Permanent Record (22 page)

If any NSA employee who didn’t work with the SharePoint software I managed knew anything at all about SharePoint, they knew the calendars. These were pretty much the same as any normal nongovernment group calendars, just way more expensive, providing the basic when-and-where-do-I-have-to-be-at-a-meeting scheduling interface for NSA personnel in Hawaii. This was about as exciting for me to manage as you might imagine. That’s why I tried to spice it up by making sure the calendar always had reminders of all the holidays, and I mean all of them: not just the federal holidays, but Rosh Hashanah, Eid al-Fitr, Eid al-Adha, Diwali.

Then there was my favorite, the seventeenth of September. Constitution Day and Citizenship Day, which is the holiday’s formal name, commemorates the moment in 1787 when the delegates to the Constitutional Convention officially ratified, or signed, the document. Technically, Constitution Day is not a federal holiday, just a federal observance, meaning that Congress didn’t think our country’s founding document and the oldest national constitution still in use in the world were important enough to justify giving people a paid day off.

The Intelligence Community had always had an uncomfortable relationship with Constitution Day, which meant its involvement was typically limited to circulating a bland email drafted by its agencies’ press shops and signed by Director So-and-So, and setting up a sad little table in a forgotten corner of the cafeteria. On the table would be some free copies of the Constitution printed, bound, and donated to the government by the kind and generous rabble-rousers at places like the Cato Institute or the Heritage Foundation, since the IC was rarely interested in spending some of its own billions on promoting civil liberties through stapled paper.

I suppose the staff got the message, or didn’t: over the seven Constitution Days I spent in the IC, I don’t think I’d ever known anyone but myself to actually take a copy off the table. Because I love irony almost as much as I love freebies, I’d always take a few—one for myself, and the others to salt across my friends’ workstations. I kept my copy propped against the Rubik’s Cube on my desk, and for a time made a habit of reading it over lunch, trying not to drip grease on “We the People” from one of the cafeteria’s grim slices of elementary-school pizza.

I liked reading the Constitution partially because its ideas are great, partially because its prose is good, but really because it freaked out my coworkers. In an office where everything you printed had to be thrown into a shredder after you were done with it, someone would always be intrigued by the presence of hard-copy pages lying on a desk. They’d amble over to ask, “What have you got there?”

“The Constitution.”

Then they’d make a face and back away slowly.

On Constitution Day 2012, I picked up the document in earnest. I hadn’t really read the whole thing in quite a few years, though I was glad to note that I still knew the preamble by heart. Now, however, I read through it in its entirety, from the Articles to the Amendments. I was surprised to be reminded that fully 50 percent of the Bill of Rights, the document’s first ten amendments, were intended to make the job of law enforcement harder. The
Fourth, Fifth, Sixth, Seventh, and Eighth Amendments were all deliberately, carefully designed to create inefficiencies and hamper the government’s ability to exercise its power and conduct surveillance.

This is especially true of the Fourth, which protects people and their property from government scrutiny:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Translation: If officers of the law want to go rooting through your life, they first have to go before a judge and show probable cause under oath. This means they have to explain to a judge why they have reason to believe that you might have committed a specific crime or that specific evidence of a specific crime might be found on or in a specific part of your property. Then they have to swear that this reason has been given honestly and in good faith. Only if the judge approves a warrant will they be allowed to go searching—and even then, only for a limited time.

The Constitution was written in the eighteenth century, back when the only computers were abacuses, gear calculators, and looms, and it could take weeks or months for a communication to cross the ocean by ship. It stands to reason that computer files, whatever their contents, are our version of the Constitution’s “papers.” We certainly use them like “papers,” particularly our word-processing documents and spreadsheets, our messages and histories of inquiry. Data, meanwhile, is our version of “effects,” a catchall term for all the stuff that we own, produce, sell, and buy online. That includes, by default, metadata, which is the record of all the stuff that we own, produce, sell, and buy online—a perfect ledger of our private lives.

In the centuries since the original Constitution Day, our clouds, computers, and phones have become our homes, just as personal and intimate as our actual houses nowadays. If you don’t agree,
then answer me this: Would you rather let your coworkers hang out at your home alone for an hour, or let them spend even just ten minutes alone with your unlocked phone?

The NSA’s surveillance programs, its domestic surveillance programs in particular, flouted the Fourth Amendment completely. The agency was essentially making a claim that the amendment’s protections didn’t apply to modern-day lives. The agency’s internal policies neither regarded your data as your legally protected personal property, nor regarded their collection of that data as a “search” or “seizure.” Instead, the NSA maintained that because you had already “shared” your phone records with a “third party”—your telephone service provider—you had forfeited any constitutional privacy interest you may once have had. And it insisted that “search” and “seizure” occurred only when its analysts, not its algorithms, actively queried what had already been automatically collected.

Had constitutional oversight mechanisms been functioning properly, this extremist interpretation of the Fourth Amendment—effectively holding that the very act of using modern technologies is tantamount to a surrender of your privacy rights—would have been rejected by Congress and the courts. America’s Founders were skilled engineers of political power, particularly attuned to the perils posed by legal subterfuge and the temptations of the presidency toward exercising monarchical authority. To forestall such eventualities, they designed a system, laid out in the Constitution’s first three articles, that established the US government in three coequal branches, each supposed to provide checks and balances to the others. But when it came to protecting the privacy of American citizens in the digital age, each of these branches failed in its own way, causing the entire system to halt and catch fire.

