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Big Brother, Kill Lists, and Secrecy: What to Expect from Obama's Second Term

Following Barack Obama’s significant electoral victory, the ways in which the President will interpret his new “mandate” are still very much up for debate. While pundits, many of whom got the election seriously wrong, fumble to come up with new predictions, an analysis of Obama’s track record and statements on national security policy can be quite illuminating. Two momentous stories of the past few weeks can help us evaluate current and future prospects for our Constitutional rights, a year after Osama bin Laden’s death and a decade after 9/11. One grim harbinger of what’s to continue: a nighttime drone strike in Yemen that killed three “al-Qaida militants” was carried out within 24 hours of Obama’s victory speech.

But even more important was the bombshell story that appeared in the Washington Post on October 23, revealing the existence of a new database within the National Counterterrorism Center (NCTC) that will list suspected terrorists and militants slated for extrajudicial assassination. The article details the creation of a “next-generation targeting list called the ‘disposition matrix’” which “contains the names of terrorism suspects arrayed against an accounting of the resources being marshaled” to kill them, including the ability to map “plans for the ‘disposition’ of suspects beyond the reach of American drones.”

Additionally, on October 29the Supreme Court heard oral arguments in Amnesty v. Clapper, evaluating a lawsuit filed by journalists, human rights workers, and lawyers, who claimed that their jobs are unnecessarily hampered by the specter of the National Security Agency eavesdropping on their communications with clients overseas. As described by the Electronic Frontier Foundation (EFF), “the [Supreme] Court will essentially determine whether any court… can rule on whether the [National Security Agency]’s targeted warrantless surveillance of Americans’ international communications violates the Constitution.”

What do NSA’s warrantless wiretapping program and the Obama administration’s recently developed “disposition matrix” have to do with one another? Two points resound in particular. First, both are only able to function in an environment of total secrecy. Also, they represent significant advances in the codification of a new norm for U.S. national security policy—one very much at odds with the constitutionally limited Commander-in-Chief of common lore.

Perhaps even more ominously, the infrastructure development of the Obama administration’s policy of targeted killing signals a creeping move toward domestic application. As drone technology continues to be imported home, the convergence of the kill-list(s) within the NCTC bureaucracy—which houses huge repositories of both domestic and foreign intelligence with no probable cause of criminality—is a foreboding development in this saga of eroding checks and disappearing balance.

Climbing Out of the Abyss, Jumping Back In

Unknown to the American people and to much of their government until the late 1970’s, NSA has enjoyed free rein to intercept the electronic communications of Americans and foreigners since its secret inception in 1952. To those who were familiar with it, the uniform joke was that NSA stood for “No Such Agency,” an indication of its covert and prized status within the intelligence community.

After media revelations of intelligence abuses by the Nixon administration began to mount in the wake of Watergate, NSA became the subject of Congressional ire in the form of the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities—commonly known as the “Church Committee” after its chair, Senator Frank Church (D-ID)—established on January 17, 1975. This ad-hoc investigative body found itself unearthing troves of classified records from the FBI, NSA, CIA and Pentagon that detailed the murky pursuits of each during the first decades of the Cold War. Under the mantle of defeating communism, internal documents confirmed the executive branch’s use of said agencies in some of the most fiendish acts of human imagination (including refined psychological torture techniques), particularly by the Central Intelligence Agency.

The Cold War mindset had incurably infected the nation’s security apparatus, establishing extralegal subversion efforts at home and brutish control abroad. It was revealed that the FBI undertook a war to destroy homegrown movements such as the Black Liberation Movement (including Martin Luther King, Jr.), and that NSA had indiscriminately intercepted the communications of Americans without warrant, even without the President’s knowledge. When confronted with such nefarious enterprises, Congress sought to rein in the excesses of the intelligence community, notably those directed at the American public.

The committee chair, Senator Frank Church, then issued this warning about NSA’s power:

That capability at any time could be turned around on the American people and no American would have any privacy left, such is the capability to monitor everything. Telephone conversations, telegrams, it doesn’t matter. There would be no place to hide. If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capability of this technology. I don’t want to see this country ever go across the bridge. I know the capability that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return.

The reforms that followed, as enshrined in the Foreign Intelligence Surveillance Act (FISA) of 1978, included the establishment of the Foreign Intelligence Surveillance Court (FISC): a specially-designated panel of judges who are allowed to review evidence before giving NSA a warrant to spy on Americans (only in the case of overseas communication). Hardly a contentious check or balance, FISC rejected zero warrant requests between its inception in 1979 and 2000, only asking that two warrants be “modified” out of an estimated 13,000.

In spite of FISC’s rubberstamping, following 9/11 the Bush administration began deliberately bypassing the court, because even its minimal evidentiary standard was too high a burden of proof for the blanket surveillance they wanted. So began the dragnet monitoring of the American public by tapping the country’s major electronic communication chokepoints in collusion with the nation’s largest telecommunications companies.

When confronted with the criminal conspiracy undertaken by the Bush administration and telecoms, Congress confirmed why it retains the lowest approval rating of any major American institution by “reforming” the statute to accommodate the massive law breaking. The 2008 FISA Amendments Act [FAA] entrenched the policy of mass eavesdropping and granted the telecoms retroactive immunity for their criminality, withdrawing even the negligible individual protections in effect since 1979. Despite initial opposition, then-presidential candidate Barack Obama voted for the act as one of his last deeds in the Senate. A few brave (and unsuccessful) lawsuits later, this policy remains the status quo.

Seemingly Impossible to Stand (Up For Your Rights)

The latest challenge to government snooping, Amnesty v. Clapper, isn’t even about Big Brother’s legality in the first place. The defendants are appealing a federal circuit court’s decision that granted legitimate “standing” to the plaintiffs to bring suit disputing the electronic surveillance program’s constitutionality.

The Justice Department maintains that the plaintiffs don’t have standing to challenge the powers granted in the FAA because they are unable to claim with certainty that they were specifically wiretapped in the first place. Such a determination is impossible to make because all attempts to gather said information have hitherto been quashed by federal courts. They have overwhelmingly agreed with the government’s assertion that disclosing such information would divulge state secrets. Thus the only way to prove aggrieved status, and then challenge government snooping, is through government admission.

Despite pledges to use the privilege sparingly, Barack Obama’s administration has enshrined the Kafkaesque nature of American judicial proceedings in the War on Terror: the government claims it is a state secret whether you’ve been targeted for surveillance, thereby invalidating any legal challenges you may present because you can’t even prove you’ve been a victim.

As Justice Sonia Sotomayor put it ten seconds into the Solicitor General’s argument: “General [Donald Verrelli], is there anybody who has standing?”

The Supreme Court’s decision in Amnesty v. Clapper has the potential to determine how far the government can extend the cloak of secrecy over its national security activities. Notwithstanding the tough questioning by Sotomayor and her liberal colleagues on the bench, legal scholars note that the court usually doesn’t hear a case unless it sees legitimate ground to overturn a circuit court’s decision—which in this case would mean denying that the plaintiffs had standing to bring suit.

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