THE BLOG

The NSA's Second Coming

06/08/2015 10:33 am ET | Updated Jun 08, 2016
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Americans have acquired a fondness for worlds of make-believe. Torture was done by "a few bad apples." Or, we must await the "verdict of history" to judge how our invasion of Iraq turned out. Or, America is besieged by hordes of crazed Islamist terrorists scaling the walls and dedicated to surpassing the horror of 9/11. Or, The Sniper salvaged American dignity and self-respect from that tragic fiasco. Or, that it was a brilliant CIA and valiant Seals who avenged a righteous America by storming Abbottabad to assassinate an infirmed old man in his bed.

This last is one of the threads of make-believe woven into the fabricated narrative about the Congressional psycho-drama this past week over electronic spying on Americans. That engrossing campfire tale has our noble representatives struggling to find the path of Solomonic wisdom that walks a tightrope between security and liberty. We awaited in suspense to see if the perilous feat would reach its goal. We agonized at word of the NSA being forced by obedience to the Law to shut down its all-seeing networks -- thereby, for a few hours, leaving America exposed to the diabolical schemes of the bearded devils. The White House warned that we are playing "Russian roulette" with the country's very survival. No one pressed the question of all six chambers in fact being uncharged.

That all makes for one awesome production. Doubtless there will be a film adaptation immortalized in a script by Bob Woodward. Something like that will happen -- even though it is a concocted yarn whose meaning has been twisted and whose significance has been vastly inflated. For the truth is that what Congress did, and what it did not do earlier, changes very little -- and nothing of cardinal importance. The main effect is to give the impression of change so as to release pressure for reform that might really be meaningful. The base truth is that everything that counts remains the same. To entrench and to legitimate a system of massive surveillance that undercuts our privacy while doing nothing to secure our well-being.
Let's look at the false notes struck by this narrative.

Matters of Fact

1. The so-called restrictions on bulk data collection apply only to telephone calls. All else is exempted: emails, Internet searches, social media, and info regarding each that is retained in our communicating devices.

2. The restrictions on real-time surveillance of telephone calls can be overcome by the granting of a warrant by the FISA upon request by NSA, FBI, Justice Department, CIA -- not to speak of local authorities. That Court, over the past eight years, has refused only 11 of 33,900 requests. The judges, by the way, are handpicked by Supreme Court Chief Justice John Roberts who has jumped into the policy arena by declaring himself strongly opposed to any tightening of restrictions on how the court operates or on the NSA's methods. The FISA court's attitude toward government spying on Americans has been generous to the extreme. Former lead judge of the FISA Court, John D. Bates, has campaigned vigorously on behalf of the status quo. He even objected to the extra workload of requiring that courts approve all national security letters, which are administrative subpoenas allowing the F.B.I. to obtain records about communications and financial transactions without court approval.

3. The specified targets may be organizations, groups and networks as well as an individual. In practice, that means each grant of surveillance power may authorize comprehensive electronic spying on hundreds or thousands of citizens.

Currently the NSA is overwhelmed by the billions of communications they register and try to catalogue each week. Long-term data retention only makes sense if there is a project afoot to exploit it systematically in order to control, to suppress, to penalize. There is no such Big Brother plan in place or on the horizon. NSA operations fortunately have instead been conceived and managed by fantasists and bureaucratic empire builders -- as is demonstrated by Edward Snowden's leaks of their immense target list and their major intelligence failures.

4. The terms of the warrants allow for a two-step "hop" from the identified target to others whose suspect communications emerge from the initial combing.

Here is one hypothetical scenario. The NSA requests approval from the FISA court to collect the communications of the Arab-American Civil Rights League on the grounds that it suspects some dubious characters have been using its facilities. Over a period of months (if there a restriction on the duration of electronic surveillance under FISA rules), they register 1,000 communications. Using 'first hop' privileges they identify 250 persons whose own communications they wish to tap. Using "second hop" privileges they next identify a total of 1,500 more people whose communications they wish to tap. That makes a total of 2,700 persons whose telephone calls they are monitoring and storing. Each year, the NSC requests warrants from the FISA courts about 500 times. Hence, we can project more than 1 million telephone numbers now under surveillance for an indefinite period of time. For we should further note that once an official investigation is begun the records acquire the status of legal documents in a judicial or quasi-judicial proceeding.

5. There is an exemption for on-going investigations. The Patriot Act's Section 224, its "grandfather clause", allows active investigations that began prior to midnight on Monday to continue using the expired programs.They number in the thousands given the hyper-activism of our security agencies in identifying subjects for their attentions in order to justify vast capabilities and vast budgets. Those broadly cast investigations can go on for years. And all of this is secret.

6. Central to this week's political drama was the NSA's domestic Metadata collection program. The law now requires that telecommunications companies -- not the government -- hold onto the data stores. The act provides a 180-day window to make that transition, which effectively ends the current program. This is a distinction without a difference. Those companies have cooperated routinely with the Intelligence agencies -- recent backtracking and protestations notwithstanding. It is hard to imagine turning down an "urgent" request for access -- with or without a warrant. Once inside the system, the NSA or other agency will be free to do some rummaging.

7. The NSA coordinates its spying closely with Intelligence agencies of the four other English-speaking countries that participate in "Five Finger" alliance: the UK, Canada, Australia and New Zealand. Their data sharing does not stop at that acquired by legal means. They do each other favors by relying on a partner to circumvent domestic restrictions in any one of them. There are credible reports that NSA has assisted Britain's GCHQ in this respect. Both have assisted the German NBD in spying on German targets- as has been revealed within the past few weeks. Therefore, the significance of last week legislation is undercut by this close collaboration.

