10/29/2013 12:37 pm ET Updated Jan 23, 2014

Spying on Allies and Plausible Deniability

co-authored by Dr. Stephen Bryen, CEO Ziklag Systems

In politics, as in many other fields, there is always a desire to protect the leader. One way is for underlings to shoulder blame for missteps or miscues, a process known as "plausible deniability." The leader will say he was unaware or uninformed and so cannot be held responsible for something that happened. The underling will swear to the fib.

Plausible deniability does not only involve evading or avoiding blame, but also shifting it to someone else, some other organization, or some outside force - to anything and anyone but the leader. The case of NSA spying on world leaders seems to be a case in point, but the first question is how plausible is the deniability? The second is how much deniability matters now and in the future.

President Obama has apologized to some of these leaders, most particularly Chancellor Angela Merkel of Germany, but the NSA has taken responsibility. It should be noted that no specific individual within NSA has been said to be culpable, so in effect, sustained spying was an institutional faux pas and not actually the responsibility of anyone.

The NSA's mission is to supply its clients with "hot" information on a wide variety of subjects deemed relevant to their clients' interests and responsibilities. Generally, the NSA provides as much information as possible in the "raw" and un-redacted form, because it is more credible and easier for the client to assimilate and digest.

It is not a wrong thing for the U.S. to spy on world leaders, including friends. It is certainly true that our allies, friends and adversaries all try to do the same to us. Often the President and others in the administration would get information on an ally's strategy, which could help them better structure the U.S. negotiating position. Sometimes, though, the idea would be to find out whether the ally was indeed carrying out promises made, or agreements reached. Or whether the ally was working "both sides of the street" and telling us what we wanted to hear, while telling others something different.

But would the NSA routinely intercept the phones of allied leaders without political guidance?

The NSA is led by an Admiral or a General of three stars or higher. He is selected by the Secretary of Defense and his appointment is confirmed by the President. The NSA head reports directly to the Under Secretary for Intelligence, who in turn reports to the Secretary of Defense. The NSA head is also the Commander of Cyber Command and in that capacity reports to the Commander of the U.S. Strategic Command and to the Secretary of Defense.

As a military officer, the head of the NSA will be careful to carry out orders he receives from the Under Secretary for Intelligence or from the Secretary of Defense. It is highly unlikely, in fact nearly unthinkable, that he would operate independently without clear policy guidance.

There are mixed reports about what the President knew, when he knew and even if he knew about spying on his international colleagues. Since he and his political advisors were clearly being fed information from the NSA, it is hard to believe that they did not know what they were getting or where it came from. But did the President "order" or "approve" the intercepts? The jury is still out on this one, and the reports are inconclusive.

What is interesting is that neither the White House, nor the Secretary of Defense, nor the Congressional oversight committees, have said anything about pinning responsibility for ordering the intercepts although Senator Dianne Feinstein claims she did not know about them, wants it stopped, and intends to hold hearings. The fact that spying on some friends, especially Chancellor Merkel, appears to have started in 2002 under a Republican administration and continued into the present Democratic one, strongly suggests that everyone knew what was happening and everyone at least tacitly approved.

So, if the "plausible deniability" isn't plausible, the question becomes whether such spying helps or hurts, now and in the future.

One of the problems understanding the Edward Snowden leaks and other information about the NSA is the impossibility of analyzing the usefulness of the mass spying effort generally, and the usefulness of spying on foreign leaders program specifically. The risk versus rewards calculus leans toward the acquisition of ever-greater amounts of information.

No matter what the President has said or not said, and no matter what the NSA has implied about its "responsibility" to carry out spying missions independently, it would be hard to imagine a President not approving the NSA's spying activity. Why would a President voluntarily cut off a source of potentially valuable reportage? How could any President feel more secure with less information? It is likely no President ever turned down an NSA-supplied opportunity.

Of greater interest is the future of the NSA as knowledge of intercept technology, encryption, and technological wizardry spreads around the world. The U.S. has capitalized as the dominant technological player, but is ceding dominance to others, with China one that is benefitting and exploiting the changed circumstance. Inter alia this means we will have to spend more and more time defending ourselves and our critical infrastructure, and trying to intercept others will become more difficult. If one thinks of NSA's operations on a Bell Curve measuring effectiveness, we are on the downward slope.

Plausible deniability in future may matter much less, and defenses against spying will matter much more.

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