Friday, December 31, 2010

What You Won’t Find In WikiLeaks

By Jayne Lyn Stahl
Online Journal Contributing Writer
Dec 6, 2010, 00:20
Courtesy Of "The Online Journal"

For an administration that came to power pledging greater transparency, so far the machinations of its Departments of Defense and State have only been revealed through a cinema verite Rolling Stone interview with the top general in Afghanistan, Stanley McChrystal, followed by the carefully calibrated, and immaculately timed release of a quarter million cables and other classified documents.

In this the information age, it should come as little surprise that information can be used as a weapon. Similarly, the withholding of information is often the most powerful ammunition a government has against those it governs.

In that context, all the hooplah about WikiLeaks effectively managed to deflect attention away from even greater wrongdoing on the part of a government that has made a cottage industry of justifying its dubious wars, and immunizing those telecommunication companies that unwittingly help keep those dubious wars afloat.

The irony of a government that is livid about violations of its privacy, and what it regards as the theft of classified cables and other documents, is rich when you consider that government is simultaneously engaging in eavesdropping and collecting the private correspondence of its own citizens.

Now, thanks to the stalwart efforts of the American Civil Liberties Union and, as The Washingon Post reports, we know that the federal government has managed on several occasions to skirt whatever legal restrictions are in place to protect the privacy of Americans. We now know, too, that this surveillance of e-mails, Web searches, telephone and cell phone calls has not only continued, but even escalated in the past two years.

Under the Freedom of Information Act, the ACLU was awarded access to 900 pages of “secret internal documents,” many of which were heavily redacted, but that show the federal government has indeed violated “legal limits” of what is permissible under the Foreign Intelligence Surveillance Act Amendment Act of 2008. Yet, the silence from government officials is palpable when it comes to the nature, or number of times there has been a breach.

Once again, we break the law, then we make it law.

For all their outrage about mass distribution of what were meant to be classified, personal communications between diplomats and by world leaders brainstorming on how to deal with Iran, there has been widespread congressional agreement, on both sides of the aisle, on legitimizing the interception of our calls, and e-mails. Moreover, there has been institutional apathy when it comes to any kind of authentic oversight.

It was a lame duck president, George W. Bush, who signed the FISA Amendment Act of 2008, a measure that changed the original 1978 FISA Act by granting the government expanded surveillance powers, and by immunizing from liability telecommunication companies that cooperated with the government. The amended FISA allows for warrantless eavesdropping on foreign targets if the attorney general deems that surveillance is urgent. The term “urgent,” by the way, is not defined.

Apart from “probable cause,” the 1978 act required a warrant before any phone could be tapped, or letter seized as would seem logical given the Fourth Amendment injunction against “unreasonable search and seizure.”

Consider that the 2008 amended FISA was enacted because the process of obtaining a warrant in order to tap the phone of an alleged terrorist was considered too cumbersome, so it was discarded often enough to bring it to the attention of the American people and Congress.

In the “new normal,” the original FISA wasn’t good enough for the Bush administration. They wanted to make it easier to legally monitor electronic, and other communications, and to weaken the standard of proof and requirements for warrants. Ironically, even though HR 6304 was intended to give intelligence agencies a wider berth, there is still a need to circumvent legal restrictions. We are now faced with having to amend the amended version.

Though the Obama administration promised greater transparency, it has delivered even more secrecy, and one hears hardly a peep about a campaign to target and data mine law abiding Americans that continues to this day. Is it just “enemy combatants” for whom there may be an “urgent” need to monitor? Antiwar groups like Green Peace have been subjected routinely to monitoring by the FBI. Doubtless, Julian Assange didn’t end up on Interpol’s “red notice” list without having first been the recipient of some heavy duty electronic surveillance. Not surprisingly, a few noses get bent out of shape when those who are monitored end up monitoring them.

While the attorney general’s office insists there is greater protection of civil liberties, and more oversight today than there was back in July 2008, a spokesperson for the ACLU calls for “more public disclosure” of FISA violations, and urges a debate about whether to keep FAA, or amend the amended version before it expires in 2012.

Why doesn’t the story of expanded government surveillance have teeth in the press? FISA violations aren’t nearly as sexy as revelations about Khaddafi’s extracurricular activities with a blonde nurse. The Khaddafi story is bound to sell more Pampers than one that calls out intelligence agencies for breaking the law.

There are more in Congress who will read Bob Woodward’s latest book than have read the USAPATRIOT Act, yet they voted to approve one of the most pernicious pieces of legislation of all times, and one that paved the way for a measure that effectively legalizes neutralizing the need for warrants and reasonable proof.

Still, the hubris and hypocrisy of those elected officials who call for prosecuting Julian Assange for treason is inescapable. Who knows, maybe someday the release of 250,000 cables and other actions by WikiLeaks’ founder may even be seen as a public service.

In the meantime, rest assured that what WikiLeaks did was child’s play compared to what this government is doing, each and every day, to its own citizens in the name of national security, and with impunity.

Jayne Lyn Stahl is a widely published poet, essayist, playwright, and screenwriter, member of PEN American Center, and PEN USA.

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