Snowden leaks already have been enormously consequential

fort_gordon.jpgMany supporters within the government, media, and citizenry have simultaneously argued that Edward Snowden didn’t reveal anything that we didn’t already know, so what’s the big deal, and also that his exposure of top secret spying programs that are keeping us all safe from The Terorrists is an unconscionable act of treason that should result in his execution.

Any person possessing minimal critical thinking skills should see the contradiction. It can’t be the case that these programs were well known publicly and thus inconsequential while at the same time they were deeply secret and revealing their existence has aided our enemies.

I’ll leave it up to you to decide which is the case, my point is that both things can’t be true at the same time.

Another argument I’ve seen is that nobody cares about any of these programs, this isn’t a real scandal, and that everybody will forget about it all in a week or two. That is not true for a number of reasons.

The Obama administration almost immediately began briefing members of Congress on these programs and allegedly many others run by the National Security Agency, rank-and-file members that aren’t normally privy to intelligence briefings like these that are normally reserved for party leaders.

Member states of the European Union, which has much stronger privacy laws than the United States does, demanded written assurance from President Obama that their citizens were not being spied on by the NSA and even demanded that EU citizens be given a way to know if they had been spied on. German Chancellor Angela Merkel plans to question Obama in person next week.

Senator Rand Paul promised to file a class action lawsuit against the government on behalf of citizens who he believes have been unconstitutionally spied on, and the American Civil Liberties Union has already filed a similar lawsuit which experts say could break new legal ground because these programs being public knowledge will prevent the government from getting the lawsuit dismissed out of hand based on claims of state secrets.

A bipartisan group of senators have proposed new legislation that would force the government to declassify a huge number of opinions from the ultra-secret Foreign Intelligence Surveillance Court, which has been repeatedly and consistently decried as a rubber stamp court for virtually never denying a government spying request.

Major Internet companies like Google and Facebook have pledged to begin fighting the government to allow them to release more information on the secret requests they receive, and several have simply done so with or without government permission.

Perhaps most consequential of all these things, second only to the possibility of a court finally deciding of these programs are legal, is the accusation from members of Congress that Director of National Intelligence, James Clapper, may have perjured himself while testifying to Congress.

Does that sound like nothing consequential? Does it sound like everybody is going to forget what happened in a couple of weeks? None of those things would have happened without these intelligence leaks.

For the first time in 12 years, there is a good chance that at least one of the NSA’s secret domestic spying programs will have its constitutionality be questioned in a court of law. The Bush and Obama administrations have had every lawsuit against such programs thrown out merely on the word of the administration that trying to defend the legality of such programs would mean acknowledging their existence, which itself would breach national security. That argument will almost certainly make an appearance again, but it may not be accepted precisely because existence of these programs is a public fact made possible by the leaks of Edward Snowden.

Foreign governments whose citizens may have been spied on by the NSA are outraged, forcing our government to answer tough questions and possibly make privacy reforms in order to maintain good relations with what are supposed to be our allies.

Several new pieces of legislation have been proposed in response to these leaks, which includes a hilarious bill proposed by national security state defender Senator Dianne Feinstein that would limit private contractor access to classified information which would unintentionally do more to curtail the surveillance state than anything proposed by civil liberties defenders.

And does anyone honestly believe that Google, Facebook, and Microsoft would have out of the goodness of their hearts, released information about secret government requests for personal information on American citizens — including email, photos, and chat conversations — had their hand not been forced by these leaks?

Everything I’ve just described was set in motion within the past week by the whistle blowing efforts of Edward Snowden. Think of what you will about him being a hero or a traitor, none of that is debatable.

Moments after publishing this story, I noticed that CNET’s Declan McCullagh broke news just a little while ago that the federal government revealed to Congress in a classified briefing that the National Security Agency is in fact listening to the contents of phone calls, and is doing so without warrants even from the rubber-stamp Foreign Intelligence Surveillance Court:

Rep. Jerrold Nadler, a New York Democrat, disclosed this week that during a secret briefing to members of Congress, he was told that the contents of a phone call could be accessed “simply based on an analyst deciding that.”

If the NSA wants “to listen to the phone,” an analyst’s decision is sufficient, without any other legal authorization required, Nadler said he learned. “I was rather startled,” said Nadler, an attorney who serves on the House Judiciary committee.

Not only does this disclosure shed more light on how the NSA’s formidable eavesdropping apparatus works domestically, it suggests the Justice Department has secretly interpreted federal surveillance law to permit thousands of low-ranking analysts to eavesdrop on phone calls.

What the administration just told Congress directly contradicts what it has been telling the public about surveillance of telephone call content, and as Declan noted, the administration’s interpretation of law that they believe allows them to do this legally would also cover email and text message content.

What the administration told Congress would also seem to confirm Snowden’s claims that his NSA access allowed him to wiretap any person in the country on a whim, which is hugely important given how that claim has been used by critics in the defense establishment world to defame and smear Snowden as a liar.

Update 2
There’s some question about whether Congressmen Nadler is confusing the metadata gathering with listening to phone conversations, which is obivously quite important. This needs to be sorted out and may end up subject to interpretation. Beware of absolutes.

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