John W. Whitehead, Constitutional Attorney

For more on this and other issues, check out John Whitehead’s new book, A Government of Wolves: The Emerging American Police State.

Time and again, throughout America’s history, individuals with a passion for truth and a commitment to justice have opted to defy the unjust laws and practices of the American government in order to speak up against slavery, segregation, discrimination, war and government corruption. Even when their personal safety and freedom were on the line, these individuals spoke up, knowing they would be chastised, ridiculed, arrested, branded traitors and even killed.

Thanks to the U.S. government’s growing intolerance for dissidents, whistleblowers and journalists who insist on transparency and accountability, who oppose its endless wars, targeted killings, warrantless surveillance, corrupt practices, and who demand that government officials abide by the rule of law, that list of so-called “enemies of the state” who will find themselves targeted for censure and prosecution is growing.

Yet as veteran journalist Walter Lippmann once declared, “There can be no higher law in journalism than to tell the truth and to shame the devil.”

Frankly, we should all be doing our part to shame this particular devil.

“If, as it seems, we are in the process of becoming a totalitarian society in which the state apparatus is all-powerful, the ethics most important for the survival of the true, free, human individual would be: cheat, lie, evade, fake it, be elsewhere, forge documents, build improved electronic gadgets in your garage that’ll outwit the gadgets used by the authorities.” – Philip K. Dick, author of Minority Report[1]

On any given day, the average American going about his daily business will be monitored, surveilled, spied on and tracked in more than 20 different ways, by both government and corporate eyes and ears.[2]

A byproduct of this new age in which we live, whether you’re walking through a store, driving your car, checking email, or talking to friends and family on the phone, you can be sure that some government agency, whether the NSA or some other entity, is listening in and tracking your behavior. As I point out in my new book, A Government of Wolves: The Emerging American Police State, this doesn’t even begin to touch on the corporate trackers that monitor your purchases, web browsing, Facebook posts and other activities taking place in the cyber sphere.

The revelations by Edward Snowden only scrape the surface in revealing the lengths to which government agencies and their corporate allies will go to conduct mass surveillance on all communications and transactions within the United States.

Erected in secret, without any public input, these surveillance programs amount to an electronic concentration camp which houses every single person in the United States today. Indeed, government whistleblower Russ Tice, who exposed the NSA’s warrantless surveillance of American phone calls as far back as 2005, insists that despite Obama administration claims that the NSA is simply collecting metadata, the NSA is in fact retrieving “the contents of emails, text messages, Skype communications, and phone calls, as well as financial information, health records, legal documents, and travel documents.”[3]

These communications are being stored in the NSA’s Utah Data Center, a massive $2 billion facility that will be handling yottabytes of data (equivalent to one septillion bytes—imagine a one followed by 24 zeroes) on American communications.[4] This Utah facility is opening amidst a backlash against NSA surveillance. Most recently, the Obama administration and the NSA went into overdrive to quash an amendment sponsored by Justin Amash (R-Mich.) that would have cut off funds to the NSA if it collects surveillance data on American citizens who are not under criminal investigation.[5] It was a bold move, especially when one considers that the NSA operates off a budget of approximately $10 billion. After all, when the government no longer listens to the citizenry—when it no longer abides by the Constitution, which is our rule of law—and when it views the citizenry as a source of funding and little else, we have no choice but to speak to the government in a language it understands—money.

Unfortunately, lobbyists and the Washington elite succeeded in defeating the amendment 217-205.[6] Not surprisingly, many of those who voted down the bill were also recipients of campaign funds from the lucrative security/surveillance sector.

In the face of such powerful lobbyists working in tandem with our so-called representatives, any hope of holding onto even a shred of privacy is rapidly dwindling. Indeed, the life of the average American is an open book for government agents. As Senator Ron Wyden, a longtime critic of the American surveillance state, points out, government agencies operate based upon a secret interpretation of the Patriot Act which allows them to extract massive amounts of data from third party agencies, enabling them to collect information on “bulk medical, financial, credit card and gun-ownership records or lists of ‘readers of books and magazines deemed subversive.’”[7]

Cell phones are equally vulnerable, serving as a “combination phone bug, listening device, location tracker and hidden camera.”[8] Indeed, it’s incredibly easy to activate a cell phone’s GPS and microphone capabilities remotely. For example, the FBI uses the “roving bug” technique, which allows agents to remotely activate the microphone on a cellphone and use it as a listening device. A federal judge actually ruled in 2006 that this was a constitutional technique when it was used to listen to two alleged mobsters, despite the fact that no phone call was taking place at the time.[9]

