This demonstrates only too clearly that although the aim of the American state secrets privilege is to protect national security, in practice it is often used to eliminate embarrassment — political, bureaucratic, organisational or individual embarrassment at past failures ... It also shows how giving a government agency an absolute right to secrecy encourages bad behaviour. The American agencies could easily have stopped the defrauding of British citizens without the matter going to court, given their enormous leverage in the matter. Instead, they chose to suppress justice.Could the current attempt to stop the case against the NSA over the domestic surveillance programme be a similar bid to "suppress justice" and protect reputations? It is not a far-fetched possibility. One key figure in the warrantless wiretapping saga has even openly gloated about how he is pleased state secrets privilege is being used to shield him. General Michael Hayden, who was the director of the NSA between 1999 and 2005, said with a smirk a few weeks ago that he was "personally grateful to Obama for using the state secrets argument to stop some of these court proceedings — because I am personally named in some of these courts." Perhaps most alarming, though, is the bigger picture at play here. When any democratic government repeatedly resorts to secrecy to protect the disclosure of information the public has a right to know, it has lost its way. It is broken, existentially fractured. In my own experience as a journalist, the US has a stronger culture of freedom of information than the UK does, but at the highest echelons of power there remains a definite absence of transparency and accountability. The ongoing surveillance case, and the aggressive bid to suppress it, is only the latest example.
Sunday, 30 September 2012
Sunday, 9 September 2012
On 11 September 2001, the day of the Twin Towers attacks, Hayden explained how he stood behind blacked out curtains at an NSA building in Washington and thought to himself, "things are going to be different around here tomorrow. We have entered into an entirely new era." Within about two hours of the first plane striking the first World Trade Center tower that morning, Hayden said he had used his authority to "dial things up a little bit" at the NSA in order to give the agency "a higher probability we would intercept those kind of messages that would tell us about the next attack." Hayden didn't elaborate exactly on what it means to "dial things up," but I think it's safe to assume it means intercepting a much larger volume of communications. (Hayden said that because he had "dialed things up" then-CIA director George Tenet a few days later joked to him that he was "going to jail" but President Bush and Vice-President Dick Cheney said it was alright because they would "bail him out.") In the weeks ahead, President Bush gave Hayden more powers. This led to the domestic wiretapping scandal revealed by the New York Times in 2005, which exposed how the NSA had been granted authority to spy on "the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible 'dirty numbers' linked to al Qaeda." But that was just the start. And despite the controversy around the domestic wiretapping exposed by the New York Times, as Hayden said in his speech, a 2008 amendment to the Foreign Intelligence and Surveillance Act "not only legitimated almost everything President Bush had told me to do under his article two authorities as commander in chief but in fact gave the NSA a great deal more authority to do these kinds of things." Aside from the surveillance, Hayden also overseen a variety of other ghoulish new tactics brought in amid the terror fears. There was the kidnapping, or extraordinary rendition, of suspects from one country to the other — often to countries where they were allegedly subject to torture, like Egypt and Libya. There was also the secret black sites — hidden prisons in locations such as Poland and Thailand — where terror suspects were subjected to a variety of so-called 'enhanced interrogation techniques' like waterboarding, which makes a person feel like they are drowning. Not to mention the Guantanamo Bay prison, the indefinate detention of accused terrorists, and the birth of remote-controlled drone strikes as a method of 'targeted killing' or extrajudicial assassination — however you want to term it. None of this Hayden has any reservations about. In his speech he explained it was all about how America had to "take the fight to the enemy" wherever he (or she) may be. He even recounted a meeting in Germany during the spring of 2007, where he gave a speech to a room of about two dozen people including representatives from every country in the European Union. He spoke about extraordinary rendition and America's tactics in the War on Terror. Not one person present in the room, he said, agreed with any of the justifications he gave for the use of such tactics. But this didn't dissuade him. His essential position could be summarised as, "how could we possibly be wrong?" Perhaps a mindset that can be attributed to American exceptionalism, the belief that the US has a unique mission in the world to spread its ideals. Hayden was evidently not preoccupied at all with minor irritations like human rights obligations and international law. Rather, he explained how his main concern was in early 2009, when Barack Obama was sworn in to the White House. He was worried that Obama, a Democrat who had voiced strong criticism of George W. Bush's counter-terror policies, might seek to scale back efforts in the War on Terror. Hayden had at this point moved to the CIA, where he was director. But his fears about Obama being a soft touch were quickly alleviated. Obama continued almost all of Bush's policies, Hayden explained, because he realised "we are at war" with al-Qaeda and its affiliates. In the end, there was a "powerful continuity" between Bush and Obama, Hayden said. "Targeted killings have continued, in fact if you look at the statistics targeted killings have increased under Obama" ... "renditions, that's the extrajudicial movement of suspected terrorists from place