8. Sponsors of the Freedom Act trumpet a supposed breakthrough insofar as it mandates some small transparency from the secret Foreign Intelligence Surveillance Court. It vaguely affirms that the Court will be required to declassify a few of its tightly held opinions. Those are opinions explaining why a warrant request is approved -- as they automatically are. There is no reason to expect any great revelations. After all, the essence of the FISA Court's reasoning is well known. We live in dangerous times -- as witness 9/11; the government assures us that there is compelling evidence of dangerous persons on the prowl and plots afoot; the classified information upon which that assessment is made is persuasive -- even though we have been granted only a glimpse of a brief summary; this Court cannot take on itself the responsibility of overriding the professional judgment of our public servants and thereby put at risk the security and well-being of the American people; blah-blah, blah. Judge Bates reflects the reigning philosophy of the FISA court in warning that greater public disclosure of unclassified summaries of court rulings would "likely to promote confusion and misunderstanding" among the likes of you and me.

9. The new legislation also allows the judges to appoint a "friend of court" to argue on behalf of privacy concerns. This does not mean that there will be adversary proceedings or a systematic examination of the case for a warrant. It simply means that there may be designated persons available to remind the FISA judges that privacy considerations should be taken into account in their deliberations. For all that is worth, they might as well prepare a form letter that is emailed to the Court every time that a request arrives on their computers.

10. Without public notice or debate, the Obama administration has expanded the National Security Agency's warrantless surveillance of Americans' international Internet traffic to search for evidence of malicious computer hacking, according to classified N.S.A. documents released this week by Edward Snowden. In mid-2012, Justice Department lawyers wrote two secret memos permitting the spy agency to begin hunting on Internet cables, without a warrant and on American soil, for data linked to computer intrusions originating abroad -- including traffic that flows to suspicious Internet addresses or contains malware, the documents show. Who decides what sites are suspicious on the basis of what criteria?

11. United States Intelligence agencies have multiple, redundant methods for acquiring bulk data or specific data. They also have multiple legal justifications, however contrived they might be; those justifications are extremely difficult to challenge in the federal courts who have pretty much neutered themselves on these types of security issues. Where top officials, including the President, feel it necessary, they have few qualms about skirting the law.
12. There is not a single documented instance wherein bulk data collection, or its variants, has resulted in stymying a terrorist plot in the United States. When questioned before Congressional Committees, Clapper and then NSA chief General Keith Alexander claimed that there were 56 cases. That number quickly dropped to six, then "one or two," then one. That supposed case referred to the notorious pseudo-plot of a Corpus Christi used car salesman being approached by an anonymous Iranian agent to assassinate the Saudi Ambassador to Washington -- such information as exists having in fact been derived from conventional sources. Boston and Ft. Hood slipped under the misdirected and ill-conceived dragnet.

Conclusion: The record of 15 years tells us that Meta data collection has zero value in keeping Americans safe.

Matters of Philosophy

The debate about privacy and surveillance has the presumed need to strike a balance between "security" and civil liberties as its pivot. Those who argue that Fourth Amendment guarantees are not liable to attenuation or limitation because of circumstance are judged to be absolutists. For the overwhelming majority of commentators, some concessions to exigent conditions are recognized. We hear endless reiteration of the proposition that we must "balance security and liberty." Even distinguished law professors from prestigious law schools tell us that.* But it is a false dichotomy -- in two respects. For one thing, there is no evidence that transgression on our liberties makes us safer -- as noted. More fundamentally, unlawful and/or unconstitutional conduct is unlawful and unconstitutional whatever the supposed motivation and purpose. That is the essence of a rule-bound system -- a system of law that delimits the valid, acceptable actions of individuals -- including public officials. Expedient need is not accepted as grounds for murdering someone -- even if you suspect him of harboring designs to kidnap your child. Hunger is not an acceptable excuse for mugging somebody and stealing their purse. Motivation may be acknowledged as a mitigating factor when it comes to meting out punishment. The illegality of the act itself is not obviated, though. If searches and seizures without warrant are legally proscribed, then it should make no difference that General Clapper of the NIO, or Admiral Rogers of the NSA, or Mr. Brennan of the CIA -- or Mr. Obama in the White House -- thinks that it would be a good idea to violate the law and/or Constitution. That sort of rationalization marks the road to autocracy and the subordination of law to individual will. It means wounding democratic government as we know it.

Belief that the United States is in grave and imminent danger from serious terrorist attack is the cornerstone premise holding up the massive edifice of our Intelligence apparatus. To acknowledge that this rendering of reality is groundless is to cut the ground from under the pervasive view that extraordinary measures to protect the United States' security are imperative. For the promoters of draconian surveillance, this is tantamount to a silver bullet that stops in its tracks the momentum -- political, intellectual -- pushing toward building the security state. As William Pitt warned us:

"Necessity is the plea for every infringement of human liberty. It is the argument of tyrants; it is the creed of slaves."

The United States Freedom Act does not trouble Intelligence agency leaders. They have widely assumed, as admitted in private statements, that the compromise provisions merely create a few procedural inconveniences that could be circumvented or neutralized by exploiting loopholes - no more than speed bumps. None of the Agency's core activities would be significantly affected. So there is no reason for anyone in the intelligence agencies to sweat the small stuff: a shift in the number of days the NSA can retain the sweepings of Metadata collection; or whether the data should be held at their storage lock-up or the one across the street protected by a bicycle lock and owned by a very accommodating neighbor? And who's checking, anyway -- the FBI? the FCC?

We have created a monster. A Great White Whale that rapaciously stalks the electronic seas devouring all within reach regardless of species or nutritional value.