Shot Across the Bow for NSA

June 26, 2014–If I were the National Security Agency I’d be very worried right now. Developments are accumulating that signal the end for its electronic dragnet against everyone. The spooks–and their Fearful Leader, General James Clapper–thought they had dodged the shot on eavesdropping. The public ire and diplomatic disaster triggered by the spy programs had indeed forced President Obama to order reforms, but in classic spyworld fashion the NSA seemed to be manipulating the reform efforts to secure even greater advantage. The order to divest itself of possession of citizens’ phone call data, in favor of communications companies holding the material for summon by warrant, had been cleverly redirected. Agency actions plus helpful misdirections to congressmen looking for advice on how to craft a law to reflect the new electronic monitoring regime had created a nifty synergism. Phone companies can be called upon for much more than mere call metadata, and NSA lawyers succeeded in revising the wording in the prospective law, for a definition of material serious enough to call for a search warrant, watered down to the point where just about anything would qualify. –Especially with its rubber-stamp Foreign Intelligence Surveillance “Court.”

That was yesterday. Today the spooks should be worried. This is due to the Supreme Court’s decision in the cases Riley v. California (13-132, 819c), and United States v. Wurie (13-212) decided on June 25. These were not cases that had anything directly to do with the National Security Agency. Rather they deal with privacy rights in the class of technology that is the focus of NSA spying. In both cases police departments accessed data from the cell phones of citizens stopped for other reasons and ended up with more serious charges. In the Riley case a stop for expired auto registration led to indictment for murder.

When the case was argued on April 29 of this year, the government maintained that a cellphone is not “materially different” than a wallet or purse, the same kind of pap the NSA has been using to allege that individuals have no interest in “business records” that embody their entire calling histories. Chief Justice John G. Roberts, writing for the majority in these cases, said of the government’s argument, “that is like saying a ride on horseback is materially indistinguishable from a flight to the moon.”

There are four reasons the NSA should be scared sh–l–s right now. First, this is the second time modern technology/privacy have come before the Supreme Court and the outcome is the same–decisions against expansive government interpretations of its power to intrude on citizens simply because of the form of technology involved. Next, in each instance the Supreme Court’s decision has been unanimous, 9 – 0. This is remarkable for a Court that has been divided on nearly every case. Third, it is only a matter of time until the entities involved in cases before the Court shift from police departments to intelligence agencies. In fact, just a couple of days ago courts in Oregon pronounced on a case of that sort, in which a citizen was convicted for terrorism in an FBI sting operation, induced to participate after monitoring of his cellphone. Cases like that are on their way to the Supremes.

Finally, the basic law–what the French might call a loi de cadre–that has been cited as the foundation for NSA’s dragnet expires next year if it is not renewed first. The “reform” silliness detailed at the top of this article forms part of a project to make changes in the course of re-authorizing the statute. Quite often legislators take positions on issues before Congress based on how they see the Supreme Court arrayed on the matter. The Court’s ruling in these privacy cases sends an explicit message to everyone on Capitol Hill. Smart fish will be more reluctant to bite on an NSA scheme to expand its powers while pretending to curtail them. Much more likely will be an outright repeal of this authority.

Ugly Image in Critic’s Mirror

June 15, 2014–Last week a very irate diatribe against Glenn Greenwald’s book on Edward Snowden and his leak appeared in the New York Times Book Review. From liberal columnist Michael Kinsley, I cringed as I read some of this–and I hoped it would go away. But I’ve seen yet more commentary on this very review since then, so now I think it’s become necessary to say something.

To set the context, Glenn Greenwald is the journalist who worked most closely with Edward Snowden. The latter gave his secret NSA material to Greenwald, filmmaker Laura Poitras, and a couple of other reporters, and they wrote and published the stories which brought the Snowden leak to the public. The book No Place to Hide is Greenwald’s account of his role, of Snowden the man, and his evaluation of the information Snowden has revealed. Much of Kinsley’s review is ad hominem. Greenwald is a “ruthless revolutionary,” Snowden a “political romantic.” The reviewer drags in Julian Assange of Wikileaks–completely uninvolved in this latest fracas–to call him a “narcissist.” Kinsley makes claims as to Greenwald’s procedures, and Snowden’s supposed goal of martyrdom. As an author myself I often confront the spectacle of a review that doesn’t go my way–and I respect the reviewer’s right to whatever opinion she or he may have reached. So I’m going to pass on the pyrotechnics of the Kinsley v Greenwald pie fight–except to say that it appears to me that Mr. Kinsley got himself so worked up over those aspects of his subject that he blinded himself to far more dangerous doctrines proposed in the course of his diatribe.

