Speaking Against a Domestic Enemy

The Republican National Committee passed a resolution Friday demanding an investigation into what it called the “gross infringement” of Americans’ civil rights by the National Security Agency. The resolution states that “the mass collection and retention of personal data [by the NSA] is in itself contrary to the right of privacy protected by the Forth Amendment of the United States Constitution”. 

I agree, wholeheartedly, and my doing so publicly will likely bring an end to my career as a government contractor.

I have held a security clearance for most of my adult life. First, as a Naval officer, I was an assault element commander at SEAL Team Six. After I left the service, I worked as a counter-terrorism analyst and was the principal author of the Weapons of Mass Destruction Annex to the National Counter-Terrorism Plan. As a contractor, I have worked for the Department of Defense, the FBI, and the CIA. I am well acquainted with the technical capabilities of these agencies and understood the purpose and function of the Foreign Intelligence Surveillance Courts, which oversee surveillance warrants against terrorists and suspected intelligence agents inside the United States.

I had been assured, and had assumed like most Americans, that the FISA courts doled out permissions to collect data on American citizens after careful consideration of individual cases. The revelations of Edward Snowden have disabused me of these old fashioned notions.

I could hardly have been called naive. I knew that all electronic communications were open to compromise, and that the radio, telephone, and internet communications of foreign powers were intercepted wholesale by the NSA and other intelligence agencies. The threats of the twenty-first century are multifaceted and originate from nation states, terrorist organizations, and deranged individuals. It is necessary for America to have a robust intelligence capability. What has shocked and disappointed me was that the NSA has used its post-9/11 mandate not only to target specific threats but to embark on a colossal domestic spying operation. The NSA’s Prism, XKeyscore, and other programs are presently amassing data on every American’s email and phone calls. Some may quibble with my estimation of the extent of the NSA’s capabilities, but I have seen the raw intelligence product with my own eyes. It might well be called omnipresent.

What does it matter that government can access email and phone data? If one has nothing to hide, what is the problem? The Bill of Rights expressly prohibits blanket searches by law enforcement and affirms the rights of individual citizens to privacy: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated…” Further, the amendment is explicit about when and how searches may be conducted: “…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.” Clearly, what the NSA blithely calls “bulk collection”–the warrantless interception and data mining of emails and phone calls–is unconstitutional and unlawful.

I was a cadet in military school when the furor of the Pentagon Papers convulsed the administration of Richard Nixon. Daniel Ellsberg, like Edward Snowden, was a civilian contractor who used his government security clearance to gather classified information. Ellsberg’s Pentagon Papers revealed that as early as 1965 the Defense Department realized that the war in Vietnam was probably unwinnable. The Johnston and Nixon administration had continued to pour in troops, and present positive, even upbeat assessments of American intervention. Daniel Ellsberg acted out of a conviction that the war was wrong and continuing it was not in the best interests of the nation he loved. Ellsberg further ennobled himself by surrendering to federal authorities, saying, “I did this clearly at my own jeopardy and I am prepared to answer to all the consequences of this decision.” In 1973, all charges against Ellsberg were dismissed after it was revealed that the FBI had placed warrantless phone taps on Ellsberg and conducted an illegal break-in to search the offices of his psychiatrist.

The case of Edward Snowden is more nuanced. Snowden’s betrayal has indubitably damaged American intelligence gathering capabilities but has revealed another unpleasant truth–that the NSA has vastly, and even dangerously overreached it mandate. Had Snowden remained in the United States to face the consequences of his actions, he, like Daniel Ellsberg, might have eventually been hailed a hero. Snowden’s skulking flight from Hong Kong to Moscow was facilitated by Vladimir Putin’s intelligence service, the FSB. And his recent statement, indicating that he will likely remain in Russia, greatly diminishes whatever patriotic impulse Snowden might claim as motive. Putting aside Snowden’s reasons–and his character–the NSA disclosures have revealed a vast and unlawful intelligence gathering apparatus that is directed against the American people. Hero or traitor, Snowden, like Daniel Ellsberg, has revealed an inconvenient truth.

Can’t the NSA be trusted to use the information it gathers responsibly? It might, but it seems unlikely given the mendacious, evasive answers it has given to describe its various and all-encompassing programs. When Senator Ron Wyden (D, Oregon) asked James Clapper, Director of National Intelligence, if the NSA collected any type of data “at all” on “millions, or hundreds of millions of Americans”, Clapper answered unambiguously, “No Sir.” Clapper then glibly qualified his answer by adding, “Not wittingly…” 

Clapper has since walked back his testimony, saying he replied in, “…what I thought was the most truthful, or least untruthful manner,” adding that he also considered his answer to be “too cute by half.”

It is chilling to realize that by saying “not wittingly” Clapper leaves the impression that the NSA automatically gathers phone metadata. Is that, in itself, intrusive? Metadata is the record of who one calls, when they call, and where an individual was located when these calls were placed. In addition, to who called whom, the agency daily intercepts hundreds of thousands of address books from email and instant messaging accounts.

Nor is it reassuring that NSA’s own leadership has played fast and loose with the facts. The administration’s credibility was further denigrated when General Keith Alexander, the serving NSA director, admitted that his spokesmen put out numbers that vastly overstated the counterterrorism successes of the government’s warrantless bulk collection of all Americans’ phone records. Pressed in a congressional hearing, General Alexander downgraded the number of terrorist attacks his agency had thwarted from fifty-four to two. Called into question is not only the legality of NSA’s bulk collection of American phone data but also it’s efficacy.

All Americans have reason be jealous of their constitutional rights, perhaps never more than in the present climate of government, where an almost Nixonian obsession with secrecy has led to the interception of journalist’s phone calls and emails and the IRS has been used to scrutinize political organizations and nonprofits.

I was a third generation Naval Officer; my grandfather was an intelligence officer in the Pacific during World War two, my father served seven tours in Vietnam. During the 1980s, my own career involved me in the wars in Central America, and later I chased terrorists and hijackers around the globe as member of SEAL Team Six. My family has served the nation and has kept its secrets. Coming forward to denounce the NSA’s domestic operations was not an easy thing for me to do. I have the utmost respect for the men and women who serve there and a great appreciation for the daunting task they face. But I object, vehemently, to their methods.

The men and women who actively serve in our armed forces, intelligence agencies, and federal law enforcement are not at liberty to comment publicly on operations or matters of policy. That does not mean they do not have opinions or understand the rights granted to them by our Constitution. For the more than twenty years of my own government service, and much of the time after, I have kept my peace, though I have become increasingly concerned, disappointed, and finally outraged to learn that the American people are being scrutinized with the same lens that hunts out terrorists and spies. 

I do not presume to speak for all of the men and women in the intelligence and armed services. But I can say that there are many among my colleagues who are profoundly disappointed, and even angry, at what they recognize as the violation of their civil liberties. None can come forward or speak out without jeopardizing their careers, professions, livelihood, and pensions. After weighing the consequences and my own circumstances, I have decided that I can and must speak out.

When I entered the service, I swore an oath to support and defend the Constitution of the United States against all enemies, foreign and domestic–the same oath that it is taken by the men and women who serve at the NSA. No agency is above the law. Hoover’s FBI ran roughshod over the Constitution, conducting unlawful break-ins and wire taps. It was brought to heel and then thoroughly reformed. Likewise, when the Church Committee of the 1970s revealed that the CIA was engaging in unlawful activities, that agency, too, was transformed. Now it is the NSA’s turn to restructure. Its capabilities have far outstripped the judgment of the men who control it.