Exiting the maze

That power must reside elsewhere, with the best and brightest, with those who have surveyed the perils of the world and know what it takes to meet them. Those deep within the security apparatus, within the charmed circle, must therefore make the decision, on America's behalf, about how much democracy – about how much discussion about the limits of democracy, even – it is safe for Americans to have.("America against democracy" – The Economist)

Until Snowden flew to Hong Kong, that's how things were. Small wonder the reaction to his revelations often seemed so disproportionate to those of us on the outside. No provision had ever been made for well founded, fact based cross-examination of their surveillance activities. It was never meant to happen. They were to operate quietly in the shadows, always the watchers, never the watched.

The American public weren't alone on the outside. Despite repeated efforts by NSA supporters and the White House to suggest otherwise, Congress didn't fare much better. With the exception of those on the House and Senate Select Committees of Intelligence, they've been consistently stonewalled.

And, just to close the circle, any members of those committees who might want to share concerns with the public are prevented by law from doing so.

Two Democratic Committee members in the Senate, Ron Wyden and Mark Udall, spent years warning Americans that they would be "stunned to learn" of the radical interpretations of secret law the Obama administration had adopted in the secret FISA court to vest themselves with extremist surveillance powers.

Yet the two Senators, prohibited by law from talking about it, concealed what they had discovered. It took Edward Snowden's whistleblowing for Americans to learn what those two Intelligence Committee members were so dramatically warning them about.

One needn't conjure up a conspiracy to account for this somewhat grotesque outcome.Instead, "the NSA travelled down a slippery slope.

At first, they focused on tracking traffic patterns. Some phone number in the United States was calling suspicious people or places in, say, Pakistan. It might be useful to find out whose phone number it was. It might then be useful to find out what other people that person has been calling or emailing, and then it might be useful to track their phone calls and email patterns. Before you know it, they're storing data on millions of people, including a lot of Americans. Then maybe one day, they track someone-a phone number or email address they'd never come across before-engaged in some very suspicious activity. They wish that they'd been tracking this person for some time, so they could go back and see if a pattern exists without having to wait for one to emerge. Then they learn that they can do this; new technology makes it possible. So they scoop up and store everything from everybody. They even convince themselves that they're not 'collecting' data from American citizens (as that would be illegal); no, they're just storing it; the collecting doesn't happen until they actually go retrieve it from the files.

The logic is in its own way undeniable and the institutional imperatives easy enough to understand. Trouble was, having crossed those various Rubicons they found themselves trapped. Justifiable as the individual elements all seemed, the totality of what they were doing no longer bore open scrutiny. No surprise perhaps that the only "sensible" response was a retreat even deeper into the bunker.

Which is pretty much where they, together with their voluntary (and involuntary) supporters, still find themselves. One has to wonder at the half life of the uneasy mixture of denial, bluster and threats they're forced to fall back on. Certainly, it isn't easy to see how this extravagant structure is going to be sensibly reined in.

At least not until (or more accurately if) America manages to break free of the fear that's dogged their every step since 9/11. Fear, and anger, but then they're so often fellow travellers. The fear has shapeshifted from piercing shock in the immediate aftermath to a generalised unease and ever present political paranoia about not being caught out again. Witness the recent evacuation of diplomatic posts across North Africa and the Middle East. Who knows what lies behind that: perhaps an utterly genuine threat, but it may equally be something relatively minor. Or even, perhaps, a low risk, high reward little feint from Al Qaeda.

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Late on Wednesday the 24th of July, the US House of Representatives narrowly voted down an amendment to rein in the NSA's bulk collection of phone records. At 205-217, it was far closer than almost anyone had expected. In American political terms, obsessed as they are with national security, this was pretty high on the Richter scale.

Perhaps the tide is beginning to turn. Perhaps the US will in time manage to haul itself back from this perilous course. It is in any case interesting that support for change is slowly drifting into the mainstream. Per Jay Rosen, whose recent article sparked mine: "When the CEO and editor-at-large of Foreign Policy magazine is saying: it took me a while, but now I see why Snowden was necessary… it means the elites in Washington are waking up to something big."

Eugene Robinson of the Washington Post did D.C. residents a big favor earlier this week when he courageously acknowledged the service Edward Snowden did for the United States… and for the global debate on rights and privacy in the big data era. I have myself been too slow to recognize that the benefits we have derived from Snowden's revelations substantially outweigh the costs associated with the breach. It is time we move from the kind of Patriot Act thinking that overstates security threats to such a degree that we subordinate our basic freedoms to something more consistent with our historical systems of checks and balances." ("Declaring an End to the Decade of Fear" David Rothkopf – - Foreign Policy)

Rothkopf goes further and suggests it's time to dismantle the Department of Homeland Security and the Directorate of National intelligence and return their essential functions to whence they came. These two behemoths were, as he put it, "born of fear."

Yesterday (Friday the 9th), the President chimed in. Much of his press conference was devoted to the uneasy balance between civil liberties and surveillance. He portrayed Snowden's revelations as illegal, unnecessary and potentially destructive given that: he (the President) had already "called for a thorough review" and signed an executive order providing whistleblower protection to the intelligence community pre-Snowden; and, "there were other avenues available for somebody whose conscience was stirred".

If we pay attention to actions rather than words, these contentions look shaky. Back in late June, post-Snowden, USA Today interviewed former NSA whistleblowers Thomas Drake, William Binney and J. Kirk Wiebe at length. Each had initially gone through all the appropriate channels to report their misgivings and only went public when those efforts failed completely. The results weren't pretty; Drake, for example, was initially charged with 10 felony counts with potential prison terms totalling 35 years, only to have them dropped on the eve of the trial. The presiding judge was not happy, calling the government's conduct "unconscionable".

Each was convinced Snowden did the right thing in not following normal whistleblower procedures (if such a thing exists anymore). They thought their own experience provided more than enough evidence, but if that weren't enough developments under the "Insider Threat Program" ought to do the trick.

Nevertheless, Obama did make some promises yesterday that he may to some degree be held to this time around, including this one in answer to a question.

What I'm going to be pushing the IC [intelligence community] to do is rather than have a trunk come out here and leg come out there and a tail come out there, let's just put the whole elephant out there so people know exactly what they're looking at.

We shall see. I'm not particularly optimistic, but at least there's now a modicum of two-way traffic around this debate and the political pressure seems unlikely to dry up any time soon.