A to place B — our policy is the same under President Obama as it was under President Bush and President Clinton." He went on: Obama "didn't shut Guantanamo" and he also took the same position as Bush on "indefinite detention and state secrets" ... "I am personally grateful to Obama for using the state secrets argument to stop some of these court proceedings — because I am personally named in some of these courts." Perhaps most revealing, the one discontinuity between Bush and Obama from a counter-terror perspective, Hayden said, was (and is) the difference between the presidents when it comes to killing or capturing terror suspects. Under Bush many suspected insurgents were captured, incarcerated and interrogated. Under Obama, according to Hayden, just one person has been held outside of Iraq and Afghanistan since January 2009. Obama has been accused of preferring to kill than capture, though this is something he has denied. He said in a recent interview that "our preference has always been to capture when we can because we can gather intelligence" but that it’s sometimes "very difficult to capture them." According to Hayden, however, the kill rather than capture policy is a political decision. "We have made it so politically dangerous and so legally difficult that we don't capture anyone anymore. We take another option. We kill them," he said. And in a thinly veiled criticism of Obama's aggressive killing policy, Hayden added: "We're losing the opportunity to interrogate and to learn about our enemy." contravene international law, the interrogation techniques widely considered to constitute torture, the extrajudicial killings in countries like Pakistan, Yemen and Somalia, where there has been no formal declaration of war. And here he is applauding Barack Obama, a president elected on a platform oppositional to many of these tactics, for keeping up a "powerful continuity." In fact, his only criticism of Obama is that he is doing too much killing.
Approximately two hours after the first terror attack on New York in September 2001, Hayden used his authority as chief of the NSA to "dial things up" and get more "aggressive" with communications interception. This prompted a colleague at the CIA to tell him, jokingly, that he was "going to jail," and in turn led President George W. Bush to authorise the domestic wiretapping program that permitted the NSA to spy on emails and phone calls of Americans without a warrant. Hayden is "personally grateful" to President Barack Obama for protecting him from being held to account in a court of law by invoking state secrets privilege. A 2008 amendment to the Foreign Intelligence and Surveillance Act "legitimated" everything president Bush had authorised the NSA to do regarding the domestic wiretapping of communications and "gave the NSA a great deal more authority to do these kinds of things." Hayden says there has been "powerful continuity" between the counter-terror tactics used by President Bush and President Obama, including on extraordinary rendition. However, he said one area of discontinuity is that Obama has a preference for killing terror suspects as opposed to capturing them — because it is now considered "so politically dangerous and so legally difficult" to capture.
The other thing that struck me about Hayden in this speech was his general demenour. The way he was making quips and smirking about how he was thankful Obama was protecting him from being held to account in American courts over the actions of the agencies he was in charge of. There was an arrogance about his comments, an air of impunity. Hayden came off as a man with an almost sociopathic disdain for the basic rule of law.His justification for the controversial tactics was simple: al-Qaeda and its affiliates constitute a "new threat to old institutions." Terror groups have no regard for laws like the Geneva Convention and blur the distinction between civilian and combatant. Therefore, and this is the core logic underpinning Hayden's remarks, America's security apparatus has to do the same. It has to evolve (or, rather, regress) and "take the fight to the enemy" using whatever means necessary. The problem is that there is no conclusive evidence anywhere to suggest that this is a successful method of combating the threat in the first place. Killing people and indefinitely detaining them, implementing secret systems of mass surveillance — these are things that have lowered America's standing in the world. If you flout the rule of law, if you sink to a level of legal nihilism, you immediately lose the moral high-ground. You also make more enemies than friends. As we are seeing with US drone strikes in Yemen, where many civilians have been killed by American missiles, the US may only be inspiring a new generation of Jihadists by spreading fear across entire regions of countries while pursuing small handfuls of men who have been deemed a threat through a process that is itself contentious and conceivably highly flawed. Hayden seems convinced that what he presided over at the NSA and CIA was right, just, and absolutley necessary to protect America. But he has not won the argument and I don't think he ever will. He told the audience at one point that they, as Americans, in reference to the CIA, were "blessed as a people with the talent and the morality of the folks who are in your chief espionage service." I couldn't help recall at this point the case of a Muslim cleric known as Abu Omar. He was accused of plotting terrorism and snatched by CIA agents from a street in Milan, Italy in broad daylight on 17 February, 2003. Omar was taken to Egypt where he was imprisoned in Tura, 20 miles south of Cairo, and handed over to Egyptian security services. He said he was twice raped, suffered electroshock treatment and lost the hearing in his left ear due to repeated beatings. He was eventually released by the Egyptian government in 2007, after a state security court ruled that his detention was unfounded. There are many cases similar to this. All of them call into question the morality of those involved, and that includes General Michael Hayden and the staff he commanded.
