Wolves in the Fold: FBI = NSA = 1984

February 26, 2016–This is major league serious business. I might observe how tiresome it is to have to go back again and again to these issues over government access to private communications of citizens, except that the issue is way too important to be left to government officials. Like the hammer seeing only nails, if you’re the FBI every telephone is a potential gateway to a crime (so you need them all). Weren’t we in this exact same place two years ago with the National Security Agency? Let’s review the bidding.

James B. Comey, the FBI director, won big points in my book a decade ago when he stood up to White House thugs trying to strongarm the Justice Department over the NSA blanket surveillance program Stellar Wind. But he’s blown it all now–and is plenty deep in the Big Muddy–with his dogged bids to saw out a back door into everyone’s private communications. In The Family Jewels I documented at some length the government excesses this kind of thing leads to. Edward Snowden, practically moments later, revealed NSA programs–starting with Stellar Wind but including a lot more–that were doing just that.

The NSA used to rely upon the FBI as front man. That is, if NSA wanted some access it would prevail upon FBI to open an investigation and make applications to the FISA Court in its own name. After the judges approved the warrant the agencies would share the take between themselves.

In one sense the current mess about access to the San Bernardino murderers’ phone is a replay of that. The ink was hardly dry on the NSA’s stuck pig squeals that denying blanket eavesdropping would emasculate it–followed by the tech companies’ promises they would add encryption–and the cosmetic “reforms” President Obama enacted–before the FBI started complaining about its iphone access. (Or, more properly, about its diminished ability to wiretap.) Director Comey began this drumroll long before the San Bernardino murders. To say, as he still did yesterday in front of a congressional committee at an annual threat hearing, that this is all about one telephone, just boggles the mind.

It is possible that Comey (and the FBI) really believe this is just about one phone. Naturally, that strains credulity, but of course this is the FBI, the government agency which spent multi billions of dollars and took over ten years to fail at the simple task of getting all of its employees onto a common computer network.

The bit from Comey about The Bureau not being able to look itself in the mirror, etc., if it could not give the victims’ survivors good answers is well-meant but it is devised to pull at heartstrings. FBI does not need iphones to obtain the evidence it needs for good answers–that it has already collected. The San Bernardino murders are past us, so no current law enforcement objective obtains. Even the intelligence potential of these iphones is minimal. These were not people talking to ISIS strategic commanders, nothing beyond minutiae stands to be revealed. There is no trial or indictment for which to collect evidence either.

The only purpose for which this access is relevant is for the future–which means, the future being unpredictable, and all–the potential for access to every iphone.

FBI mavens claim their demand for access to the San Bernardino phone is unique and can go no further based on the notion that Apple can write a “back door” (datamining) program and this would be installed in just the single phone by use of a maintenance access code unique to that phone. The Bureau seemingly does not understand that all iphones are identical, their operating systems also, and the back door program would be too. The only protection left to the individual is the maintenance code. At the point in the future when any of this becomes relevant, the precedent for tech companies yielding their maintenance codes to government inquisitors will already have been set by the “San Bernardino phone” case.

You can see how insidious this is. It is Apple executive Ted Cook, not the FBI who is right–this is about the future, not the San Bernardino case. That’s the only way it makes sense, and the only explanation that accounts for James Comey’s drumbeat about encryption that starts from before the San Bernardino murders.

This is the place where I have to disagree with columnist David Ignatius of the Washington Post, who writes in today’s issue that “the basic problem” with Apple’s position is that “a private company and the interests of its customers should prevail over the public’s interest as expressed by our courts.” Ignatius is an experienced and acute observer of the security agencies, but here he carries their water.

Here Apple (and its customers) are only surrogates for the public. It is the public that is the real target. That Apple stands in the place of the citizenry is purely a function of the type of hi tech equipment involved here. As for the expressions of our courts, Ignatius knows better. Courts, in particular at the district level, have as much resilience for standing against national security claims as ice cubes in an oven. That FBI would obtain a court order was perfectly predictable. To represent that as a considered judgment is short-sighted. One need only look at the judgments of our supposedly conscientious Foreign Intelligence Surveillance Court to see the legal system stretching ancient precedent to justify modern intrusiveness.

