Judges, Congress, Obama—Hiding in Plain Sight:

U.S. Rulers Battle Over How, Not Whether, to Continue Their Massive, Criminal NSA Spying

May 25, 2015 | Revolution Newspaper | revcom.us


The past month has seen representatives of different sections of this system’s ruling class—from the courts, to Congress, to the White House—openly arguing over how to amend the U.S. Patriot Act, passed shortly after 9/11 to give the government free rein to wield unprecedented powers of all kinds. But this is not a debate over “reining in” an “over-reaching” national security state; nor is it about "balancing individual privacy with the efforts to protect the American people" against the danger of terrorist attack. This is a conflict among different ruling sections of the world’s most powerful empire over how to enable their global spy apparatus—the U.S. National Security Agency, or the NSA—to continue its once-secret, vast and horrific surveillance operations that are essential to maintaining their global domination, but have shaken and outraged people in this country and around the world. This debate continues to rage as we write.

This massive and criminal spying was first brought to light by Edward Snowden, a former contractor for the NSA who courageously stepped forward and made at least hundreds of thousands of secret government documents public. As a result, beginning with journalist Glenn Greenwald’s reporting in The Guardian in June 2013, a continuing stream of exposures has revealed a magnitude of surveillance that is utterly horrific. The NSA has been collecting massive amounts of information about telephone and Internet usage by literally billions of people around the planet.

The NSA programs include bulk collection of information on every phone call in the U.S.; about who is calling whom, duration of calls, etc. (known as “metadata”) which can be used to draw out links between different people and patterns of actions, and as a basis for homing in on specific individuals, including the content of calls. This includes vacuuming up data directly from the servers of major U.S. companies like Google, Microsoft, Yahoo, and Facebook.

As we wrote in November, 2013 after months of bullshit denials coming from those in power:

It's become clear since the flood of NSA exposures began in June that the U.S. is, in fact, doing everything they claimed they're not doing. They said they don't spy on the phone calls of everyone in the U.S.—they are. They claimed that the "metadata" they're collecting is not really spying—this is, in fact, invasive surveillance that provides the kind of "intel" that the U.S. uses to track and even assassinate people—including U.S. citizens—without trials. They said they only collect data with cooperation of phone and Internet service providers—in fact, they've broken into the communication networks that carry vast amounts of personal information. (“What's Driving the U.S. to Massively Spy on Billions of People?”)

The Debate: How to Pursue the Interests of This Empire

In looking at the current conflict within their ranks, it’s essential to break out of the terms of the debate taking place within the ruling class. As we wrote previously in relation to this NSA scandal:

…we can see how the divisions within the ruling class have become very intense, in the context of questioning among broad numbers of people about the illegitimacy of the spying and growing distrust of the government…. These differences among the rulers are NOT mainly over concerns about the gross violation of people’s basic rights and privacy. The contention is over how best to pursue the overall interests of their class, in the face of the huge political storm unleashed society-wide and across the globe by the Snowden leaks—over what “reforms” should be made to quiet down this storm and repair the legitimacy of the state in the eyes of the people, while safeguarding the capabilities of the U.S. intelligence apparatus. ("Obama's Speech on the NSA: The Empire's SPIES & LIES")

For broad masses of people in this country these revelations have brought to the surface and intensified a growing concern and mistrust in the system and those who rule it. And they have had an impact internationally, particularly in Europe, where there has been disillusionment of broad masses about their own country’s involvement in the same spying operations.

Federal Appeals Panel Rules NSA Spying Illegal

It is in the context of this increasing lack of confidence that on May 7 a three-judge federal appeals panel in New York issued a ruling holding that the NSA’s vast, massive collection of phone and Internet metadata on millions and millions of people in this country is illegal. This ruling came as a result of a lawsuit filed by the ACLU shortly after Edward Snowden’s release of NSA's secret documents. Specifically, the judges found that the NSA’s claim—that the language of Section 215 of the U.S. Patriot Act enabled them to carry out this massive, secret collection of information—was wrong and illegal. In making this finding, the three judges were going against the previous findings of a District Court which had found that these actions by NSA could not be challenged by a court. But the judges didn’t conclude that it was against the U.S. Constitution—just that it needed to be approved by Congress.

A glimpse of the federal judges’ level of concern about the impact of Snowden’s revelations on the broad masses of people in this country stands out in the text of the ruling. They compare the situation today with the period of the early 1970s, which had been tremendously affected by Daniel Ellsberg’s release of the Pentagon Papers—documents showing the government had lied about the purposes of the Vietnam war, and that they didn’t believe they could win it; and by the break-in of the FBI office in Media, PA, which first revealed the existence of “COINTELPRO”—the FBI”s “counter-intelligence program,” used to viciously attack and murder members of the Black Panther Party, to threaten MLK with exposure of his sexual activities in an effort to get him to commit suicide, and to carry out other secret operations. In the ruling’s Background section, the judges write:

In the early 1970s, in a climate not altogether unlike today’s, the intelligence-gathering and surveillance activities of the NSA, the FBI, and the CIA came under public scrutiny. The Supreme Court struck down certain warrantless surveillance procedures that the government had argued were lawful…. In response to that decision and to allegations that those agencies were abusing their power in order to spy on Americans, the Senate established the Senate Committee to Study Governmental Operations with Respect to Intelligence Activities (the “Church Committee”) to investigate whether the intelligence agencies had engaged in unlawful behavior...

