01/20/2014 10:23 am ET Updated Mar 22, 2014

Spying and Intelligence in the IT Era

We live in the age of communication. More means in more varied formats, more readily available, exist to communicate than ever before. This massive increase in the number of electronic communications is a boon for one set of Very Serious People: the intelligence operatives who thrive on a rich diet of accessible information. For them, the swarm of communications is what the wildebeest migration is for Serengeti crocodiles. We now know that the National Security Agency set itself the goal of tapping and registering every single communication around the globe whether by telephone, computer or even person-to-person if a recording device could be secreted somewhere in the vicinity of the speakers. Ingenious ploys were used to tap into undersea cables of the main communications companies, to compromise the encryption systems designed to protect Internet users, to create backdoors into Microsoft systems, to pre-bug equipment and software destined for the most sensitive users. And, of course, to pick signals directly out of cyber space. In all, billions of messages a month have been recorded.

The purpose? Well, the story is that this is being done to protect us from "terrorists" -- unidentified on grounds that that information is too sensitive to be shared. How many "plots' aborted? Back in May, generals James Clapper and Keith Alexander gave us the number of 56. No specifics. In November, Keith Alexander pared that back to one or two - still no specifics. One for which they are taking credit are the arrest of a Somali taxi driver in San Diego for sending $8,000 to a charity back home which allegedly is tied to al-Sabaab. That is supposed to be worth rescinding the 4th Amendment.

There is the other, more sinister explanation for why our government has embarked on this promiscuous hoovering of electronic communication. Information, after all, carries the potent potential for control. If our rulers know everything about everyone, then in principle they could be in a position to manipulate us en masse, to intimidate or threaten or to extort what they want from specific individuals. In truth, there is only scanty evidence of the government using their dossiers of communications data to suppress political activity at home. The instances that we know of involve things such as contributing to Islamic charities somehow associated with a group on the Department of Justice's ever growing list of terrorist organizations, or reinforcing the threat to make life miserable for banks, postal services, etc. who might be so unpatriotic as to make their services available to anyone connected with Wikileaks. This is dismaying, and used to be unconstitutional in the old days when the Bills of Rights was taken literally. But it is not 1984 either. Nor is there a scheming J. Edgar Hoover masterminding things.

The War On Terror

The value of this indiscriminate data gathering in the nitty-gritty of the GWOT seems to be greatly overstated. That proposition holds for our costly intelligence activities generally. Take Benghazi. The recent disclosures (NYT - December 28, 2013)) paint a picture of American officials having not the faintest idea of who was who among the various Islamist militias we were dealing with - and whose possibly mischievous doings the clandestine CIA team in Benghazi was trying to monitor. We had no inkling of the attack that was being planned. We misconstrued which of the locals we could count on. In short, we were completely outmaneuvered by Ansar al-Sharia which set out to close down the operation and succeeded. They also latched on to the CIA's dossiers of suspect "terrorists" which were left lying around in hard copy.

Take Yemen - where mis-targeted drone strikes against supposed terrorist groups linked to "al-Qaidi" make us a prime recruiter for various hostile groups there. A repeat of what has happened in Afghanistan and Pakistan. In early December, we mistook a wedding party for a caravan for bad guys - despite blanket surveillance. This was yet another reminder that raw "intelligence" information without the analytical sophistication to guide and appraise it is meaningless. In fact, it is likely to be deleterious since we presume knowledge that is mistaken.

The overload of electronic communications that we amass daily defies any method for sorting and processing them reliably and in a necessary timeframe. We have learned that the NSA has developed super algorisms for ordering the data super fast. Obviously, these methods are not cracked up to what the intelligence people claim them to be. Otherwise, there would not be the failures that we have witnessed in Libya, in Yemen, in Mali (where we missed a military coup and defection of elite units that the U.S. army itself was training), or in Somalia where SEALS hit the beaches to attack an al-Sabaab "command center" that turned out to be an innocent ocean side compound (a rushed action prompted by the embarrassing assault on a Nairobi shopping center which US intelligence also missed).

NSA claims that it sifts data using 7,200 key words. That, on the face of it, is absurd. One cannot produce the required fine differentiation of electronic data with that kind of crude colander. And if one must move through several stages to get anywhere close to a useful degree of specification, the information's half-life of utility may well have been exceeded. Moreover, there is the critical factor of language skills. There is reason to doubt that the NSA and CIA have at their disposal a sufficient number of skilled linguists to handle the huge flow of communications that need to be translated and interpreted. In the Middle East, it is not just a matter of knowing Arabic. The need is for people familiar with scores of dialects and their vernacular usages.