The legislative branch, the two houses of Congress, willingly abandoned its supervisory role: even as the number of IC government employees and private contractors was exploding, the number of congresspeople who were kept informed about the IC’s capabilities and activities kept dwindling, until only a few spe
cial committee members were apprised in closed-door hearings. Even then they were only informed of some, but not all, of the IC’s activities. When rare public hearings on the IC were held, the NSA’s position was made strikingly clear: The agency would not cooperate, it would not be honest, and, what was worse, through classification and claims of secrecy it would force America’s federal legislatures to collaborate in its deception. In early 2013, for instance, James Clapper, then the director of National Intelligence, testified under oath to the US Senate Select Committee on Intelligence that the NSA did not engage in bulk collection of the communications of American citizens. To the question, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper replied, “No, sir,” and then added, “There are cases where they could inadvertently perhaps collect, but not wittingly.” That was a witting, bald-faced lie, of course, not just to Congress but to the American people. More than a few of the congresspeople to whom Clapper was testifying knew very well that what he was saying was untrue, yet they refused, or felt legally powerless, to call him out on it.

The failure of the judiciary was, if anything, even more disappointing. The Foreign Intelligence Surveillance Court (FISC), which oversees intelligence surveillance within the United States, is a specialized body that meets in secret and hears only from the government. It was designed to grant individual warrants for foreign intelligence collection, and has always been especially accommodating to the NSA, approving well over 99 percent of the agency’s requests—a rate more suggestive of a ministerial rubber stamp than a deliberative judicial process. After 9/11, the court expanded its role from authorizing the surveillance of specific individuals to ruling on the legality and constitutionality of broad programmatic surveillance, without any adversarial scrutiny. A body that previously had been tasked with approving the surveillance of Foreign Terrorist #1 or Foreign Spy #2 was now being used to legitimize the whole combined infrastructure of PRISM and upstream collection. Judicial review of that infrastructure was
reduced, in the words of the ACLU to a secret court upholding secret programs by secretly reinterpreting federal law.

When civil society groups like the ACLU tried to challenge the NSA’s activities in ordinary, open federal courts, a curious thing happened. The government didn’t defend itself on the ground that the surveillance activities were legal or constitutional. It declared, instead, that the ACLU and its clients had no right to be in court at all, because the ACLU could not prove that its clients had in fact been surveilled. Moreover, the ACLU could not use the litigation to seek evidence of surveillance, because the existence (or nonexistence) of that evidence was “a state secret,” and leaks to journalists didn’t count. In other words, the court couldn’t recognize the information that was publicly known from having been published in the media; it could only recognize the information that the government officially confirmed as being publicly known. This invocation of classification meant that neither the ACLU, nor anyone else, could ever establish standing to raise a legal challenge in open court. To my disgust, in February 2013 the US Supreme Court decided 5 to 4 to accept the government’s reasoning and dismissed an ACLU and Amnesty International lawsuit challenging mass surveillance without even considering the legality of the NSA’s activities.

Finally, there was the executive branch, the primary cause of this constitutional breach. The president’s office, through the Justice Department, had committed the original sin of secretly issuing directives that authorized mass surveillance in the wake of 9/11. Executive overreach has only continued in the decades since, with administrations of both parties seeking to act unilaterally and establish policy directives that circumvent law—policy directives that cannot be challenged, since their classification keeps them from being publicly known.

The constitutional system only functions as a whole if and when each of its three branches works as intended. When all three don’t just fail, but fail deliberately and with coordination, the result is a culture of impunity. I realized that I was crazy to have imagined
that the Supreme Court, or Congress, or President Obama, seeking to distance his administration from President George W. Bush’s, would ever hold the IC legally responsible—for anything. It was time to face the fact that the IC believed themselves above the law, and given how broken the process was, they were right. The IC had come to understand the rules of our system better than the people who had created it, and they used that knowledge to their advantage.

They’d hacked the Constitution.

A
MERICA WAS BORN
from an act of treason. The Declaration of Independence was an outrageous violation of the laws of England and yet the fullest expression of what the Founders called the “Laws of Nature,” among which was the right to defy the powers of the day and rebel on point of principle, according to the dictates of one’s conscience. The first Americans to exercise this right, the first “whistleblowers” in American history, appeared one year later—in 1777.

These men, like so many of the men in my family, were sailors, officers of the Continental Navy who, in defense of their new land, had taken to the sea. During the Revolution, they served on the USS
Warren,
a thirty-two-gun frigate under the command of Commodore Esek Hopkins, the commander in chief of the Continental Navy. Hopkins was a lazy and intractable leader who refused to bring his vessel into combat. His officers also claimed to have witnessed him beating and starving British prisoners of war. Ten of the
Warren
’s officers—after consulting their consciences, and with barely a thought for their careers—reported all of this up the chain of command, writing to the Marine Committee:

Much Respected Gentlemen,

We who present this petition are engaged on board the ship Warren with an earnest desire and fixed expectation of doing our country some service. We are still anxious for the Weal of Amer
ica & wish nothing more earnestly than to see her in peace & prosperity. We are ready to hazard every thing that is dear & if necessary sacrifice our lives for the welfare of our country. We are desirous of being active in the defence of our constitutional liberties and privileges against the unjust cruel claims of tyranny & oppression; but as things are now circumstanced on board this frigate, there seems to be no prospect of our being serviceable in our present station. We have been in this situation for a considerable space of time. We are personally well acquainted with the real character & conduct of our commander, Commodore Hopkins, & we take this method not having a more convenient opportunity of sincerely & humbly petitioning the honorable Marine Committee that they would inquire into his character & conduct, for we suppose that his character is such & that he has been guilty of such crimes as render him quite unfit for the public department he now occupies, which crimes, we the subscribers can sufficiently attest.