The intrusion is a Constitutional matter, and the answer has been there all along in the Bill of Rights. The Fourth and First Amendments prohibit intrusive surveillance, individual or mass, in any form at any time. End of story.

Or not. It won’t be the first time myopic self-interest or security hysteria have breached the walls of constitutional rights. The wise citizen will take measures to avoid intrusive surveillance. For me, I am inclined to take my typewriters out of storage. I understand the German intelligence service BND is doing the same. Decades ago the NSA spent millions (probably now billions) figuring out how to recover the text printed with a typewriter ribbon. I bet you they have now lost that skill they once had.

 

FBI/NSA/KGB: Obama Crosses the Line

February 20, 2016–President Barack Obama dropped his veil this week, lending White House support to the misguided and dangerous push from James Comey, the FBI and Justice Department, and law enforcement generally, to obtain entry into individuals’ private information. This time we’re not talking phone numbers, “metadata,” and private records–although that is the excuse. We’re talking about nothing less than the creation of a tool that will permit 24/7 surveillance of anyone, anytime, in real time as well as in retrospect. This is scary, ghastly, sinister, put on it any adjective you want.

Readers of this space will know we’ve been following the electronic surveillance issue. We’ve commented in the past about how our fearful leaders– no longer just James Clapper the DNI, but Comey the DirFBI, John Brennan the DCIA, and Mike Rogers the DirNSA–have spoken with forked tongues. Barack Obama made plenty of concessions to them, and this week the White House went all in. Obama has drunk the koolaid. We’re headed toward abuses of the sort documented so sordidly in The Family Jewels.

Let’s dispense with the foolish excuses first. Ostensibly the FBI needs cellphone access to the devices used by San Bernardino murderers Syed Rizwan Farook and Tashfeen Malik as part of its investigation into their December killing spree now understood as an ISIS terrorist attack. Farook and Malik were killed in a shootout with authorities within hours of their attack. They are not going to be shooting anyone now. Nor does the FBI need evidence for a trial. In terms of linking the two to Farook associates, the FBI seized direct evidence with a search warrant just the other day. The phones will be no help there.

The New York City Police Department entered the ring on Thursday with a claim that it has been denied access to some 175 communications devices. Sounds like a lot until you put it into the context of how many cases the NYPD has open at the moment.

The real questions are proportionality and privacy. Authorities want to use these cases as a lever to force the technology companies to furnish them tools with which they can access all manner of devices. In the San Bernardino case the Apple Corporation is resisting, including resisting the court order the FBI obtained.

The Department of Justice snidely asserts that Apple is using its resistance to the FBI as a marketing tool. Maybe that’s true–but the term “marketing tool” applies only because of previous actions of both the FBI and NSA, which violated the privacy of millions of individuals everywhere. Apple and other corporations woke up to realize that, absent the installation of encryption, their products were on the way to the junkpile.

Apple’s stance may be bogus, but the security agencies are being positively mendacious. There is little investigative value to be gained from the phone devices at issue in this court order. But there is enormous value (not investigative, but intelligence value) in gaining access to the backdoor software that will enable entry into millions of devices. That is, until the world abandons American-owned technology corporations in pursuit of ones which offer more secure products. Here’s where proportionality comes in: at issue is the record of every person’s contacts, the record of communications, the texts of messages sent from iphones or texting, the apps, the record of usage, increasingly bank records and other financial information–the Big Enchilada.

That’s way out of proportion to what the FBI can discover from Farook’s iphone.

You want to make America great again? Stop the hysteria, drop the pretense, tell the truth, restore privacy. The security agencies’ present course is an invitation for some very large businesses to leave the United States, impoverishing us all the more.

Big Brother Almost Won!

September 24, 2015–The story of what happened with the National Security Agency’s massive domestic eavesdropping program just keeps getting blacker, even as it comes into better focus. Today’s entry in the NSA sweepstakes concerns what we learn from a new redaction of a review of the program codenamed Stellar Wind that resulted from an investigation by the inspectors general of five agencies. A more heavily expurgated version of this document had been declassified a while back, but the New York Times sued to get the full report released. Among the details in the latest version are ones that should make your skin crawl. During George W. Bush’s presidency, Big Brother almost succeeded in extending his umbrella across the land–and I don’t mean simply the big ear of the NSA.

