reasonably necessary to seize outside the geographic boundaries of the United States and its territories the person and property of Osama bin Laden, of any al Qaeda co-conspirator, and of any conspirator with Osama bin Laden and al Qaeda who are responsible for the air piratical aggressions and depredations perpetrated upon the United States of America on September 11, 2001, and for any planned future air piratical aggressions and depredations or other acts of war upon the United States of America and her people.

(b) The President of the United States is authorized to place a money bounty, drawn in his discretion from the $40,000,000,000 appropriated on September 14, 2001, in the Emergency Supplemental Appropriations Act for Recovery from and Response to Terrorists Attacks on the United States or from private sources, for the capture, alive or dead, of Osama bin Laden or any other al Qaeda conspirator responsible for the act of air piracy upon the United States on September 11, 2001, under the authority of any letter of marque or reprisal issued under this Act.

The act’s findings clearly delineate the powers within “the al-Qaeda conspiracy” as defined by Rep. Paul as “a continuing one among Osama bin Laden, al Qaeda, and others known and unknown.” As subsection (b) notes, the bounty is paid whether the target is “alive or dead,” allowing the privateers to take into account the feasibility of capture — much like the recently-leaked Department of Justice white paper on targeted killings. Under this proposed legislation, the president would also be explicitly authorized to target persons solely for “planned future actions,” a standard beyond even the Obama administration’s current definition of imminence. Letters of marque and reprisal, like the AUMF, do not have geographic limits, and although the act forbids them against persons in the United States, it would theoretically allow the pursuit of al-Qaeda members and affiliates anywhere in the world. Although the bill went nowhere in 2001, the bill received some media attention when Rep. Paul reintroduced it in 2007: POLITICO, scoffing at Ron Paul’s planned presidential bid, dismissed the legislation as “wacky.”

Even without the bounties and the requirement that the persons and entities empowered to hunt al-Qaeda be “privately armed,” this marque-and-reprisal program would have legal parameters wider than those currently claimed by the Obama administration’s targeted-killing program. Indeed, Rep. Paul intended for his legislation to be interpreted broadly. “Once letters of marque and reprisal are issued,” he stated while introducing it on the House floor, “every terrorist is essentially a marked man.”

Rand Paul and Ron Paul are different men and don’t share all of each other’s political positions, so it’d be unfair to extend the father’s rationale to the son.  Yet it does suggest a common approach between the elder Paul’s brand of libertarianism and Obama’s emergent foreign policy doctrines, forged simultaneously in the crucible of the Bush years. The two men, both wary of long-term, large-scale military operations in the Middle East, opposed the Iraq War and sought ways to bring the Afghan War to a close. Yet both the elder Paul and Obama also realized the imminent need to bring Osama bin Laden and the 9/11 perpetrators to justice.

To that end, each fashioned policies that would hunt down and eliminate al-Qaeda members wherever they hid, using what they viewed as the least-destructive methods available. For Ron Paul, this meant private actors and corporations. For Barack Obama, this meant government-led operations. In this alone, reflective of their worldviews, the two men diverged.

Liberty and Union

Four months ago, I watched with a group of my friends as the country re-elected Barack Obama to the presidency of the United States. Giddy with triumph and relief, I turned to my friends and exclaimed, “Hooray! I’m not going to lose my health insurance in ten months!” (Had Mitt Romney been elected and fulfilled his campaign pledge to repeal Obamacare, I would no longer be eligible for coverage by my parents’ health insurance upon my birthday this August.) One of my friends and former coworkers, Jason, replied with equal relief, “Hooray! I’m not going to be treated like a second-class citizen!”

Jason is gay, and under the laws of the United States, and of many states thereof, he is a second-class citizen. Although I’ve supported marriage equality since my state rejected in 2002, it had never personally hit home for me like it did in that moment. For me, the election had been about horses and bayonets, about Obamacare and death panels, and about Mitt Romney and his binders full of women. For Jason, the election could result in a glimmer of hope — or the sustenance of legal bigotry. In every state, he cannot donate blood. In twenty-eight states, he cannot adopt children with his partner. In twenty-nine states, he is not legally protected from workplace discrimination. In twenty-nine states, he is not legally protected from housing discrimination. In forty-one states, he cannot marry whom he loves. 

It used to be worse. Within the last three years alone, he has gained the right to defend his country and the right to visit whom he loves in a hospital. Now, earlier today, the Department of Justice submitted an amicus curiae brief in Hollingsworth v. Perry, on behalf of the United States of America, that urged the Supreme Court to strike down California’s Proposition 8. In the 33-page brief, the Obama administration hath loosed the fateful lightning from its terrible swift sword.

