09/02/2014 10:29 am ET Updated Nov 02, 2014

NSA Close Up

A few months ago a high-powered contingent from the electronic surveillance world gathered for a semi-public talk fest about "The National Security Agency At The Crossroads." The crossroads, as it emerged, is formed by the intersection of accelerating technological innovation, the offensive/defense dynamic, the proliferation of interested parties, and the intrusion of Fourth Amendment considerations.

Here are some impressions. First, this is a club -- or a circle. Everyone knew each other quite well from other venues. The NSA's presence is felt throughout the galaxy of information technology institutions -- businesses, consultancies, research institutes, publications -- via collaborative activities either past, present or in prospect. Two, a fascination with technology -- its capabilities, lines of future development, commercial potential -- was the dominant feature. (A deeper discussion of this phenomenon is offered here.) Technology is the binding element, it is the common passion.

Three, exchanges of policy matters were restricted to the legal issues associated with alleged trespasses on the Fourth Amendment. These were addressed in a refined, legalistic manner. Broader questions related to the GWOT, the purposes and policy utility of massive metadata collection, and the efficiency of such operations were notable by their absence. The NSA's own security flaws received relatively slight attention. The subject was folded into the general discussion of emerging challenges to cyber security and technical responses. There was no head-on tackling of the deep institutional flaws exposed by Edward Snowden. The ease of his penetration (even after warning superiors that the NSA systems were vulnerable to such an attack), the inability to determine what data he had accessed, the related revelation that close to 1,000,000 persons have "Top Secret" security clearances, the risks of heavy reliance on contractors -- none of this prompted a serious rethink of NSA ways and means.

Nor was focused attention given the manifest inability of the intelligence agencies to mine metadata to gain timely insight into person and actions. This failing is evident in regard to both terrorist related activities and political developments more generally. Creation and deployment of sophisticated algorithms has not done the job. Data accession in and of itself appears to be the priority.

Perhaps most significant, the group totally avoided the two questions that could strike a spark: what is the ulterior purpose of massive electronic surveillance, i.e. the policy objectives that it serves; and what does the record tell us about the competence of the intelligence agencies running these programs given the dismal record of intelligence failures over the past fifteen years. This prompts some discomforting thoughts. The main issues are these:

1. 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. The underlying premise is that a drastic threat to the nation's security is an established fact. That it may be imminent. That its magnitude matches that of 9/11. That its sources are multiple. Yet, no such assumption is justified. There is literally no evidence that anyone out there has the combination of will, organization and skill to prepare a major assault -- much less carry it out. The same holds for conjectured domestic plots. The discrepancy between presumption and the certifiable truth is immense.

2. To acknowledge this reality 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. Huge interests thereby would be endangered.

3. The performance of American intelligence agencies strongly suggests that the present emphasis on massive electronic surveillance is misplaced. Despite a comprehensive plan to access every single communication in the cyber sphere, the United States government knew nothing of importance about Putin's intentions in Crimea and Ukraine, the Egyptian military coup, the two Libyan fiascos, the Boson marathon plot or the capabilities of ISIS vis a vis the armed forces of the Iraqi government. As to the last, only now is there talk of redirecting (apparently finite) surveillance capabilities toward that target - and away from the NSA priorities: European Commission offices, the World Bank, Mexican federales in Tamaulipas state, and Dilma Rousseff's home phone in Brasilia.

Inference A: we are expending huge sums on technical surveillance that would be more profitably applied to human intelligence networks; and B: electronic surveillance massively directed at large populations contribute nothing to American security, and focused surveillance directed at leaders of friendly countries is a counter-productive exercise in vanity.

4. The debate about "security" vs "privacy" therefore is badly skewed, a distraction from serious issues, and based on false premises. The vast intelligence/counter-terrorism structure built to protect the United States against a 9/11 redux is based on brittle foundations. It is the belief in a diabolical and mighty enemy that justifies the effort and expenditure and cost to American liberties. Remove that foundation stone, and nothing supports the massive enterprise than the inflated ambitions and fabulist rhetoric of those who rule the empire and benefit from it. They, therefore, are prepared to go to extremes to ensure that the truth not be told. Hence, the fear mongering knows no bounds.