In the second paragraph of his review Kinsley jumps right in by asserting the world is complex, not simple, and that laws exist against both government eavesdropping on the American people as well as against leaking secret information. “You can’t just choose the laws you like and ignore the ones you don’t,” the reviewer wrote. The truth is, to quote Mr. Kinsley, “It’s not that simple.” It was  the government (of the people, by the people, and for the people) that first chose to break the law–and more than that, to obtain even more leeway by securing changes to the law, using false pretenses to reduce its vulnerability to criminal infraction.

The first question in “U.S. Government v Snowden,” as this controversy can readily be imagined, is which violation is greater, that of spy agencies trampling on the constitutional rights of all citizens while calling it protection–and legal to boot–or the infraction of the citizen who called out the government for its eavesdropping. Snowden has said, rightly, that he swore an oath to protect the Constitution of the United States, not any particular set of leaders or bosses. The president and all those other officials swore the same oath. The Nuremberg principles, which flowed from war crimes prosecutions after the Second World War, enshrined the proposition that carrying out the orders of a superior officer was no defense against a person’s commission or omission of actions that constitute crimes. Bottom line– the NSA and U.S. government actions are not so white, nor are Mr. Snowden’s acts so black, as Michael Kinsley would have us believe.

The central element in Kinsley’s indictment of Glenn Greenwald concerns the role of the press in publicizing Snowden’s leak. Here the reviewer lets the personal intrude on the institutional. Ask Michael Kinsley on any given Sunday his view of the Fourth Estate as a pillar of democracy and I’m sure he would say the right thing. But, unminded by his vision of Greenwald the revolutionary, here Kinsley writes “it seems clear, at least to me, that the private companies who own newspapers, and their employees, should not have the final say over the release of government secrets.”

In that alternate history timeline there is no purpose to a whistleblower, because only government decides what becomes known. There is also no democracy, for that exists only when a people have the knowledge to rein in their government.

Kinsley further writes that Mr. Greenwald, in citing evidence that the majority of citizens now agree on the oppressiveness of this eavesdropping, undermines his own argument. The ability to hold that opinion, the reviewer observes, shows that dissent has not been suppressed. But again, it’s not that simple. Citizens can hold the opinion they do because they learned of what the NSA is up to courtesy of the Snowden leak, brought to them by Greenwald and other journalists. Not Greenwald but Kinsley undermines his own argument.

Let us not forget that government, in the form of the NSA’s superior, Fearful Leader James R. Clapper, the Director of National Intelligence, lied to the public, through Congress, when asked directly about this same information. Fearful Clapper did so with no compunction, invented some mumbo jumbo about mental distraction to pass off this serious dereliction of duty, and even took the BS to a higher level by sending out his top consigliere to make the same claim.

These are the people Michael Kinsley would have as the arbiters of what citizens are permitted to know. Kinsley’s imagined America is not our country, it is the land of 1984. If that were to be abetted by an emasculated press it would be a tragedy. Personally I don’t think Mr. Kinsley really wants what he appears to have been writing about.

U.S. Intelligence Tied Up in Knots

June 8, 2014–Time for an update. I considered headlining with a question, “What Does Ruthenia Say to U.S. Intelligence?”–then the fanciful rejoinder, “You speak with forked tongue!”–but that was too facetious. I decided it’d be better to let the spooks get themselves into trouble directly. They’ve been very good about that lately, so good that you have to wonder what they are doing calling themselves “intelligence” agencies.

