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.

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