Let us imagine the newly hired novice translator confronted with the recording of conversations somewhere in the highlands of Yemen in the local vernacular. The number of people who can speak it fluently may only be in the tens of thousands. Are some of them sitting round-the-clock at Fort Meade? If not, we have a situation in which a fourth generation Lebanese Christian (or recent graduate of an excellent program for teaching standard Arabic) is struggling to make sense of conversations that he barely understands. So: he may translate "Death to the United States; an unpitying death to Uncle Sam." The actual meaning in the local dialogue might actually be: "May the couple live in a united state until death; pity that the deceased Uncle Samir will not join us."

Result: another wedding party up in smoke.

To be fair, the CIA may rely on native speakers provided by the collaborating local government (likely the case in Yemen) or contracted local personnel. There is the risk, though, that at the operational stage the Americans may fall prey to misinformation intended to serve an agenda unconnected to the official mission at hand.

The blunt truth is that the NSA's vast data collection project has become an end itself - divorced from any reasonable and realistic policy purpose. Did it enable Washington to anticipate the army's coup in Egypt? No. Has it stemmed the flow of drugs into the U.S? No. Did it alert Washington to Putin's daring bid to pull Ukraine's President Viktor Yanukovych out of the EU's orbit and into Russia's? No. Did it see the large-scale movements of the Islamist militants who occupied Ramadi and Fallujah in Iraq? No. Did it succeed in trailing the Boston Marathon bombers? No. Did it uncover the scheme of international banks to manipulate LIBOR rates? No. Did it catch Edward Snowden?

The "Communications" Psychology

Those accumulating electronic communications wholesale are collecting anonymous communications of all kinds with little focused regard for person and circumstances. Location does count insofar that they have identified places where bad guys hang out. But so do non-bad guys. Determining who exactly is who may be costly, time-consuming or require resources (human beings in place) that you don't have. So you hit some of them anyway. In counter terrorism, as in turning the double-play, in the vicinity apparently counts. In banal circumstances, who the recipient of your communication is means little or anything. But in this setting that counts, counts negatively. Or you identify an important person, e.g. Chancellor Angela Merkel. What she says, and hears, on her personal cell phone may well be useful - for some purpose or other. So you listen in and record. The content is random; but when Ms Merkel finds out, the United States pays a price.

So why do it? Well, you do it because you can. Because the technology has been refined enough to aspire to tapping just about all electronic communications everywhere. The same feeling that leads people to climb mountains or plunge out of airplanes. There is the opportunity, the challenge and the rewards of pulling it off. In addition, resources are unlimited for all intents or purposes. Therefore, there is no incentive to prioritize, to discriminate, to confirm, to focus.
The NSA and CIA do what they please because higher authority - the White House, the Congress, the courts - have given them carte blanche. There lie the culpable parties. The movers and shakers of the intelligence world have no plan to impose a Big Brother totalitarian control on us. It is their lassitude, blinked outlook, parochial view of the world, and the absence of anything like a full appreciation of what it means to have custodianship of the country's well-being that is our undoing.

President Obama downplays the issue - now that he no longer can hide it. Last spring, he did suggest that there be a national "conversation" on the subject of security and liberty. That, in practice, translates into a brief flurry of disjointed comments by individuals using the electronic media. It soon peters out. The net practical effect is close to zero. Neither the Executive nor the Congress sees reason to curb the abuses of electronic spying. Their fear of the terrorist demons out there is matched by their fear of being accused by the Very Serious People of compromising national security. In recent days, the NSA has all but admitted that it is monitoring the communications of Congress itself. (The New York Times January 3, 2014)

Even this trespass on a privileged sanctuary considered sacred has not produced expressions of outrage or a conscientious attempt to rein in intelligence services that clearly have run amuck. Are they also monitoring the White House? There is no reason to exclude that possibility - given the agencies' omnivorous appetite for all communications data and the absence of discriminating standards. Has President Obama moved to find out? to make a definitive determination of what is being done and what is acceptable? All we know is that in the midst of these revelations about the 4th Amendment's being reduced to putty in the hands of our government, he has treated it mainly as a public relations challenge to restore undeserved "trust" in state intelligence agencies.
Last Friday, the President finally issued the long awaited new guidelines for government surveillance. They proved pallid even by the low expectations of those familiar with White House thinking. Their net effect on the comprehensive spying regime that has been revealed will be inconsequential. As per usual, he left some of the thornier issues to Congress to decide. The new thinking boils down to these proposed changes:

The United States will not "monitor the communications of heads of state and government of our close friends and allies." "Close" is not defined; presumably it does not cover Pakistan, for example. What of Brazil? Close aides of foreign leaders also are in limbo. Reports from Berlin make it clear that Obama has stonewalled German chancellor Angela Merkel in refusing to discuss a transatlantic pact of good behavior on electronic surveillance. (Der Spiegel International Edition January 15, 2014)

- In addition, we do not know whether the United Nations Secretary General, the European Union Commission, and the International Monetary Fund are still on the target list.

