Home > Government, Law > Normalizing the National Surveillance State

Normalizing the National Surveillance State

This is a post I started three weeks ago, in the wake of Jane Mayer’s widely discussed New Yorker article on the US Justice Department’s prosecution of Thomas Drake, the former National Security Agency employee accused of disclosing top-secret defense documents. Events have overtaken me, most notably the government’s abandonment of its overblown case and agreement to a plea bargain with Drake.

Mayer’s article is still very much to the point in its depiction of the Obama administration’s over-reach in its zeal to bring whistleblowers to their knees. It’s essential reading. For now, let me settle on making just one point, by quoting from Mayer’s article her own quote of Yale law professor Jack Balkin:

Jack Balkin, a liberal law professor at Yale, agrees that the increase in leak prosecutions is part of a larger transformation. “We are witnessing the bipartisan normalization and legitimization of a national-surveillance state,” he says. In his view, zealous leak prosecutions are consonant with other political shifts since 9/11: the emergence of a vast new security bureaucracy, in which at least two and a half million people hold confidential, secret, or top-secret clearances; huge expenditures on electronic monitoring, along with a reinterpretation of the law in order to sanction it; and corporate partnerships with the government that have transformed the counterterrorism industry into a powerful lobbying force. Obama, Balkin says, has “systematically adopted policies consistent with the second term of the Bush Administration.”

There is little more troubling about the Obama administration than its continuation of Bush’s national security state. At least in the Bush years we could see what he was doing as an aberration and anticipate that his successor would return us to the rule of law. Had McCain been elected and continued these policies, we might still view them as an aberration. But for Obama, who spoke out against these measures as a senator and campaigned against them, to not just continue them but vigorously argue for their necessity indeed enshrines them as bipartisan national policy. (See the cartoon at the top of this post for Tom Tomorrow’s take on this issue.)

Which brings us to Charlie Savage’s front-page article in today’s NYT, whose title speaks for itself: “F.B.I. Agents Get Leeway to Push Privacy Bounds.”

The Federal Bureau of Investigation is giving significant new powers to its roughly 14,000 agents, allowing them more leeway to search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention.

The F.B.I. soon plans to issue a new edition of its manual, called the Domestic Investigations and Operations Guide, according to an official who has worked on the draft document and several others who have been briefed on its contents. The new rules add to several measures taken over the past decade to give agents more latitude as they search for signs of criminal or terrorist activity.


Some of the most notable changes apply to the lowest category of investigations, called an “assessment.” The category, created in December 2008, allows agents to look into people and organizations “proactively” and without firm evidence for suspecting criminal or terrorist activity.

Under current rules, agents must open such an inquiry before they can search for information about a person in a commercial or law enforcement database. Under the new rules, agents will be allowed to search such databases without making a record about their decision.

In other words, the FBI can spy on us for just about any reason, or no reason at all.

I feel safer already.

Categories: Government, Law
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