Welcome to the Panopticon, Muslim Americans

The ongoing exposure of the Surveillance State from materials appropriated by Edward Snowden continues, as Glenn Greenwald and Murtaza Hussain at The Intercept report that five Muslim Americans with no detectable link to national-security threats were treated to the old NSA email monitoring routine (with direction from the FBI) without much of a peep from those vaunted Foreign Intelligence Surveillance Act secret courts that we’re supposed to trust with the defense of our privacy.  

One of the five profiled by Greenwald and Hussain was Faisal Gill, who worked for the Bush-era Department of Homeland Security, held a top-secret clearance, and ran for office as a political candidate, which should up the ante for anyone who doesn’t think this Panopticon stuff was disturbing enough already:

The five Americans whose email accounts were monitored by the NSA and FBI have all led highly public, outwardly exemplary lives. All five vehemently deny any involvement in terrorism or espionage, and none advocates violent jihad or is known to have been implicated in any crime, despite years of intense scrutiny by the government and the press. Some have even climbed the ranks of the U.S. national security and foreign policy establishments.

“I just don’t know why,” says Gill, whose AOL and Yahoo! email accounts were monitored while he was a Republican candidate for the Virginia House of Delegates. “I’ve done everything in my life to be patriotic. I served in the Navy, served in the government, was active in my community–I’ve done everything that a good citizen, in my opinion, should do.”

Some distressingly unprofessional behavior from the intelligence community is chronicled, including a template for FISA surveillance memos that uses “Mohammed Raghead” as the placeholder name for the individual to be placed under surveillance.  The FISA courts don’t seem to be going over those memos with a high degree of skepticism:

It is unclear whether the government obtained any legal permission to monitor the Americans on the list. The FBI and the Justice Department declined to comment for this story. During the course of multiple conversations with The Intercept, the NSA and the Office of the Director of National Intelligence urged against publication of any surveillance targets. “Except in exceptional circumstances,” they argued, surveillance directly targeting Americans is conducted only with court-approved warrants. Last week, anonymous officials told another news outlet that the government did not have a FISA warrant against at least one of the individuals named here during the timeframe covered by the spreadsheet.

Supposedly the high rate of FISA approvals is due to the exceptionally “thorough vetting process that weeds out weak applications before they reach the court,” but the cases for surveillance of the five individuals described in the Intercept article look about as weak as it gets.  It’s hard to get the full story, beyond the data Snowden pinched, because the whole process is shrouded in secrecy (and couldn’t work any other way, according to its defenders.)  It’s not comforting to hear both devastating criticism and robust defense of the Panopticon coming from the same official:

A former Justice Department official involved in FISA policy in the Obama Administration says the process contains too many internal checks and balances to serve as a rubber stamp on surveillance of Americans. But the former official, who was granted anonymity to speak candidly about FISA matters, acknowledges that there are significant problems with the process. Having no one present in court to contest the secret allegations can be an invitation to overreach. “There are serious weaknesses,” the former official says. “The lack of transparency and adversarial process–that’s a problem.”

Sooooo… there are enough checks and balances to keep the FISA courts from becoming a rubber stamp for out-of-control surveillance, except that those checks and balances have significant problems, and there aren’t really any checks and balances on the checks and balances, so the result is out-of-control surveillance.  If you don’t like being under surveillance, tough, because you’ll never know, and even if you did, there aren’t any adversarial processes to accommodate your desire to become an adversary.  Don’t expect much help from the people you vote for, or the top-name people they appoint, because don’t really know what’s going on:

Thanks to Snowden’s disclosures, those seeking to obtain such a ruling [against spying] now have specific cases of surveillance against American citizens to examine. So do those charged with reforming the FISA process. Richard Clarke, a former counterterrorism official in the Clinton and Bush administrations, served on the recent White House intelligence review panel convened to address concerns raised by the Snowden revelations. If he had seen the NSA spreadsheet, Clarke says, he would have asked more questions about the process, and reviewed individual FISA warrants.

“Knowing that, I would specifically ask the Justice Department: How many American citizens are there active FISAs on now?” he says. “And without naming names, tell me what categories they fall into–how many are counterterrorism, counterintelligence, espionage cases? We’d want to go through [some applications], and frankly, we didn’t. It’s not something that five part-time guys can do–rummage through thousands of FISA warrants.”

This all loops back around to fundamental questions about the right to privacy, due process, and the presumption of innocence that have been asked for generations, but are being asked in a new way, now that a previously unthinkable level of surveillance is possible.  The technology of the Digital Panopticon is a force multiplier that allows a relatively modest investment of government resources to yield enormous dividends of information, in much the way that gardening by hand cannot compete with the crop yields of modern industrial agriculture. 

Most of us understand – and, according to polls, support – the notion of giving government agencies broad powers to detect threats, whose potential yield of death and terror for the resources invested has also increased tremendously.  Security and terror are both industrial-scale propositions now.  But we expect probable cause and due process, not freewheeling surveillance of everyone who catches the eyes of the spies – and if you’re inclined to dismiss this because you don’t think you belong to any group that would attract the attention of government agents (i.e. “I don’t care if they randomly spy on prominent Muslims because I’m not a Muslim”) that’s not only an unprincipled attitude, but objectively wrong.  In this hyper-politicized and increasingly corrupt environment, it’s quite likely that you do belong to some group or demographic makes somebody in the bureaucracy nervous.  

It all comes down to confidence, and that’s not the same thing as blind faith in the State.  You might have noticed from a variety of stories – say, the IRS scandal, or the VA scandal – that the State is very good at ruining lives today, then spending the next several years evading the consequences in slow motion.  There is a difference between being defended, and being imprisoned.