Stellar Wind is the real name for the so-called “President’s Surveillance Program,” the innocuous-sounding name someone dreamed up when news of the NSA surveillance program leaked midway through Bush’s years and the administration scrambled to defend and extend it. I wrote about this at some length in my book The Family Jewels. We generally understood that Mr. Bush had approved the eavesdropping a couple of days after the September 11 attacks, that it aimed at terrorists, that he re-approved it every 45 days. There was a remarkable confrontation in March 2004 at George Washington University Hospital, where Attorney General John Ashcroft had gone for treatment of pancreatitus, and White House officials (chief of staff Andrew Card, top lawyer Alberto Gonzales, and vice-presidential counsel David Addington) went there in an attempt to induce Ashcroft to sign the latest renewal. Press accounts previously indicated that the dispute centered on NSA’s desire to widen its collection to cover all Americans. In the new declassification we learn that it was much worse.

The NSA program–like the CIA’s torture project–was based on faulty legal advice (in fact, the same faulty legal advice) from Justice Department lawyer John Yoo, with his imperial vision of presidential power. Once Yoo left the Department of Justice (DOJ) in the spring of 2003, his superiors looked at the legal advice underlying Stellar Wind and found it wanting. The problem was that there was a law that laid down conditions for what the NSA was doing and that Yoo’s analysis had wholly failed to take this into account. Yoo’s successor was not initially permitted to know of Stellar Wind and could not craft a new justification for it. Then Dick Cheney’s lawyer told DOJ it would have to justify the request before he would ask President Bush to bring the DOJ official into the circle of those who knew of Stellar Wind.

I note that because we’re seen Addington’s footprints before, all over both CIA and NSA Bush-era actions, and sure enough he’s got a central role here. Anyway, the problem in May 2004 began when DOJ found the NSA had already exceeded its authorities and was collecting beyond what the legal memoranda provided. Late the previous year DOJ officials had informed Addington and Gonzales at the White House that they had doubts regarding Stellar Wind. The White House lawyers bristled when DOJ officials asked permission to inform Deputy Attorney General James Comey. As it happened, even before Comey was formally brought into the circle he harbored doubts, which he talked over with John Ashcroft only hours before the latter had his medical emergency and went to the hospital. It was at that point, with Stellar Wind up for its latest re-authorization, that Alberto Gonzales phoned DOJ asking for a letter certifying that John Yoo’s (now discredited) legal opinions still applied. Top DOJ officials determined that the Yoo memoranda failed to accurately describe, much less justify, the NSA spying. The Justice Department refused.

At noon that day senior White House, NSA, and CIA officials convened to consider how to proceed. Vice-President Cheney told the group they might have to re-authorize Stellar Wind without the participation of the Justice Department. At that point the FBI director declared such a move would be a problem for him too. This was when the Bush people decided to have the meeting with congressional officials that Mr. Cheney makes so much of in his memoir (claiming Congress approved when he was doing)–when the White had been blocked from proceeding.

This is also the backdrop  for the rush to Ashcroft’s bedside, where Card, Addington and Gonzales pushed their way into the hospital room over the protests of Mrs. Ashcroft; and DOJ officials too rushed in to stiffen their boss’s backbone. The Justice Department officials got there first. Ashcroft told the Bush people that Mr. Comey was the man they had to deal with so long as he remained in the hospital.

At that point Mr. Bush’s subordinates left, and they presented the president with a re-authorization document the next morning that George W. Bush signed. It had no Justice Department certification, and there were three more big differences from previous iterations of Stellar Wind:

(1) the document asserted that Chapter 119 of Title 18 of U.S. Code was “displaced” by a president’s authority as commander-in-chief;

(2) explicit statements replacing language requiring some terrorism-connection for a telephone metadata connection with a stipulation the collection merely had to be in pursuance of the authorization document itself; and

(3) a disingenuous invocation of Attorney General Ashcroft’s support with an assertion that DOJ had approved similar authorizations in the past.