First let’s observe the antics of intelligence community top lawyer Robert S. Litt. The always entertaining consigliere to our spy chieftain, Director of National Intelligence (DNI) James Clapper, Litt has been working both sides of the street lately. Late in April the nation, along with quire a few other countries, celebrated “Sunshine Week,” a occasion that marks efforts to reduce government secrecy, encourage openness, freedom of information, and the like. Eager to obtain some official pronouncement, sponsors invited intelligence officials. Under pressure to get out in front of the public relations disaster that has been the NSA eavesdropping scandal, Fearful Leader Clapper handed this assignment to his consigliere. Lawyer Litt appeared at American University’s law school on April 20. This was the consigliere attempting to charm his audience.

Part of Mr. Litt’s good cop routine was where he declaimed that “These leaks have forced the Intelligence Community to rethink our approach to transparency and secrecy. We have had to reassess how we strike the balance.” He claimed credit for the ODNI on the website “IC on the Record.com,” where the spooks have been posting pieces of legal filings and decisions they have long kept secret. He repeated what General Clapper had said elsewhere–the spooks would have taken less heat if they had only been forthright about their eavesdropping. He concluded with three “principal steps” to be taken: high-level attention to the problem of overclassification, efforts at “proactive transparency;” and, the need for a commitment “to look critically at all potentially responsive documents” that could be released.

It sounded pretty good if you didn’t know the spooks’ real status. Most important, the statement that openness would have trumped the NSA scandal is not open to judgment because the spooks were confidently saying nothing on the assumption that secrecy would protect them. Once the Snowden leaks began to put surveillance issues on the table the spooks still said nothing. Mr Litt took credit for the “on the record” website as if it were the spies being pro-active for openness whereas the truth is that President Barack Obama ordered Fearful Leader Clapper to set up that site and pack it with the NSA legal papers. Odds are that Clapper objected to releasing those documents until he saw he had no choice except to do so.

A different measure of proactive transparency is the content of the intelligence community website. In fact, it contains no document of any nature other than what ODNI was directed to declassify. Contrary to some of the press releases on that very website, even on the eavesdropping projects there are no program histories, no progress reports, no inspector general audits, no cost data, no analyses of effectiveness; just the antiseptic claims of legal memos filed to the Foreign Intelligence Surveillance Court. More than that, the website page that deals in “oversight” contains nothing on the extensive congressional controversies ignited by the Snowden leaks, merely the response to one senator’s specific query, plus a series of items to suggest that officials solicited views on how they could protect civil liberties. There is an April report by a brand-new NSA civil liberties and privacy office which contains no analysis whatsoever of spooks’ behavior but reiterates claims the agencies have already made for why citizens should not fear the NSA dragnet. The section of the website that records officials’ public statements, for the man charged with civil liberties protection, contains nothing more recent than August a year ago, when he was claiming to the government’s Privacy and Civil Liberties Oversight Board that questions it was posing had already been answered by an anodyne (and boiler plate) briefing. The most recent entry for Fearful Leader Clapper himself was two months old.

This is the norm, not the exception. Take the CIA website. Five directors ago Porter J. Goss took measures to reduce CIA’s extent of contact with the public, including making its website less open. Michael J. Hayden, who additionally terminated most outreach by CIA historians, at least compensated by reinvigorating the website and posting his own speeches and press comments, a practice which Leon Panetta continued between 2009 and 2011. But David Petraeus shut that down right away. John Brennan has, if anything, closed the door even tighter. Today the “news” that merits a press release on the CIA site is its pathetic joke, in connection with its first twitter post, that it will not “confirm or deny” its use of those very words in that message. The “press release” previous to that was on May 22 and carried the director’s Memorial Day message. The most recent speech from the director dated from March 11.

If that amounts to proactive transparency I’m a fruitcake.

Meanwhile, Consigliere Litt worked the other side of the street. His speech asserted that “none of the leaks has shown that the government was engaged in any willful violation of law”–apparently constitutional violations do not breach “law.” The assertion ignores the conclusions of two review boards and a federal court decision and is, at best, arguable.