With private corporations also taking advantage of this technology, the outlook is decidedly grim. In an attempt to mimic the tracking capabilities of online retailers, brick-and-mortar stores now utilize WIFI-enabled devices to track the movements of their customers by tracking their phones as they move throughout the store. The data gathered by these devices include “‘capture rate’ (how successful window displays are at pulling people into the store); number of customers inside the store; customer visit duration and frequency; customer location within the store; people who walk by the store without coming in; and the amount of foot traffic around the store.”[10]

Combined with facial recognition technology, our cell phones have become a tell-all about our personal lives. For example, one Russian marking company, Synqera, “uses facial recognition technology to tailor marketing messages to customers according to their gender, age, and mood.” As one company representative noted, “if you are an angry man of 30, and it is Friday evening, [the Synqera software] may offer you a bottle of whiskey.”[11]

Americans cannot even drive their cars without being enmeshed in this web of surveillance. As confirmed by an ACLU report entitled, “You Are Being Tracked: How License Plate Readers Are Being Used to Record Americans’ Movements,” the latest developments in license plate readers enable law enforcement and private agencies to track the whereabouts of vehicles, and their occupants, all across the country.

License plate readers work by recognizing a passing license plate, photographing it, and running the information against a pre-determined database that lets police know if they’ve got a “hit,” a person of interest, though not necessarily a suspected criminal. There are reportedly tens of thousands of these license plate readers now affixed to police cars and underpasses in operation throughout the country. The data collected from these devices is also being shared between police agencies, as well as with fusion centers and private companies.[12]

Indeed, while all drivers’ data is being collected, only a fraction of the data collected constitutes a “hit.” An even smaller fraction of those “hits” actually result in an arrest.[13] Overall, the hit rate for criminal activity gleaned from the license pictures is usually between .01% and .3%, meaning that over 99% of the people being unnecessarily surveilled are entirely innocent.[14]

The implications for privacy are dire. All of the data points collected by license plate readers can be traced and mapped so that a picture of a vehicle’s past movements can be re-constructed.[15] Furthermore, the photographs produced by license plate readers “sometimes include a substantial part of a vehicle, its occupants, and its immediate vicinity.”[16]

In addition to tracking tens of thousands of innocent people, the data collected by license plate readers is often kept far beyond any reasonable period of time. Data retention policies vary widely, from the Ohio State Highway Patrol, which deletes non-hits immediately, versus some localities which hold on to data for weeks, months, or years. Some localities hold on to the information indefinitely. [17]

To cap it off, private companies are also getting into the data collection game, as data collected on innocent drivers is being shared between both government agencies and corporations. One such business, Final Notice, offers the information they gather to police agencies and intends to start selling the information to other groups soon, including bail bondsmen, private investigators, and insurers.[18]

Another company, MVTrac, claims to have data on “a large majority” of vehicles in the US, and the Digital Recognition Network (DRN) claims to have a network of affiliates of more than 550. These affiliates feed over 50 million plate reads into a national database containing “over 700 million data points on where American drivers have been.”[19]

This is the United States of America today, where liberty and privacy are the currency for any and all essential services. Short of living in a cave, cut off from all communications and commerce, anyone living in the concentration camp that is America today must cede his privacy and liberty to a government agency, a corporation, or both, in order to access information via the internet, communicate with friends and family, shop for food and clothing, or travel to work.

We have just about reached the point of no return. “If we do not seize this unique moment in our constitutional history to reform our surveillance laws and practices, we are all going to live to regret it,” warned Senator Wyden. “The combination of increasingly advanced technology with a breakdown in the checks and balances that limit government action could lead us to a surveillance state that cannot be reversed.”[20] — John W. Whitehead

Thomas Jefferson repeatedly warned Americans to prevent government officials from doing mischief by binding them down with the chains of the Constitution. However, when the government no longer listens to the citizenry—when it no longer abides by the Constitution, which is our rule of law—and when it views the citizenry as a source of funding and little else, we have no choice but to speak to the  government in a language it understands—money.

This is what the Amash Amendment is attempting to do by cutting off funds to the NSA if it collects surveillance data on American citizens who are not under criminal investigation. It’s a bold move, especially when one considers that the NSA operates off a budget of approximately $10 billion, and it may do more to hold this rogue agency accountable than any lawsuit, whistleblower or outrage on the part of the American people.

Little surprise, then, that the White House is doing everything in its power to quash this amendment.

