Wednesday, June 26, 2013

Whistleblower and Patriot

Governor Thomas Hutchinson was the last British governor of the Massachusetts Bay Colony. The colonists had hoped that their governor would be sympathetic to their grievances against the Crown, but Hutchinson was an unabashed loyalist. In what is widely regarded as one of the key incidents to bring the colonists to war, Hutchinson’s private letters to England were intercepted and made public.
Here were the views of this governor that caused the people of Boston to mob his home and call for his removal: “I never think of the measures necessary for the peace and good order of the Colonies without pain: there must be an abridgment of what are called English liberties.”  Moreover, he declared that, “there must be a great restraint of natural liberty” if the colonists are to be brought to heel.
Benjamin Franklin, the first Postmaster of the American colonies, eventually took sole responsibility for leaking these letters to the public. He expressed some moral qualms about violating the privacy of the post. He eventually concluded that the Hutchinson letters were not “private letters between friends” but were instead “written by public officers to persons in public station, on public affairs, and intended to procure public measures.” 

Here we find a principled argument to determine whether a whistleblower is justified in his or her actions. Because members of government are public servants, their recommendations bearing on public affairs are not entitled to secrecy. This is particularly true when it becomes known that a public servant is in fact conspiring against the preservation of liberty, and is found out betraying and committing treason against the principles of law that he or she is sworn to uphold. 
Franklin’s famously apropos quote goes, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” The dispiriting truth, however, is that many Americans are so worn down by fear of terrorists, or the daily grinding uncertainty of their economic status and the paralysis that comes from feeling powerless against the monied interests who have stolen our government, that these high-minded ideals do not stir their souls. 

These “whistleblowers” cannot be regarded as anything other than heroes, who have shown courage that many Americans cannot show because they lack the means, or do not show because they lack the spirit of patriotism: 

Daniel Ellsberg: “Since 9/11, there has been, at first secretly but increasingly openly, a revocation of the bill of rights for which this country fought over 200 years ago. In particular, the fourth and fifth amendments of the US constitution, which safeguard citizens from unwarranted intrusion by the government into their private lives, have been virtually suspended.”

Friday, June 21, 2013

Myths about FISA, Creating Unfounded Support for It

While pondering why it is that Americans aren’t MORE upset about the recent revelations concerning the National Security Agency (NSA) and their use of the Foreign Intelligence Surveillance ACT (FISA), I have noticed that many people are mistaken on the basic facts. To address this, I’ve identified some common myths.  

Myth 1: The Foreign Intelligence Surveillance Court (FISC) cannot secretly collect data from American citizens without a warrant. This myth comes from sources like the Office of the Director of National Intelligence; in a written statement, the office claims “the statement that a single analyst can eavesdrop on domestic communications without proper legal authorization is incorrect (”  The language is a bit cagey. The concern is not whether an analyst can “eavesdrop.” The concern is that intelligence agencies can compile vast amounts of electronic data without probable cause. And phrases like “proper legal authorization” should immediately alert the reader that he or she is being scammed.    


1.       “Telecoms give intelligence agencies access to facilities and data ‘offshore’ so that they don't have to go through a judge to get permission (” 

2.       If a call is being made between a foreign citizen and an American, information about the American can be retained and used for intelligence-gathering purposes (

3.       The Department of Homeland Security is currently lobbying to have access to the same data that is available to NSA (

Myth 2: Information “inadvertently” obtained about American citizens CANNOT be used to prosecute the American for crimes unrelated to terrorism. One source of this myth is President George W. Bush, who firmly declared that American rights are safeguarded under FISA ( Of course, in the same statement, he alludes to the fact that Americans who happen to be overseas are fair game for electronic surveillance. 
Do as you are told.


1.       A FISA court can hand over evidence on Americans for criminal prosecution, provided that the government claims to have other means of pursuing prosecution that do not involve domestic law enforcement agencies (

Myth 3: FISA has been around for over 30 years. Making all this fuss now is just silly. OK, I haven’t seen this myth promulgated by anyone other than pedants who write comments to liberal news blogs. But it’s irritated me so much that I have to mention it. 


1.       Although FISA legislation was first signed by Jimmy Carter in 1978, several seemingly minor but terribly significant changes have been made to the legislation. Before 2001, an investigator had to certify to a FISC judge that the purpose for electronic data gathering was to collect foreign intelligence. After 2001, an investigator only needs to certify that one of the purposes of the electronic data gathering is related to collecting foreign intelligence (
2.       A “wall” separating foreign intelligence activities and domestic law enforcement did exist, but ended in 2002 (refer to Myth #2). 

Myth 4: President Obama has been honest about his intentions to “reign in” the NSA. This one comes from President Obama himself. I assume that there are some partisan democrats out there who might be convinced by it. 


1.       In 2009, President Obama declared that he would “meaningfully curtail” the McCarthy Era “State Secrets” provision which allows the Executive to fend off legal challenges to the arrest and detention of American and foreign citizens ( In 2013, President Obama continues to make use of the State Secrets provision ( Notably, the State Secrets provision was invoked by President Obama when a whistleblower revealed that all calls in one AT&T location were being filtered through a room full of NSA hardware. 