In the paperwork that circulated around this dispute is a memo from David Addington–the man who used to carry a vest-pocket copy of the Constitution in his jacket–saying that with this authorization President Bush had decided to reinterpret the laws of the United States.

It was at that point when the ranking officials of the Department of Justice, plus the FBI director, threatened to resign en mass if this maneuver was permitted to stand. Over the next few days President Bush met with Mr. Comey, a different renewal was crafted with the old terms, differences papered over, and the move begun toward putting Stellar Wind within some kind of legal framework. In many posts on this site I have argued that framework was unconstitutional, but at least it was not a direct usurpation of the legislative power of lawmaking in the United States, as was contained in the NSA renewal document of March 11, 2004. That document was the equivalent of a coup d’état. It would have ended constitutional government in the United States. Big Brother still has to wait.

 

Tantrum to Practical: All Grandfathers are not Equal

June 1, 2015–As we enjoy this brief moment while Big Brother is a criminal for spying on you, we also need to move on the next stage of this foolish security nightmare. Last week, in the run up to the crash of Obama’s misguided attempt to resuscitate the eavesdropping law the White House, ending with Barack himself, put out way overblown claims (as seems to have become de rigeur) for the necessity for this domestic spying–which can be linked to only one case since 2001, and that for merely giving money to a Somali group. Others late in the week, to include Fearful Leader Clapper, the DNI; and John O. Brennan, guardian of the torture report; mixed in their own rhetoric. On May 25 I wrote of this as NSA’s tantrum (“Toddler’s Grandfather: NSA’s Terrible Twos Tantrum”) because senior officials had begun to go around saying that even if their legal authority expired the NSA could go on spying on everybody because the authority is “grandfathered” into law.

Well, now we have entered that unhappy state of entropy and it’s time to determine what, exactly, “grandfather” means. I am no lawyer, but I am a pretty fair wordsmith and I’m here to say the NSA’s trying to eat its cake after having it too. If they can go ahead spying just because, once upon a time, the authority existed (even though now it doesn’t), that’s way out of bounds. By that measure prohibition still exists because once it did. The death penalty remains in effect everywhere it has been repealed. Eighteen-year olds and women cannot vote because once they could not. The people who are trying to end abortion by passing legislation can forget it because that procedure was previously legal. Those who want controls on guns, same thing. Forget trying to enact EPA pollution standards. The Vietnam war is still with us because the repeal of the Tonkin Gulf resolution is meaningless.

That kind of approach effectively guts the power of law except for the first law on any given thing. This cannot be the meaning of law under the United States Constitution, nor the intention of the Founding Fathers.

A “grandfather clause” has to have some concrete current application in order to be valid. For example, my apartment goes co-op so I am in at the insider price, grandfathered so that cannot be denied to me.  With respect to NSA eavesdropping a proper concrete context would be specific investigations that were approved and in progress as of 12:01 AM on June 1.

As I understand it, our frantic eavesdroppers are now saying that “enterprise” programs are concrete contexts and therefore grandfathered in. This kind of investigation is a broad, open-ended, multi-directional inquiry, as in the phrase “we investigate terrorists.” The enterprise investigation bears the same relation to NSA surveillance as “signature strikes” do to the CIA/JSOC drone war. It’s what you do with surplus capacity that has nowhere else to go.  It’s a background tone for the sound system. This has nothing to do with concrete and pre-approved investigations.

That’s not all. In fact the blanket authorities timed out before June 1. The Foreign Intelligence Surveillance Court had set a specific deadline for NSA to apply for the next 90-day authorization of its blanket programs. The spooks did not meet the filing deadline. The authorization duly expired.

At 12:01 AM on June 1 there was no enterprise program to be grandfathered.

As has been noted in this space before, we seem to have entered a new Wilderness of Mirrors. National security is becoming the single greatest threat to democracy.

 

Barack Joins in the Tantrum

May 30, 2015–Here it is, about thirty-six hours and counting until the legal authority for several Big Brother eavesdropping activities evaporates, and now President Obama joins the fray. Does he, constitutional lawyer that he is, stand against such draconian measures, surveillance that violates the Fourth Amendment and chills the First? Does he follow the lines of the surveillance reforms he offered in a speech in January 2014? No, and yes.