One by one, like the blows of a sledgehammer, the Department of Justice breaks down myths about gay and lesbian couples. “Sexual orientation generally bears no relation to ability to perform or contribute to society,” they state in their call for the application of heightened scrutiny — a judicial determination as to the extent of protection necessary for a minority group. Proposition 8 proponents, the petitioners in this case, argue that marriage is intended to produce a stable institution for procreation and child-rearing. Not so, says the federal government, citing among others the historic 1967 Supreme Court decision overturning miscegenation laws. Besides, what threat do same-sex couples pose to opposite-sex couples? (The correct answer is “none whatsoever,” as the brief implies.)

It’s a foolish argument by the petitioners either way since, as the federal government observes, Proposition 8 doesn’t affect child-rearing or parenting in any way. It doesn’t even prevent same-sex parenting! Not that it should, of course. “The overwhelming expert consensus is that children raised by gay and lesbian parents are as likely to be well adjusted as children raised by heterosexual parents.” That’s the federal government of the United States, declaring in writing before the highest court in the Republic that same-sex couples can raise children just as well as anyone else. “Indeed,” the federal government argues, “because a substantial number of California children are raised in households headed by same-sex couples, Proposition 8 actually disserves the goal of improving child welfare by denying families access to the added stability and social acceptance provided by marriage.”

Wait just a second here, the petitioners then argue, let’s not be too hasty with what would be a seismic change for American society. This requires thoughtful analysis and careful consideration, they plead. The federal government could not be more incredulous at this claim if it were wearing lederhosen and juggling chainsaws. Even if you think not denying gay and lesbian citizens their basic human rights deserves slow deliberation, “…Proposition 8 does not embody such an approach but rather goes to the opposite extreme. It permanently amends the California Constitution to bar any legislative change to the definition of marriage.” To twist the knife, the federal government notes that “similar calls to wait have been advanced — and properly rejected — in the context of racial integration, for example.” Congratulations, anti-equality advocates: the United States Department of Justice just compared you to segregationists in a court of law.

That’s not the only comparison to segregationists drawn in the brief. When attacking the claim that Proposition 8 defends “traditional” (i.e., mainstream Christian) marriage, the federal government notes:

Indeed, marriage has changed in certain significant ways over time — such as the demise of coverture and the elimination of racial restrictions on marital partners — that could have been characterized as traditional or fundamental to the institution. As this court has observed, “laws once thought necessary and proper” may in fact “serve only to oppress,” and, “[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Well said.

The last major argument advanced by the petitioners is that Proposition 8 “serves an interest in returning the issue of marriage to the democratic process.” That’s not the point, the federal government retorts, and in fact begs the question. LGBT Americans are a well-defined minority whose protection cannot be — and heretofore has not been — guaranteed through the democratic process. That necessary role, the federal government argues, falls to the judicial branch.

To that end, the Obama administration’s arguments for this case, and to the broader issue of marriage equality in the courts, is tactical and well-chosen. By closely tailoring their arguments to refute those of the plaintiffs’, and by proposing only that Proposition 8 be struck down, the government does not ask for more than the Court can immediately provide. Nevertheless, by refuting the democratic self-governance argument (often used by the majority to deny marriage equality nationwide) and proposing the heightened scrutiny standard for sexual orientation, the government’s argument lays the groundwork for the justices to take two steps towards universal marriage equality: first by striking down its prohibition in California, then by using the Hollingsworth precedent in a subsequent case to strike down all prohibitions nationwide.

This strategy suits the court’s current conservative tenor. The Roberts Court expanded Second Amendment rights in a similar manner: first by recognizing an individual right to bear arms in D.C. v. Heller, which only dealt with the District of Columbia, then by using that ruling as precedent to expand its decision to the states in McDonald v. Chicago two years later. Of the justices who dissented in Lawrence v. Texas, the Supreme Court’s most recent LGBT rights case, only two remain on the bench — the ever-implacable Clarence Thomas and the always-immovable Antonin Scalia. Of the remaining seven, only Justice Alito’s stance remains a mystery. The Court’s four liberal justices (for want of a better term) will almost certainly vote to strike down Proposition 8, as would Justice Kennedy, who sided with the majority in Lawrence. Chief Justice Roberts, who joined the court two years after Lawrenceworked pro bono on LGBT rights cases while in private practice in 1996. I would be shocked if he did not join the majority in striking down Proposition 8.

Make no mistake: the Obama administration and the Roberts Court are moving swiftly at last towards marriage equality. If they do not flag or falter, both Jason and the millions of other LGBT Americans won’t be second-class citizens for much longer.