Mr. Litt excused NSA’s efforts to defeat encryption systems built into commercial software–a matter that is the subject of another law–with the glib comment that that’s what spy agencies are supposed to do. All of which makes it rather hard for U.S. high tech firms to convince their foreign customers that American-built equipment and our software are kosher. Small wonder that corporations’ cooperation with the NSA eavesdropping has evaporated faster than a plate of ice cubes in the desert sun, or that corporate officials, like Google’s chief of security, Eric Grosse, are saying, “No hard feelings, but my job is to make their job hard.”

Two days ago Consigliere Litt was back–in an appearance not noted on the ODNI openness site. Now he laments the “unquestionable loss for our nation that companies are losing the willingness to cooperate.” Mr. Litt is quick with the threat too: “sooner or later there will be some intelligence failure and people will wonder why the intelligence agencies were not able to protect the nation.”

The spooks are actively blaming the messenger, resisting any conclusion that their own spying, not the revelation of it by a disaffected employee, is what has damaged the nation. They would prefer to construe their parochial interests as the national security. I know I have written this before but it is more true with every passing day.

By definition every intelligence failure involves an inability to protect the nation, and if there is one element of commonality that extends across the board of these failures, it is the petty jealousies and private competition among the spy agencies, not the fact of whether or not the spooks are sucking up every single type of data that might be technically feasible. More often than not–and that includes 9/11– the data was in the system but the agencies didn’t share it. For 9/11 specifically (which we’ve discussed in this space before), the terrorists who would have been revealed by the NSA metadata, which at that time was not being collected, were in the system at least two other ways. Robert Litt’s invocation of the threat of an intelligence failure to justify intrusive spying is not only scaremongering, it is disingenuous.

So the spooks’ alleged privacy protectors tell us everything’s fine? Well, last week’s news was that NSA is pulling down photographs transmitted on the web, incorporating the ones good enough for facial recognition into its database–at a rate of 55,000 a day. I guess they don’t think that’s a privacy breach. Our new NSA chief, Navy Admiral Michael A. Rogers, hastens to assure the public that the database is only intended to look for foreign spies. Naturally that remains true only until it’s not. Ambitious leaders, unscrupulous investigators, all-important goals–any number of factors can combine to override supposed protections, exactly as happened the day after 9/11. It’s better not to have the temptation.         

Meanwhile, Fearful Leader Clapper, out of character for a brief moment, said this weekend that Snowden’s leaks have not been so damaging after all. Why? Because Snowden did not take with him so many documents as the NSA had feared. Edward Snowden has said that all along. The spooks did not believe him–or they used the larger number to magnify the alleged damage, hoping to obtain a better outcome from the scandal. One of the documents on the DNI’s openness website is the December 2013 preliminary report on the impact of the Snowden leaks. The review board “assesses with high confidence that the information compromise by a former NSA contractor . . . will have a GRAVE impact on U.S. national defense.” Reminiscent of the “declassification” of the now-notorious national intelligence estimate on Iraq’s supposed weapons of mass destruction, used to justify George W. Bush’s invasion of that country; the released “document” amounts to a few paragraphs out of dozens of pages of detailed argumentation. You could drive a truck through the redactions–and you can make a document like that say anything. Proactive transparency? More like spin-doctoring. All this is so far removed from the intelligence community’s vision of “speaking truth to power” that it’s embarrassing.

Whose Terror War?

June 3, 2014–President Barack Obama remains an elusive character, endlessly confounding. Just when you think he’s gone over the top Obama says something both wise and appropriate. Or, he promises the right thing and then doesn’t follow through. Months ago, Mr. Obama noted that the use-of-force permissions Congress passed in the immediate aftermath of the September 11 attacks had become obsolete and he invited a national debate on war authorities. After that, nothing. In another instance, the president promised transparency in his actual uses of force. But, aside from briefings to congressmen when drones are used the war he is waging remains entirely behind closed doors.

Obama did it again last week. The president went to West Point, where on May 28 he delivered the commencement address for the graduating class of U.S. Army officers. Aside from his declaration of an end to the Afghan war, which will be widely discussed, President Obama observed that “U.S. military action cannot be the only–or even primary–component of our leadership.” Equally astutely he went on to say, “Just because we have the best hammer does not mean that every problem is a nail.”