2.       Evidently willing to insult the intelligence of Americans, President Obama refers to current NSA spying practices as “transparent” ( According to the Cambridge English Business Dictionary, transparency is "a situation in which business and financial activities are done in an open way without secrets, so that people can trust that they are fair and honest" ( And according to the McMillan Dictionary, transparency is, “an honest way of doing things that allows other people to know exactly what you are doing (”

Tuesday, June 18, 2013

Our Surveillance State

“We learn from history that we do not learn from history”
-- Georg Wilhelm Friedrich Hegel

A thoughtful American, an American who is familiar with history and with the tendency of history to repeat itself, is apt to be horrified at the increasing power of our government to conduct surveillance on its citizens. The idea that secret courts use secret evidence to authorize warrantless investigations of Americans ought to bring to mind the Star Chambers of bygone years. Any number of tired clichés will apply: a bright red line has been crossed. The proverbial canary in the coal mine has died. 

It could be a lack of comprehension. We are told that spying on Americans requires a warrant, and this is adequately reassuring for many people. To be reassured by this glib claim, however, is to fail to understand the meaning of a warrant. Any authorization that is issued by a secret court that has been given extra-Constitutional powers, based on secret evidence, and executed by faceless enforcement officials, is not a “warrant” at all. 

In a democratic society, a warrant is a public document. It allows concerned citizens to evaluate the judge’s decision, the soundness of the evidence, and the appropriateness of the actions of enforcement officials. It is not some kind of magic talisman which legitimizes the invasion of privacy and the loss of liberty. A warrant, properly understood, is one means by which citizens can oversee their own government and be satisfied that the government is not overstepping its authority. In a democratic society, the people have the power and ability to audit the activities of their government. This is how a government will remain accountable to the people. 

The Foreign Intelligence Surveillance Court demands that private companies such as Verizon hand over information on Americans that ought to be considered confidential, such as data on private phone conversations. Moreover, under the law, it is stated that “no person shall disclose to any other person that the FBI or NSA has sought or obtained tangible things under this Order.” This secret court can compel law-abiding Americans to refrain from exercising their First Amendment right to free speech. Employees at Verizon have been pressed into the service of this new Surveillance State. If they do not inform on the activities of their fellow citizens, they will be liable for criminal sanctions. 

What does history teach us?  As Hegel said, history teaches us that we do not learn from history. And the question is why don’t we learn? I had a conversation recently where I drew a comparison between the current situation in the United States and the German Democratic Republic (GDR) that existed from the 1940’s until the Berlin Wall finally collapsed for the want of a legitimate foundation. 

To me, the comparison seemed apt. In the GDR, a police force known as the Stasi had the authority to spy on law-abiding citizens. In a relatively short span of time, the number of Stasi grew to an alarming size, and every single adult citizen of GDR could reasonably expect that, at least some of the time, that there would be a faceless official listening in on his or her phone calls. 

I was told that this was an unreasonable comparison to make. Maybe this is the reason we do not learn from history: the idea that we, as Americans, would not make the same mistake that the East Germans made. Americans, we suppose, would never be seduced by the ideology of communism. By making this supposition, we have in effect decided that the example of the GDR can teach us nothing. We have decided that the East Germans who accommodated themselves to a horrifying Surveillance State are utterly unlike us. 

I persisted, saying, “You must see the parallels between the secret courts of the GDR and the secret courts we have here in the United States?” I was told, “The situation in the GDR was so much worse.” 

In fact – and particularly during the early years – the citizens of the GDR did not believe that they were living in a bad situation. The people of Germany had survived the trauma of World War II, ashamed of their own complicity in Nazi imperialism. The German economy was in ruins. People were starving. People were unemployed. People had a hard time imagining a better future. There was no unified German government, only a provisional, coalition government representing the interests of the United States, Great Britain, France, and the USSR.

A band of communists formed, promising a way of government that would permanently abolish imperialistic ambitions. They promised a government that would make, as its top priority, satisfying the basic needs of its people.  When the GDR came into power, the economy rapidly improved, particularly in the agricultural sector. East Germans could buy food inexpensively, drink inexpensive beer, live in subsidized apartments, enjoy free health care, and never have to worry about crime or unemployment.  

Robert Havemann was one of the leading opponents of the GDR. Yet, he was able to appreciate how the government had been able to maintain popular support. He understood that the GDR had a higher standard of living than neighboring countries. He understood the appeal of living in a secure, stable, predictable society. 

Nineteen years after its founding, however, the GDR was less confident in the support of the people. The Constitution was re-written. “Important basic rights, which were guaranteed in its first constitution, were abolished in a new constitution, including the right to strike and the right to an impartial court of justice, in which citizens can protest the measures of state organs.” In the new Constitution, agitating against the state had become a crime. 

And it seemed that, merely by happenstance, there was no longer, “even a single critical and independent newspaper” to challenge what members of government were telling its people. Havemann reflected on the situation in a telling passage, 

It is very obvious that all the repression and limitations on freedom bring about the opposite of what they were intended to achieve. They are supposed to serve the security of the state, but in fact they are the main cause of the increasing insecurity of the state. Under such conditions, even the last bit of trust between citizens and the state will ultimately fade away – from both sides, in fact. ‘He who does not trust will not be trusted in return’ – this is how it was put by the Chinese scholar Lao Tse, who lived two and a half millennia ago.
My reason for writing this, dear reader, is that I feel a duty to donate some of my time to speak out as a concerned American citizen. If any of what I have said resonates with your own views, please tell your friends.