I’ve written in this space before about Mr. Obama going out on a limb with his senior spooks, drinking their Kool-Aid on warrantless eavesdropping and collection against all citizens which has never yet stopped a real terrorist action. I also wrote, after the January 2014 speech, that Obama’s reforms were mostly designed to make the surveillance palatable to Americans. Here Mr. Obama has simply lined up with the security hacks–and they have become hacks–now lacking imagination or creativity, relying excessively on old ways simply because they are familiar. The hacks are throwing a tantrum (see “Toddler’s Grandfather: NSA’s Terrible Twos Tantrum,” May 25, 2015). Barack is joining them.

What the president said yesterday bears quotation: “Heaven forbid we’ve got a problem where we could have prevented a terrorist attack or apprehended someone who was engaged in dangerous activity, but we didn’t do so simply because of inaction in the Senate.” Unpack that language and you find that this is security for show, political cover. We should surveille all Americans using methods that have never been effective so that, after the next terrorist attack, we can say the bad guys could not have been apprehended with these methods ’cause we had that covered. (Of course, we can’t make that showing without the very kind of public investigation the spooks will fight tooth and nail, so what’s the point?)

Alternatively, Obama says we need this to “apprehend someone who was engaged in dangerous activity.” What is that? A door so big you can drive a truck through it. It was Ronald Reagan who said that “one man’s terrorist is another man’s freedom fighter,” and he was happy to paint black hats on those he didn’t like while pretending that vicious CIA-supported rebels–in fact the very islamist fundamentalist fighters whom we now consider the terrorist enemy– were echoes of our own Founding Fathers. “Dangerous activity” is in the eye of the beholder, and it is an invitation to even more arbitrary actions. Who’s to say what activity is dangerous? Security for show invites the arbitrary application of police power in ambiguous situations. Think of any of the police violence incidents we have been plagued now for months.

Sometimes Senate inaction can be a good thing. Let’s just let these harmful statutes expire. Write your senator and say so!

The Church Committee at 40

May 29, 2015– It has been four decades since the “Year of Intelligence,” 1975, when United States intelligence agencies were investigated in depth by a presidential blue ribbon panel (the Rockefeller Commission), the Senate’s predecessors to today’s oversight unit (the Church Committee) and a House of Representatives investigative panel (the Pike Committee). Nothing like this has happened since. The work of the Church Committee has been the most lasting. Denizens of the secret world mostly recognize that investigation, where, increasingly, even they profess not to have heard of the others. After four decades what is there to remember?

A lot, according to former members of the committee, who assembled in Washington yesterday under the auspices of the Brennan Center for Justice of New York University. Heading the group was Walter F. Mondale, who went from his experience with Church to become the 42nd Vice-President of the United States; and former U.S. Senator Gary Hart, another member of the committee, along with its chief counsel, Frederick A. O. Schwarz, Jr. Also on the podium was Loch K. Johnson, a Church committee staffer. A variety of other members of the committee staff were in the audience. The event proved a combination of reunion and clarion call.

The Church Committee investigation has been mentioned many times in this space and it was instructive to see that members and staff have watched recent developments in U.S. security policy with increasing concern. Vice-President Mondale says that he is a strong supporter of President Barack Obama and admires him very much, but that what Obama has done with U.S. intelligence has been disastrous. The government’s excessive reliance on legal arguments hinged upon so-called “state secrets” is deplorable. The Foreign Intelligence Surveillance Court (FISC)–which the Church Committee was instrumental in the creation of–has gone far beyond its intended role as a magistrate to become a court of general jurisdiction. Now in competition with other federal courts, and serving the intelligence agencies as their secret, special court with no outside interference, the FISC has become a runaway locomotive.

Senator Hart commented that the historical question is why no inquiry like that of the Church Committee had previously been carried out. “It was a hugely disillusioning experience,” he remarked. “There were dark sewers beneath the city on the hill” And the committee had to fight for every scrap of evidence the intelligence agencies eventually allowed them to see.

Outside the formal sessions Church committee veterans to a man (no women staff were at the event unfortunately) were appalled at the breakdown of legislative oversight of U.S. intelligence that has since occurred.