—Constitutional attorney John W. Whitehead, author of A Government of Wolves: The Emerging American Police State

In a bizarre and ludicrous attempt at ‘transparency,’ the Obama administration has announced that it asked a secret court to approve a secret order to allow the government to keep spying on millions of Americans, and the secret court has granted its request. This is the bizarre logic which now defines American governance: it doesn’t matter if we spy on you without your consent, so long as you know that we’re doing it, and so long as we give the impression that there is a process by which a court reviews the order.

“Logic may indeed be unshakeable, but it cannot withstand a man who is determined to live. Where was the judge he had never seen? Where was the High Court he had never reached? He raised his hands and spread out all his fingers. But the hands of one of the men closed round his throat, just as the other drove the knife deep into his heart and turned it twice.” – Franz Kafka, The Trial

In a bizarre and ludicrous attempt at “transparency,” the Obama administration has announced that it asked a secret court to approve a secret order to allow the government to keep spying on millions of Americans, and the secret court has granted its request.

Late on Friday, July 19, 2013, the Foreign Intelligence Surveillance Court (FISC)—a secret court which operates out of an undisclosed federal building in Washington, DC—quietly renewed an order from the National Security Agency to have Verizon Communications hand over hundreds of millions of Americans’ telephone records to government officials. In so doing, the government has doubled down on the numerous spying programs currently aimed at the American people, some of which were exposed by whistleblower Edward Snowden, who temporarily pulled back the veil on the government’s gigantic spying apparatus.

As a sign of just how disconnected and out-of-touch with reality those in the Beltway are, National Intelligence Director James Clapper actually suggested that declassifying and publicly disclosing the government application was a show of good faith by the government. The order, submitted by the federal government and approved by the FISC, is set to expire every three months and is re-approved without fail. This is the bizarre logic which now defines American governance: it doesn’t matter if we spy on you without your consent, so long as you know that we’re doing it, and so long as we give the impression that there is a process by which a court reviews the order.

Ironically, the seeds for this brave new world were planted in an attempt to reform the ludicrous mantra of the Nixon administration that “if the president does it, it’s not illegal.” In the aftermath of the Watergate incident, the Senate held meetings under the Church Committee in order to determine exactly what sorts of illicit activities the American intelligence apparatus was engaged in under the direction of Nixon, and how future violations of the law could be stopped. The result was the passage of the Foreign Intelligence Surveillance Acts (FISA), and the creation of the FISC, which was supposed to oversee and correct how intelligence information is collated.

Fast forward to the present day, and what we see is that the alleged solution to the problem of government entities engaging in unjustified and illegal surveillance has instead become the main perpetrator of such activities.

When FISA was passed in 1978, it provided for a court of seven federal judges from seven different federal circuits who would serve for seven years. The judges on the FISC are appointed by the Chief Justice of the Supreme Court and may only serve once. The USA PATRIOT Act, however, increased the number of judges to 11, and altered the standards under which the government could engage in surveillance.

Thus, what was ostensibly designed as a mechanism to protect the American people from unwarranted government surveillance became instead a bureaucratic mechanism to rubber stamp government applications for surveillance. Indeed, the Court is structured such that applications for surveillance are rarely ever denied.

If a judge were to reject an application, for example, that judge would have to immediately write a report detailing every reason for the rejection, then transmit the report to a 3-person court of review. If that court finds that the application was properly denied, it must also write a report, which is then subject to a writ of certiorari by the Supreme Court. However, no reviews are necessary if an application is granted. This bias towards approving applications has played out predictably over the history of the court: out of 33,949 total applications, only 11 have been denied. Out of those 11, at least four were granted partial warrants later.

Deference to government requests for surveillance has only been exacerbated since 9/11. Before the PATRIOT Act was passed, collection of foreign intelligence information had to be the sole or primary purpose of the surveillance. However, after the PATRIOT Act, collecting foreign intelligence information merely had to be a “significant” part of the surveillance. The PATRIOT Act also allowed for a “roving wiretap,” which meant that government agents no longer had to designate a particular number or line to be bugged. This has led to the government forcing telephone and internet providers – some willingly and some not so willingly – to hand over vast troves of information on American communications.

Unnamed officials familiar with the inner workings of the FISC have noted that the Court’s mission has vastly expanded in the past few years, from simply granting warrants for surveillance to settling constitutional questions about surveillance in classified decisions, some almost one hundred pages long. For example, the FISC has gone so far as to determine that the Fourth Amendment requirement for a search warrant does not apply when it comes to the NSA collecting and analyzing data of Americans’ communications.

To make matters worse, the only party represented before the Court is the government, and the Court’s decisions are rarely made public. It’s unclear if the corporations which are readily sharing Americans’ communications data are even authorized to appear before the court. Appeals are rare, and none has ever made it to the US Supreme Court. Furthermore, customers of the big telecoms whose data is being collected by the federal government do not have standing to challenge FISC rulings.