Example 1: a senior CIA officer declares that terrorist potential has grown, even though original al-Qaeda has been dealt serious blows and OBL liquidated, since the geographical spread of its affiliates has been drastically enlarged. Now, the whole of the Sahara (as well as other remote locales) must be added to their operational realm. Threat is to be measured by the square miles in which loosely defined "terrorist" groups are to be found. Example 2: another highly placed intelligence official warns that the danger of a new attack on the American homeland has risen because the notorious (if anonymous) Yemeni master bomb builder who invented the ill-starred underwear bomb five years ago has reportedly been sighted in northern Iraq. The combination of his unique talent with the "fervor" of ISIS, we are warned, is a potentially lethal brew that requires us to sharpen our defenses. Supposedly, Yemen -- the most "dangerous" terrorist node just a few months ago - is too "fervor deficient" to bring out the worst in the mad bomb-maker. Example 3: proposals to force the operators of Texas facilities that maintain stockpiles of explosive materials (such as those that destroyed the town of West two years ago) to draft detailed plans for safe storage and evacuation should be rejected since such plans could fall into the hands of terrorists -- according to the likely next Governor, now Attorney-General Greg Abbott. If al-Qaida were as clever as Abbott says, why not just let the next unregulated fertilizer plant blow up on its own and then take the credit - also saving the travel expenses?

So long as this mentality maintains its grip on the country, the leaders of the NSA, CIA, et al have little to fear in the way of serious efforts to curb their powers. The challenges posed by the Fourth Amendment critics are being easily parried. The security establishment has the full and faithful backing of nearly the entire political establishment -- from the Oval Office on down. No one dare challenge it with the sword of political retribution being brandished over their heads. President Obama has the authority to alter the NSA's surveillance mandate and powers by issuing Executive Orders that would supersede those he issued earlier and those from the Bush White House. He absolutely rejects the idea of doing so. As for the legislation now under review in Congress, it has been widely assumed by intelligence officials in private that any eventual compromise would 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. Their confidence in business-as-usual is reinforced by the judicial system's readiness to defer comprehensively at every turn to the claim of "national security/sensitive sources" - thereby impeding any encroachment on their private preserves. The law schools and bar associations are mute. The former see a fresh research subject. The latter see a radioactive pile to be approached with caution using robotic arms at a distance while covered with protective gear. The MSM demonstrate only episodic interest. The public is confused and anxious. So why not organize a few days of schmoozing and drinking and gossiping -- and invite some critics along?

Let's bear in mind a few home truths. The recently retired Director of NSA lied repeatedly to Congress re the scope of Agency surveillance and its successes -- with no consequences. He pronounced in November that 56 terrorist plots had been foiled thanks to augmented electronic surveillance. No evidence presented. Four months later, he swore that it was "one of two" incidents -- still no evidence. No one in Congress pressed him to reconcile those statements.* The Director of National Intelligence perjured himself before the Senate Intelligence Committee -- dismissing his outright lie as a misplaced circumlocution. The Director of the CIA hacked the computers of that Committee, lied about it, and then filed an official complaint with the Justice Department that the Senate had pilfered the documents in question. The President encouraged him to bring the complaint, backs him to the hilt, and aggressively defends his setting up a spy network at the highest level of the German government (given the operation's ineptitude, perhaps we should say tried to set up). The Agency is given a free hand to censor the very Senate report that appraises its misdeeds.

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 mass data 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? Indeed, why not just pass all the data on American citizens to Brits for safekeeping or simply let them do the collection on a retainer -- which already has occurred in a few instances on a reciprocal basis?

So long as the show's ringmasters can marginalize anyone who aims to spoil the game by demonstrating that the threat is a contrived illusion, and that heralded successes in the GWOT are largely make believe, the living will remain easy and the good times will roll on. This great constellation just spins in space without a strategic gyroscope.

*General Keith Alexander, since retired, revealed the full scope of his ambition in an article by James Bamford in WIRED ( 21.07.14). Here are some of its more noteworthy quotes; "For years, U.S. General Keith Alexander has been amassing a secret cyber army. Now it's ready to attack....Alexander's forces are formidable -- thousands of NSA spies, plus 14,000 cyber troops....Endgame hunts for hidden security weaknesses that are ripe for exploitation." Plans included a 'launch on warning" doctrine whereby massive cyber retaliation would be directed automatically at whomever made a strategic attack on sensitive U.S. computers. Its code name is MonsterMind. Preparations for the Great Cyber War evidently left no time to keep track of what General Sisi, Vladimir Putin or Abu Bakr al-Baghdadi were preparing.