“United States of Secrets (Part One): The Program” - Michael Kirk (2014)

The US government’s current massive collection and monitoring of everyone’s communications, first revealed by whistle-blower Edward Snowden in June 2013,  is the subject of the fascinating two-part documentary, United States of Secrets.  Produced as part of the US Public Broadcasting Service‘s Frontline program and aired in May 2014,  the two parts are really two separate films:
They look behind the scenes at how the US government engages in massive, indiscriminate surveillance and how it has tried to suppress information from coming out about these activities.  The review presented here covers the first of the above two films, which specifically concerns the super-secret surveillance project that was known inside the US National Security Administration (NSA) as “The Program”.

As I have described earlier, there are at least three different and equally important angles from which we can view the amazing revelations of Edward Snowden:

  1. One angle is the story of how the lone 29-year-old Ed Snowden (a) managed to make a large number of secret documents about the NSA’s unlawful surveillance activities available to journalists (so that significant portions of these documents could be made available to the wider public) and (b) how Snowden managed to escape capture from his vindictive US government pursuers.  This is Snowden’s story, and it is well-covered in two recent documentary films: Citizenfour (2014), directed by Laura Poitras, and Terminal F/Chasing Edward Snowden (2015), directed by John Goetz and Poul-Erik Heilbuth.
  2. Another angle of the story concerns the very nature of mass surveillance and how massive collections and correlations of communication content and metadata pose a threat to privacy and the proper functioning of a free society.  This is briefly covered in all the films I have mentioned so far, but the interested reader might also wish to consult Bruce Schneier’s book, Data and Goliath, for more detailed discussion [1].
  3. A third angle on this overall theme concerns the efforts on the part of intelligence operatives and senior officials inside the US government to subvert legal safeguards in order to install what were essentially illegal surveillance activities.  This is what is primarily covered in the film under discussion here: United States of Secrets (Part One): The Program.
In order to appreciate this latter film, though, one needs to have some acquaintance with the tripartite structure of the US government.  The founders of the US republic who framed the US Constitution were inspired by 18th century French legal scholar Montesquieu to establish three quasi-independent branches of the new American government:
  • Legislative.  This is a parliamentary body of democratically elected representatives that establishes the laws of the country, allocates how taxed money is spent, and has the exclusive power of declaring war.
  • Executive.  This is headed by the President,  and it executes the laws that have been created by the Legislature.  The Executive branch essentially carries out the day-to-day administration of the government, including the operation of the military.  It can also prosecute law violators (through its Department of Justice) and establish foreign treaties (through its State Department).
  • Judicial. This branch interprets and adjudicates the degree to which the laws are in conformance with the Constitution. 
This structure is set up so that there are “checks and balances” across the three branches – each branch has some authority over the other two branches:
  • The Executive branch may veto laws.  It also appoints the justices of the Supreme Court (of the Judicial branch).
  • The Legislative branch may override Executive vetoes, may impeach the president, and must approve treaties and presidential appointments.
  • The Judicial branch can judge both laws created by the Legislative branch and actions undertaken by the Executive branch to be in violation of the Constitution (and hence unlawful).
So even though the US President has enormous powers, he or she must act in conformance with the oversight of the other two branches.  This is where United States of Secrets (Part One): The Program is interesting (although some of the subtleties of the US government’s tripartite checks and balances may be lost on some viewers).  Essentially, this film reveals how  two US presidents (George W. Bush and Barack Obama) tried to install activities that were seen by some people in the government to be in violation of US laws.  In particular, such actions were seen to be in violation of the 4th Amendment to the US Constitution (part of the Bill of Rights that dates back to 1791), which reads [2]:
“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.”
In other words, it is illegal to conduct massive, indiscriminate surveillance. The government must secure specific warrants from the Judicial branch to carry out surveillance.  This Constitutional provision has been significantly modified by the Foreign Intelligence Surveillance Act of 1978 (FISA), which was an attempt to provide more Judicial and Congressional oversight of the Executive branch’s covert surveillance activities after US administrative government excesses during the Nixon administration came to light.  Since the 911 events, the FISA act, itself, has been modified several times.  An important  mechanism created by the FISA act is the Foreign Intelligence Surveillance Court (FISC), which hears evidence provided in secret by the Executive branch’s Department of Justice requesting FBI surveillance authorization.  The judges of the FISC are appointed by the Judicial branch (the US Chief Justice).  However, there is no adversarial debate before the FISC justice, so how can a balanced judgement be rendered [3]?  All in all, the FISA Court strikes me as a legal artifice to get around true Judicial oversight of the Executive branch.