In truth, the FISC has basically become a parallel Supreme Court, but one which operates in almost total secrecy. As the editorial board of the New York Times has pointed out, even if the Court is operating completely within the bounds of established law when approving hundreds of requests for surveillance each year, “the public will never know because no one was allowed to make a counterargument.”

The biases of the Court are exacerbated by the fact that since judges only serve seven-year terms, they are usually all chosen by the same Chief Justice of the U.S. Supreme Court. Currently, every single FISC judge has been appointed by Chief Justice Roberts. Furthermore, all but one are Republicans. Roberts also appointed all three members of the Court of Review, which hears appeals to FISC decisions. Thus, the Electronic Privacy Information Center’s (EPIC) emergency appeal to the U.S. Supreme Court to end the NSA surveillance program is likely to fall on deaf ears.

Justice James Robertson, who served on the FISC from 2002 to 2005, has strongly condemned the power of the Court, claiming that it has become an “administrative agency, which makes and approves rules for others to follow. That’s not the bailiwick of judges. Judges don’t make policy.” Yet in the bizarre bureaucratic nightmare we have created for ourselves, that is exactly what they do.

The runaround and circular logic of the courts, Congress, the intelligence agencies, and the White House calls to mind Franz Kafka’s various depictions of bureaucracy gone mad, which have colored our civilization’s understanding of the shortcomings of a government which is only accountable to itself. As Bertolt Brecht wrote, “Kafka described with wonderful imaginative power the future concentration camps, the future instability of the law, the future absolutism of the stateApparat.”

One of Kafka’s most famous novels, The Trial, tells the story of Josef K., an ordinary middle manager who one morning awakes to find himself accused of a terrible crime – a crime which is too awful for his accusers to speak of. While at times absurdly funny, The Trial is ultimately a frightening depiction of what it means to live under a regime which operates on a circular logic that prevents outsiders, including those subject to its rule, from understanding – let alone challenging – the rules of the game, and who is making them.

Legal scholar Daniel J. Solove has expounded upon this metaphor, pointing out that:

The problems captured by the Kafka metaphor… are problems of information processing–the storage, use, or analysis of data–rather than information collection. They affect the power relationships between people and the institutions of the modern state. They not only frustrate the individual by creating a sense of helplessness and powerlessness, but they also affect social structure by altering the kind of relationships people have with the institutions that make important decisions about their lives.

Josef K’s plight, one of bureaucratic lunacy and an inability to discover the identity of his accusers, is increasingly an American reality. We now live in a society in which a person can be accused of any number of crimes without knowing what exactly he has done. He might be apprehended in the middle of the night by a roving band of SWAT police. He might find himself on a no-fly list, unable to travel for reasons undisclosed. He might have his phones or internet tapped based upon a secret order handed down by a secret court, with no recourse to discover why he was targeted. Indeed, this is Kafka’s nightmare, and it is slowly becoming America’s reality. — John W. Whitehead

For more on this and other pressing issues relating to the emerging police state in America, read my new book A Government of Wolves: The Emerging American Police State, available now at Amazon.com.

As I point out in my new book, A Government of Wolves: The Emerging American Police State, what characterizes American government today is not so much dysfunctional politics as it is ruthlessly contrived governance carried out behind the entertaining, distracting and disingenuous curtain of political theater.

Played out on the national stage and eagerly broadcast to a captive audience by media sponsors, this farcical exercise in political theater can, at times, seem riveting, life-changing and suspenseful, even for those who know better. Week after week, the script changes, with each new script following on the heels of the last, never any let-up, never any relief from the constant melodrama. The players come and go, the protagonists and antagonists trade places, and the audience members are forgiving to a fault, quick to forget past mistakes and move on to the next spectacle. All the while, a different kind of drama is unfolding in the dark backstage, where those who really run the show are putting in place policies which erode our freedoms and undermine our attempts at contributing to the workings of our government.

A Government of Wolves: The Emerging American Police State by John W. Whitehead

It’s the oldest con game in the books, the magician’s sleight of hand that keeps you focused on the shell game in front of you while your wallet is being picked clean by ruffians in your midst. A perfect example of this: while the nation debated the Trayvon Martin ruling, the Obama administration quietly requested and was granted permission by the FISA court which oversees the NSA’s surveillance programs to keep spying on Americans’ phone calls and emails to the tune of hundreds of millions of records per day.

Tune in tomorrow for more on this latest wrinkle in the surveillance saga.