- Creation of a panel of public advocates whose assigned role would be to present public privacy considerations, such as he determines them, to the FISA court. In short, the advocate will have no specific mandate or authority beyond that of a kibitzer - devoid of any official prerogatives in the quasi-legal process than those the court itself deems suitable.

Actually, the envisaged position is less than that of a kibitzer since the latter comments on the on-going play of a hand and those comments/advice will shift from hand to hand. The advocate would not be given the opportunity to comment/advise on the particulars of a given matter brought before FISA (such as a request for a national security letter). Indeed, he may be denied access to the full file presented by the NSA/CIA/FBI, and/or the requesting agency may not provide the full particulars to the court itself - as has happened in the past. So, in effect, the so-called public advocate would be reduced to making the same general points about why FISA should keep in mind 4th Amendment privacy considerations. He might as well put it in a form letter that gets e-mailed to the court judges on each occasion.

- Bulk meta-data collection program by the NSA "will continue as it currently exists." Most of the data will be stored in a new facility that is neither under direct control of the NSA nor in the custody of the telecommunications companies, as many in his own administration have recommended. A request to the FISA court is required when the NSA wishes to access the data base for purposes not previously identified. A grant of permission allows the NSA broad discretion in picking and choosing the specific data it selects for examination. In emergencies, this judicial procedure may be by-passed.

Translation: the cookie jar will stay in the kids' room for the time-being. It may be moved to the pantry at some later date. They will be required to ask their parents' permission to dip into it. Once granted, they can take as many cookies as they like. In the past, parents' response to such requests has been 100% positive. In cases of extreme hunger, permission need not be received in advance for accessing the cookie jar.

- Effective immediately, the NSA will only pursue phone calls that are two steps removed from a number associated with a terrorist organization instead of three,"

- Obama rejected the recommendation of his special panel that NSA 'not in any way subvert, undermine, weaken, or make vulnerable' commercial software, or that the government cease using flaws in that software to launch cyber attacks or surveillance. Programs now in place to compromise security and privacy safeguards of It companies will continue unabated.

- All surveillance activities will be conducted without regard to "race, religion, political creed, national origin or sexual orientation...." - according to an official Executive Directive issued simultaneously with the President's speech.

A bizarre twist in the story was introduced on January 15 when Chief Justice John Roberts issued a public letter warning that some of the changes under discussion by the Executive would have a negative "operational impact" on a secret foreign intelligence court. The medium was Judge John D. Bates, a former chief judge of the Foreign Intelligence Surveillance Court, who urged Mr. Obama and Congress not to alter the way the court is appointed or to create an independent public advocate. Roberts argued that such an advocate should only be appointed when the FISA court itself determined that one was needed. He asserted further that any disclosure of court rulings, or their justification for expanding the powers of the intelligence agencies, was dangerous since it was "likely to promote confusion and misunderstanding." Obama agreed with Roberts on nearly all the points raised.

This remarkable, unprecedented intervention by the Chief Justice in a matter that falls clearly within the constitutional purview of the Executive and Legislature is troubling. The only authority that the Supreme Court has as to the constitution and workings of FISA is a single piece of legislation that gives to the Chief Justice the role of appointing FISA judges. There is no other constitutional basis for what Roberts has done in presuming to pronounce on matters of policy. Indeed, the purpose of the legislation that granted the Chief Justice the power to make those appointments was to ensure that individuals' judicial qualifications and probity should be the sole basis for selection, with politics and philosophy excluded. Instead, we have a hyper-activist Chief Justice with a strong bias toward expanding state prerogatives at the expense of individual rights arrogating to himself the right to pronounce on matters of grave moment that turn on constitutional philosophy, principles of public policy and political preference. Citizen John Roberts has the right, of course, to make known his views on any issue of national concern; but here he presumes to speak ex cathedra.

Neither the White House nor Congressional leaders have commented on this transgression.


If our national leaders are bent on avoiding a real debate on spying, surveillance and the encroachment on individual privacy, what of the American people? They remain disengaged and mute.