Then the president took off the other way. “For the foreseeable future,” Obama declared, “the most direct threat to America at home and abroad remains terrorism.” Listen to someone who has drunk the Kool-Aid: “Today’s principal threat no longer comes from a centralized Al Qaeda leadership. Instead it comes from decentralized al Qaeda affiliates and extremists, many with agendas focused in countries where they operate.”

Let’s unpack all this. America went to war after 9/11 against the perpetrators, Al Qaeda. That movement has been reduced to isolated remnants hiding in mountain wildernesses. Should have been “end of story” at that point. Instead we are now assured the threat is  the “al Qaeda affiliate.” What is that? Anything you want. Today we have intelligence chieftains and supposed technical experts earnestly insisting that because somebody from group x talks to group y, they are affiliates. The public is supposed to read “allies” and to understand them as a direct threat to the United States. At the margin, militant groups are “affiliates” simply because they have certain interests in parallel (such as fighting the governments of their countries).

Mr. Obama actually understands this nonsense. At West Point he said, conceded, that militants have “agendas focused in the countries where they operate.” But did the president draw the appropriate conclusion? No. Take the Syrian civil war–entirely focused on who holds power in Damascus: as it “spills across borders, the capacity of battle-hardened extremist groups to come after us only increases.” Spills across borders? I guess I missed the memo. The same is true in Indonesia, Somalia, Yemen, the Philippines, most of the places where there are active insurgencies today. In east and central Africa there are exceptions–but there too the focus has remained regional and has not aimed directly at the United States.

We are in more danger from the fights we are picking than from the militants with their agendas. Our so-called security “experts” consistently make two huge errors. First, they pretend to a monolithic enemy–much like the Cold War enemy–rather than a diffuse constellation of corpuscular elements with assorted (and sometimes conflicting) goals. Second, they reject the agendas the militants do have in favor of attributing international aims to them. This kind of projection is for advocacy. It is the opposite of sound intelligence practice.

The truth is the war on terror ended a long time ago. There was 9/11, then . . . what? Remember the last big terrorist attack on the U.S.? I didn’t think so. The bigger danger seems to be rampages by soldiers deranged in fighting our wars on terror or driven by religious beliefs to take sides where really that was not necessary. The number of Americans killed by terrorists in the entire time since 9/11 is less than were lost on that one day. Not just fewer but less by an order of magnitude (2,600 to 3,100 depending on what you count compared to 311 up to 2011). The number of Americans who died in terror incidents in the Obama years is also less–again by an order of magnitude (270 versus 41)–than those who perished under George W. Bush. And the number of Americans who were murdered over this same period? 180,000!

Between 2000 and 2010 there were 293 Americans who died as a result of being struck by a falling piece of furniture, television, or appliance. That figure compares well with total American losses to terrorism. In 2012 there were 410 citizens killed by police action. Just to make another startling comparison– the number of Americans who die every year from allergic reactions to being stung by bees, wasps, and hornets averages about 40. During Obama’s first term the number of American terrorism victims was 41.

Even if you take this straight up–at the international level–the problem of terrorism is not the huge crisis that Obama portrayed at West Point, or others have done in many places. For 2012, the most recent year for which I have the data, the top ten afflicted countries account for 83 percent of the worldwide total incidents, 91.5 percent of deaths, and 89.3 percent of those wounded. Six of the ten countries are those in which the United States has been at war. Thus our measures of the terrorism “problem” are now mixing together the outputs from warfare with those of terrorism as we conventionally understand it.

Walk away from the wars and “terrorism” diminishes enormously. For example, 11,098 persons worldwide died from terrorism in 2012. Subtract war casualties and the number falls to less than 3,500. Take out the civil war in Syria and deaths remaining are fewer than on September 11. Take out Nigeria and you’re under 1,500. That’s worldwide. All forms of terrorism. All countries. All conflicts, both nationalist and religious. –And only ten of the dead were Americans.

The data clearly show that the “terrorist threat” is localized, aims at local issues, and is being conflated with war. We are manufacturing the “war on terror.” As a real conflict that ended long ago. Let’s stop playing this game.