Tuesday, June 11, 2013

Security Run Amuck

This past week saw the start of the Bradley Manning trial and the release of information regarding NSA surveillance activities within the US by Edward Snowden. 

Private First Class Bradley Manning stationed in Iraq downloaded and released to WikiLeaks 750,000 classified documents: 250,000 of which were US diplomatic cables and the remaining 500,000 were military intelligence reports. Manning apparently was motivated by disturbing reports that he saw such as the July 12, 2007 video of a helicopter strike in Baghdad that killed many including two Reuters news correspondents;  two children were wounded.  Whatever his motivation, indiscriminate release of such a volume of classified data clearly had the potential of endangering the lives of US citizens and those who were assisting the US.  

Issues raised by the Manning case include:

•    How could the US have had such a poor system for maintaining the security of classified information such that a PFC could download 750,000 documents, including a quarter of a million diplomatic cables, without being detected?  While the military does not want to prevent individuals from accessing information that they actually need to perform their function, some level of approval should be needed to access documents that would not be expected to be needed by a given individual.  For example, some justification should be required for a low level intelligence analyst based in Iraq to access the diplomatic cables of the US ambassador to Iceland.  Certainly when an individual begins to download huge volumes of documents a warning flag should go off.  Reportedly more than a million individuals had free access to the materials that Bradley Manning leaked.  Any information that more than a million people have free access to is by definition not secure and one must presume that adversaries of the US have already gained access to it.  A tub with a million faucets will undoubtedly have at least one faucet that leaks. 

•    What consequences have there been for the individuals responsible for the design and maintenance of the US security system that failed in the Bradley Manning case?

•    What steps have been taken to redesign the security system so that similar massive leaks don’t occur again?

•    Why was Bradley Manning subjected to conditions that sound very much like torture during his pre-trial confinement at Quantico (he was sleep deprived, forced to take psychoactive medication and kept naked in his cell)?  Even the judge at his trial considered his treatment so unnecessarily harsh that she reduced whatever sentence he eventually receives by 112 days in compensation.

This past week Edward Snowden, a 29 year old technical contractor for the NSA leaked documents to reporters and had a televised interview.  He revealed that the US recorded essentially all domestic telephone logs and internet communications including email.  Unlike Manning, Snowden apparently did not release specific information regarding individuals but only the existence of systems that record this information.  James Clapper, Director of National Intelligence in response released a statement confirming many aspects of what Snowden said, but stated that use of the information is under strict supervision of a secret court. 

Snowden went on to say that he and many others could read the electronic communications of virtually anyone in the US and many abroad without any further clearance.  He also stated that he had access to the identities of undercover intelligence stations and agents around the globe.

Some issues raised by the Snowden episode:

•    If his claims are true, how could a young technical contractor have such broad access to US secret information and systems? 

•    Is the US entitled to record all of US citizens private electronic communications and telephone logs (one might further assume that the US has the technical means of recording the actual telephone conversations as well as the logs) even if the US claims that the information is only accessed on secret court order?  The Fourth Amendment to the US Constitution reads:

“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.”

It seems pretty clear that the US is authorized to search and seize our private information only upon receiving a warrant based upon specific probable cause.  Wholesale recording of private information appears to be clearly unconstitutional.

•    Is it illegal to disclose classified illegal government activities?  Is there a proper and effective forum for reporting illegal but classified government activities?

•    Why has the Supreme Court blocked challenges to potentially unconstitutional government practices such as governmental electronic surveillance of US citizens and the White House’s Office of Faith Based Initiatives (which raises issues of separation of church and state) based on the doctrine of “standing”.  The court does not allow a challenge to go forward unless a citizen can prove he/she was individually damaged. Government use of one's tax money to support an illegal activity is not considered sufficient damage to merit "standing".  Is there no means by which a citizen can challenge unconstitutional or illegal government activity?
At times of mass panic and fear, the governmental reaction is often to abridge civil rights.  During World War II fear of Japan led the US to imprison its Japanese population.  After World War II fear of the Soviet Union led to Senator Joseph McCarthy’s national witch hunt for communists.  The aftermath of the tragic terrorist events of September 11, 2001 have led to unprecedented domestic surveillance activities by the US government. 

True there is a balance to be had between security and civil liberties, but have we strayed too far when the government records everyone’s electronic communications? 

Since 1970 there have been approximately 3,500 deaths from terrorism in the US.  During the same time there have been well over a million deaths from guns.  Yet we do not impose even the mildest restrictions on guns and gun ownership, but we completely shred our Fourth Amendment rights because of our fear of terrorism.

The government has not produced evidence on how effective the massive surveillance effort is in preventing terrorism.  Conversely, we do know that the father of Underwear Bomber, Umar Farouk Abdulmutallab, notified the CIA that his son may be a terrorist but that warning did not result in Umar being prevented from boarding a plane to the US with explosives hidden in his underwear.  The Russians Federal Security Service contacted the FBI regarding their concerns about Tamerlan Tsarnaev's embrace of radical Islam, but that did not result in his being prevented from carrying out the Boston Marathon bombing earlier this year.  So even when the government is handed a direct warning, the government may not be able to act effectively on that information. 

Are US citizens prepared to live their entire lives being guarded in all their communications because they know that Big Brother is listening?  We fight in wars to preserve our freedoms; will we sacrifice them at home to provide the undefined extra measure of security resulting from absolute governmental surveillance?  Will we test the Constitutionality of such surveillance?

We may recall the words of Benjamin Franklin, "Any society that would give up a little liberty to gain a little security will deserve neither and lose both."

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