The film as presented is largely a textual narrative account that is told by some of the key participants, both significant insiders and reporters.  Among the government operatives who are given ample testimonial opportunities are
  • Alberto Gonzales, a former Attorney General;
  • Michael Hayden, a former director of both the NSA and the CIA;
  • NSA security specialists William Binney, Thomas Drake, Edward Loomis, and Kirk Wiebe, all of whom came to doubt the legality of what their own organization was doing,
  • Administrative lawyers Jack Goldsmith and Thomas Mann;
  • Diane Roark, a Congressional attorney in charge of oversight of the NSA
Key reporters involved in getting the original story out and who testify here include
  • Barton Gellman of The Washington Post
  • Glenn Greenwald, Ewen MacAskill, and Luke Harding of The Guardian
  • Jane Mayer of The New Yorker
  • Siobhan Gorman of The Baltimore Sun
  • James Risen, Eric Lichtblau, and Bill Keller of The New York Times
  • Interestingly, documentary filmmaker Laura Poitras, who was a key figure in the original interactions with Snowden, is not shown in the United States of Secrets films, nor did she appear in Terminal F.  This seems to be in keeping with Poitras’s cinema verite aesthetics, according to which the reporter’s subjective persona is removed so that the objective reality of what is portrayed can come forth.
All this textual testimony is artfully mixed with evocative imagery in order to lessen the repetitiveness of a “talking head” presentation.

The story of United States of Secrets (Part One): The Program has four threads to it as it gives an account of NSA surveillance overreach.

1.  The Outer Story – Edward Snowden’s Revelations
The film’s first ten minutes or so detail how, starting in December 2012, NSA security contractor Ed Snowden initially contacted Glenn Greenwald, and then Laura Poitras and Barton Gellman in his hopes of secretly leaking the NSA’s wrongdoings. Poitras, Greenwald, and MacAskill went ahead and secretly met with Snowden in Hong Kong in June 2013; and the big news story came out.

The rest of the film is essentially a flashback account of the events that led up to Snowden’s revelations.

2.  Concern Inside the NSA
A signal event, of course, was what happened on September 11, 2001 (911), which sent the US intelligence community into a state of shock.  Veteran NSA cryptologists Binney, Loomis, and Wiebe felt that an existing NSA program that they had worked on known as ThinThread could have been used to gather foreign intelligence that might have helped to head off the 911 attacks.  ThinThread had built-in anonymizing provisions that protected privacy, so they felt it adhered to US laws.  Shortly after 911, though, they learned that a new NSA project had been launched, which they were not a part of, that was variously called “Stellar Wind” and “The Program”.  This new program used ThinThread at its core  – but with its privacy protections stripped out.  When their internal protests were ignored, they all resigned from the NSA in October 2001.

William Binney approached Congressional attorney Diane Roark about “The Program”, and she was appalled by what she heard.  Roark goes in protest to Michael Hayden, who assures her that “The Program” is legal because it has been authorized by Presidential fiat.  Legislative oversight of the Executive branch was dismissed out of hand.

Another key figure, Thomas Drake, was a newer NSA employee who came on the scene just after 911.  He was also upset when he learned about “The Program”, but he was rebuffed when he expressed his concerns. When he writes a letter to NSA director Keith Alexander about it, he finds himself stripped of his authority and left as just a placeholder. 

3. Concern Inside the Department of Justice
Meanwhile there are people inside the Department of Justice (DOJ) worried about the legality of “The Program”.  Although they and other legal professionals work inside the Executive branch, they are specialists in defending the legality of Executive branch activities.  Here the story casts its focus on Thomas Tamm, who was working with the FISA court, and his discovery that “The Program” was spying without first securing FISA warrants.

