From the desk of Thomas Drake::::::::::::::::::::::::::::::::::::::::::::::::::::::::
The past several months are certainly surreal times we live in -- locally, regionally, nationally and globally.
The COVID-19 pandemic has revealed a lot of unpleasantness about how people treat each other, and the degree to which blame is thrown around, along with three-second sound bites. But of course, if you are in power you never want to let a good crisis (even a pandemic) go to waste.
Everything is so hyper-polarized and divided these days politically with massive disinformation and propaganda campaigns going on. Or as I prefer to call them -- mistruths or missed truths.
And the baser side of the human condition definitely turns my stomach over more these days, than it has in the past. I am also frankly challenged not to grow too cynical in the face of so much discord and division across the social, civil and political spectrum.
I just don’t think that enough people TRULY appreciate (let alone really understand) what we are losing these past few years (and have lost since 9/11), when it comes to democracy and freedom and speaking out against abuse of power of all kinds from all sides, as well as the steady and alarming erosion of our precious rights and liberties.
Given all the instability and conflict and rancor we hear and see all around us, history does bear eyewitness. And even if history does not always exactly repeat, it certain appears to rhyme!
One example is President Trump withdrawing the U.S. from the Treaty on Open Skies (an arms control treaty) due to alleged violations by Russia. I am well aware of this treaty coming out of the Cold War as a former military service and aircrew member in the Air Force. I had several former military colleagues with whom I served, directly supporting this treaty on specially designated aerial overflights of the former Soviet Union designed to reduce the chance of a terrible accident or misfire -- especially when it involves nuclear arms.
The myopic decision by Trump for unilateral withdrawal out of this treaty for trumped up reasons (pun is definitely intended), risks abandoning arms control and turning it into a free-for-all arms bazaar and race to the bottom. Withdrawing from this treaty actually undermines our national security and the security of the world for self-serving purposes, and also prevents other countries from monitoring the U.S. -- which I think is the larger purpose here behind Trump’s withdrawal as well as his open desire to sell more arms to the highest bidders.
The Open Skies Treaty is an agreement between 35 nations to date that permits each country to fly over the land of the others. Fundamentally this treaty was expressly designed to promote transparency and mutual observation of military developments and not create situations that escalate into actual conflict due to misunderstandings or missed signals.
This is the third time Trump has withdrawn the U.S. from an arms control agreement and each time creates greater instability in his quest to make America “great again” and go it alone.
The other example is even closer to home for me, given my own whistleblowing on the abuse of national security power violating the privacy rights of people through warrantless surveillance post-9/11 for the sake of just getting the data.
This example is centered on the current attempts to reauthorize certain expiring sections of the FISA Amendments Act (based on certain sunset provisions), which simply codified what was already taking place in secret post-9/11 over a number of years when the original FISA was simply tossed aside.
The FISA Amendments Act would not have happened absent the public-interest outing of the over four-year state secret mass surveillance regime approved by Bush/Cheney. The outing came with the blockbuster front page New York Times article in December 2005 that ultimately led the government to target me and others early in 2006.
That multi-year, multimillion-dollar criminal “leak” investigation, launched due to the revelations made by the New York Times, led to the signature Espionage Act case dropped on me in 2010 via a very publicly announced 10-count indictment by the Obama Administration’s Department of Justice.
The original FISA Amendments Act was signed into law in 2008 (and yes, then-Senator Obama voted for it) and has been reauthorized ever since.
The current modest reform bill that was under consideration for the FISA Amendments Act would end the so-called “call detail records” (CDR) program that was kept in a watered-down form under the USA Freedom Act of 2015. It still had the government collecting hundreds of millions of these records every year from providers based on just a handful of orders -- that were really just general warrants of a blanket nature that also still violated the Constitution.
There are also some changes to the business records provision, also known as Section 215 (where a person has no reasonable expectation of privacy because the data is “owned” by a business entity) and the government can just get it, if deemed “relevant” to a national security investigation. The bar for such an order is not probable cause, as is required under even a normal FISA warrant, so this becomes a backdoor loophole to get any information that simply meets the very low bar of satisfying any investigative purpose including location-based information. Location-based information was determined by the Supreme Court (5-4 decision) as having 4th Amendment protection in the Carpenter v. United States case from 2018. These orders also don’t even require that the individual picked up in such an order have any connections to the declared target of an investigation, either!
Whether or not any of this survives or is changed, including restrictions on web-based information, remains up for grabs. Even provisions for improved friend of the court briefs, to provide independent oppositional perspective to the government’s case for such orders, remain up for grabs given the political climate.
In essence, a whole lot of surveillance shell games are getting played out (as the public gets played) to keep the surveillance wheel going, with little concern for even the rights and protections afforded “the people” under the 4th Amendment of the Constitution.
Do find myself worrying more about our own future -- even though I am quite hopeful over the long term circumscribed by the moral arc of the universe, that does bend eventually toward justice, and as I like to add, mercy.
Regards to all. Thanks for your continuing support and please take care of yourselves and each other during these trying and uncertain times.
-- Thomas Drake
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