…We are faced today with a controversy similar to that… We must confront the question whether a surveillance program that the government has put in place to protect national security is lawful…. As in the 1970s, the revelation of this program has generated considerable public attention and concern about the intrusion of government into private matters.   

The ruling by this three-judge panel has complicated the battle between different sections of the ruling class over how to respond to and get around the ruling, while keeping the NSA’s massive metadata collection intact.

U.S.A. Freedom Act

Much of the struggle between those in power has been focused on the USA Freedom Act, a bipartisan bill first submitted to Congress in 2013 in response to Snowden’s release of the NSA documents. While it has gone through many changes, the intention of this act from the beginning has been to give the appearance of restraining, or preventing the NSA from collecting and storing this bulk data through amending the Patriot Act’s Section 215. What it actually does is give a green light to NSA’s massive surveillance by defining how it should be carried out. A final version of this act was passed handily by the House of Representatives on May 13, 2015, by a vote of 338-88.

But there has been and continues to be sharp opposition to the Freedom Act or any amending of the Patriot Act, especially among those who were the original architects of the expansion of NSA’s already vast surveillance operations following 9/11. In November 2014, a former Director of the CIA who had been Director of the NSA when 9/11 took place, Michael V. Hayden, co-authored (with a former U.S. Attorney General, Michael Mukasey) an op-ed piece for the Wall Street Journal entitled “NSA Reform That Only ISIS Could Love: The misnamed USA Freedom Act is exquisitely crafted to hobble the gathering of electronic intelligence.” They wrote: “Those people and everyone else at the NSA live in constant dread of failing to detect a terrorist attack. Nonetheless, the sponsors of the USA Freedom Act prefer the counsel of hypothetical fears [of loss of privacy] to the logic of concrete realities.”

Days following the passage of the Act, John Yoo—Justice Department General Counsel under George Bush and a war criminal and chief architect of the U.S. policy of open, legal torture—criticized the version of the Act signed by the House because it could make it more cumbersome for the NSA to continue to do the very same spying they have been doing. Yet the final version of the Act was backed by the current head of the NSA, James Clapper, and supported by Republican House Speaker John Boehner and many other House Republicans.

The new “Freedom” Act passed by the House has also been endorsed by the Obama Administration. The White House statement openly praised the way the Act preserved the “freedom” that the NSA needs to keep all of its massive surveillance in place. It said the president believes “…we should end the Section 215 bulk telephony metadata program as it currently exists by creating an alternative mechanism to preserve the program’s essential capabilities without the government holding the bulk data.” [our emphasis]

In other words, what the so-called U.S.A. Freedom Act will actually do is let the NSA have access to all the files it wants, when it wants them, for whatever their purposes; only keeping them in the various phone and internet companies’ storage facilities instead of their own. Those companies will be required to preserve all phone data and make it available to the NSA at any time. To their credit, the ACLU, which filed the lawsuit that was the basis for the recent court decision, has withdrawn its backing for the Freedom Act, as has the Electronic Frontier Foundation.

On the other hand, with key parts of the Patriot Act—including Section 215—supposedly going out of existence unless the Senate approves the House version of the Freedom Act by June 1, Senate Majority Leader Mitch McConnell and other Republican Senators continue their own opposition to the passage of the Act, and until now have kept it from being voted on.

There is likely to be much real and manufactured “drama” between now and the end of the month, and some basic things need to be understood. First and foremost, it is crucial to challenge and break out of the whole framework that says the interests of the masses of people here or internationally are represented by any of these conflicting ruling class programs; that the debate over spying carried on by the government is (or should be) about "balancing privacy concerns with necessary measures to prevent terrorist attacks" about strengthening U.S. “national security” in order to keep Americans “safe.”

A crucial point that needs to be grasped is that the repressive activities of the NSA and other intelligence agencies reveal a system at work—the system of capitalism-imperialism. The NSA is part of a state that enforces the interests of the ruling capitalist-imperialist class—in other words, the dictatorship of the ruling class, the bourgeoisie.

The massive spying on all kinds of activities of people around the world is a result of the reality that those who hold power in this country—the U.S. capitalist-imperialists—are facing all kinds of complex, growing challenges to their global empire. The necessity to respond to those challenges is what is fundamentally driving them to so intensely spy—on their rivals, on their allies, and on billions of ordinary people. As we wrote shortly after the Snowden leaks first came out:

This capitalist-imperialist system enslaves workers in its sweatshops in Bangladesh and its oil fields of Saudi Arabia. It has created a planet of slums and environmental devastation, its morality and culture have produced an epidemic of rape. And this system wages constant wars around the world against the threats from rivals or smaller-scale reactionary forces, and brings down violent repression against legitimate protests and opposition to its crimes. That is why this state sees the vast majority of people on this planet—billions and billions of people—as potential threats, and maintains such intense and broad surveillance. And that is why the state apparatus—the dictatorship of the capitalist-imperialist class (the bourgeoisie)—does what it does to people. (From “Five Points of Orientation on the Revelations of Government Surveillance”)


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