Tuesday, 4 September 2012
I think that as networking technologies become increasingly powerful and increasingly ubiquitous, their ability to oppress a people also grows. You know, you can't take a utopian view of the Internet and of network technologies. In fact, a government with malignant intent can bend these networks to infiltrate, monitor and manipulate what's happening there, and to surveil its citizens.
This is something that, let me be blunt, it really scares me. I've got a five year old, a seven year old, and a nine year old, and the world that they grow up in is going to be a very different one that the world that I did, in terms of hyper-transparency and in terms of near constant surveillance.
The responsibility of the State Department - there are a couple of things. First of all we restrict the sale of technologies which can be used to oppress people in countries where we have sanctions. In other cases there are export controls, where we can help inform the licensing of certain products and services.
But in your question you made the right point. Certain of the use of these technologies are utterly benign. So the same thing which can be used to inspect a packet to determine whether people are organising a protest can also be used to reasonably filter out spam. So you've got to remember that the very same technologies that can be used for reasonable and benign purposes can also be used for malignant purposes.
[What's an example of one of those technologies that might be restricted?]
There are a variety of different technologies that governments - the Syrian government, the Iranian government, and others - have tried to access, either from the United States or from Europe. The problem is, just to be blunt, there are a lot of vendors out there now. You know, we can restrict the sale of exports from American companies. I'm really glad that the Europeans have joined us in similarly restricting sales of a lot of things from Europe, to certain of these oppressive environments. But then they are able to turn around and buy it from another country.made it into the hands of despots despite US trade embargoes. Several US companies also participate in ISS World, a series of international surveillance industry conferences organised by an American businessman, where governments from all corners of the globe come to purchase the latest spy tools and learn about new surveillance techniques. And the US itself is hardly a surveillance-free zone. Serious questions remain unanswered about a new National Security Agency data centre in Utah which it is alleged will intercept and store "complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital 'pocket litter'." Not to mention the role so-called 'Fusion Centres' play across the US, monitoring 'suspicious activity' and keeping tabs on social networks. I could go on... That said, Alec Ross is one of a tiny handful of political figures who appears to be clued up on the complex issues - political, moral, technological, legal - around surveillance and its rapid, incremental encroachment across the world. You will see few senior political figures in any country talking publicly on this topic as Ross does, and that in itself is worth something. Last year, for instance, I interviewed Jerry Lucas, the American who organises the ISS World surveillance conferences. During the interview, extracts from which were later published in an article for the Guardian, Lucas gave some freakishly blasé responses to my questions about surveillance tools being sold to repressive governments. He was dismissive of human rights concerns, compared mass surveillance tech to "cars and trucks," and said that "you can't stop the flow of surveillance equipment." Shortly after, Alec Ross issued a stern public condemnation of the businessman's comments, telling him he should "be more thoughtful about the consequences of his beliefs. With all due respect, Mr. Lucas, people are tortured + there can be life/death consequences to sales of these products." Of course, actions speak louder than words. More could certainly be done by legislators in the US to crack down on, and hold to account, companies exporting surveillance technology to places where it may be abused. And, as mentioned above, the US has its own serious, unresolved domestic issues regarding surveillance. However, at the very least it is somewhat reassuring to know that there is a senior adviser in the State Dept. who seems to have a grasp on the basic fact that there is a problem. In the UK that is far from the case, which is a cause for considerable concern. I can't name one senior British political figure - or an adviser to a senior figure - who has spoken out about the myriad problems heralded by the booming surveillance industry. Advisers in London could probably learn a thing or two from Ross by trying to engage with the subject in a public forum. But I won't be counting on that happening any time soon.
You know, there are not two or three or four companies out there selling gear. And it's a very remunerative environment. I mean there are countries around the world who are spending billions - tens of billions of dollars – to try to monitor its information environment. Whenever you've got that much money at play, there are going to be people who are trying to make the money. And so this has been a big problem.