Also James Comey, who was working as a key assistant to Attorney General John Ashcroft, came to believe that “The Program’s” activities were illegal.  Comey, and then Ashcroft, refused to give their DOJ authorization for continuance of “The Program”.  So Vice President Dick Cheney then convinced President George W. Bush to simply authorize “The Program” without DOJ approval.  Bush even went on TV and misrepresented its activities, assuring the public that the government always gets warrants before spying.  When this happened, many top-level DOJ staff members threatened to resign (including Goldsmith and Comey).  To head off a pubic-relations disaster, Michael Hayden managed to talk a FISA justice into giving her authorization to “The Program”.

Thomas Tamm meanwhile anonymously contacts The New York Times about what is going on.   When The New York Times warns the government that they are about to publish on this issue, Bush and Hayden summon publisher Arthur Sulzberger and executive editor Bill Keller and threaten them.  They cave in and withdraw the story [4].

However, New York Times journalist James Risen decides to go ahead and publish what he knows independently in a book.  So, after a lengthy delay, the waffling New York Times does go ahead and publish some revelatory material authored by Risen and Lichtblau.  Again there is a public uproar, and George Bush goes on TV and admits that “The Program” exists and that it is needed.  But he still effectively misrepresented what was going on by making no reference to “The Program’s” mass, indiscriminate collection of domestic data.

About this time Thomas Drake leaked some unclassified information to the Baltimore Sun.  So Dick Cheney finally ordered the FBI to crack down on suspected leakers.  In 2007 the FBI, with guns menacingly drawn, conducted early morning raids on the homes of Binney, Wiebe, Loomis, and even Diane Roark.  They confiscated their computers and personal documents. 

Shortly thereafter Drake wass also raided by a dozen FBI agents.  Although they could not prove that he leaked any classified material, they ded find a classified document on his computer and proceedws to charge with him a felony under the Espionage Act with a potential jail term of 35 years [5]. 

4.  The Continuation Under Obama
The election of Barack Obama in 2008 gives the ThinThread team (Binney, Wiebe, Loomis, Roark, and Drake) some hope.  But, disturbingly, even before the Presidential election, Senator Obama chose to vote for alterations to the FISA law authorizing additional government surveillance powers.  And once in office, Obama’s legal team, led by Eric Holder, investigated those earlier punitive FBI leak-snuffing investigations, but has done nothing to stop the prosecutions.

It is later discovered that the document found on Drake’s computer was classified secret only after the FBI raided his home.  This idea of arresting a person first and then looking around for a reason to place criminal charges is something we hear about in autocracies like China [6] and Iran, but not commonly in countries that are supposed to recognize freedom or privacy.  The government’s case against Drake eventually fell apart (but only after the three-year legal ordeal  damaged Drake’s personal life and left him impoverished).  After all this he is eventually ruled only to pay a $25 fine and perform a year of community service.

Unfortunately, encouraging people to be afraid of potential terrorist acts so that they will endorse punitive wars and acquiesce to the diminution of their rights seems to be the favored political tactic these days [7].  An apocalypse is always claimed to be just around the corner, and the "Commander-in-Chief", leading the Executive branch, increasingly claims unrestricted powers to invade your privacy in order to "protect the American people".  And in support of this trend, almost everyone seems to concede that there must be a strict tradeoff between liberty and security.  The more you have of one, they say, the less you can have of the other.  But such a claim is not always borne out by the facts.  Consider the fact that China, Russia, and Iran are all autocracies with severe limitations on personal freedom and privacy – and they are all still frequently beset with terrorist acts.

Meanwhile “The Program” continues to grow, and the "checks and balances" continue to shrink.  It doesn’t have to be that way, but United States of Secrets (Part One): The Program shows how we are allowing it to go on.

  1. Bruce Schneier, Data and Goliath, (2015), W. W. Norton & Company.
  2. The U.S. Constitution.
  3. Stepen Braun, "Former Judge Admits Flaws in Secret Court", Yahoo News, (9 July 2013).
  4. Edward Snowden was allegedly mistrustful of The New York Times; and given Bill Keller’s past support of US military intervention, it is not surprising that Snowden passed over Keller’s paper and chose The Guardian and The Washington Post to be his conduits to the public.
  5. Jane Mayer, “The Secret Sharer”, The New Yorker, (23 May 2011).
  6. Perry Link, “China: Inventing a Crime”, The New York Review of Books, (9 February 2015).
  7. Glenn Greenwald, “For Terrorist Fearmongers, It’s Always the Scariest Time Ever”, The Intercept, (2 June 2015).

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