Under the rubric of strengthening intelligence oversight, eighteen of the Church committee veterans, including both Mondale and Hart, signed on to a Brennan Center policy paper that envisions using the Church committee experience as a model for a new investigation of the U.S. intelligence agencies. Their idea is similar to, although less comprehensive than, the inquiry I laid out in my book The Family Jewels and fleshed out in the paperback edition of that work.

It is increasingly clear that public concern over the excesses of our security services is growing. In my view the intelligence agencies actually have a great deal to gain from a new-type Church committee which examines their activities and is then able to reform them and to  pronounce them above board.

Toddler’s Grandfather: NSA’s Terrible Twos Tantrum

May 25, 2015–A few days ago it seemed as if we were finally set to emerge from this wiretapping nightmare. Congress is going on vacation so the spooks have to go home! (Only in America!)

The law containing the provisions under which the National Security Agency (NSA) claims authority to carry out dragnet eavesdropping of citizens is set to expire in six days–on May 31st. Congress had been working on a replacement bill, the so-called “USA Freedom Act,” which contained tighter definitions of what is covered, a more explicit requirement for legal review, a modicum of public representation at the Foreign Intelligence Surveillance Court (FISC), and a clause prohibiting NSA from holding actual custody of the telephony data. The House of Representatives passed that bill but it stalled in the Senate.

In the Senate there was a clash of preferences. That body’s majority leader, Kentucky Republican Mitch McConnell prefers the original, draconian surveillance rules. An unreconstructed Neanderthal, McConnell has apparently drunk the kool-aid and believes the dragnet eavesdropping, which cannot be demonstrated to have had much of an impact at all, is a vital tool for security efforts in the age of terrorism. McConnell would not let the USA Freedom Act come up for a vote. His preferred legislation, with its euphemistic “Section 207,” and “Section 215” alleged “authorities,” then went down in flames. McConnell could not generate the 60-vote supermajority necessary to pass this bill in the U.S. Senate. At that point everyone left for recess (vacation).

It looked like a new age was about to dawn. The old law expires. The new bill, not passed, is not in place. Net result: there is no legal basis whatever for conducting dragnet surveillance. McConnell is said to have demanded senators return early from vacation so they can vote on May 30th. But it is not clear that the task of passing a bill in the Senate, reconciling that with what the House has already passed, and getting the result to President Obama for his signature can be physically accomplished before the deadline for the law’s sunset.

Now enter the spooks. There is a trial balloon in today’s New York Times. The proverbial anonymous source now asserts that the sunset of the law does not matter. The alleged authorities for dragnet eavesdropping were “grandfathered” into law. In this view they cannot be undone!  Got that? Behind the scenes at the NSA, intelligence officers were questioning these programs on cost effectiveness grounds because they did not accomplish anything. A firestorm of public criticism followed Edward Snowden’s revelation of the projects. A presidential review group found reasons to question the eavesdropping (though it did not quite bring itself to knock it down), then a government watchdog panel went the whole distance. A federal judge found the law “probably” unconstitutional–and now a circuit court of appeals finds the baseline argument the spooks have been relying upon–that citizens have no interest in the privacy of their business (read phone) records–is without legal basis. The NSA skipped its most recent deadline for filing for the next FISC approval of its dragnet eavesdropping (meaning that its authority for this is rescinded). Now the law actually expires.  So all of this happens, we are told, and none of it makes any difference to the spooks’ authority to intrude on everybody? This is zombie law! 

More to the point, this is the behavior of a toddler in the terrible twos. Take away her toy and she throws a tantrum. In a democracy, when the security services decide they are above the law they have gone far past the line. Not only is the behavior immature and improper, it violates their very oaths to the Constitution. The time has come to clean house.

 

NSA: Death from a Thousand Cuts

May 9, 2015–The Court ruled, now it has ruled again. The United States Court of Appeals for the 2nd Circuit found unanimously that the National Security Agency’s bulk eavesdropping program is illegal. Section 215 of the USA Patriot Act, according to the Court’s opinion–called “blistering” in the Washington Post–cannot sustain the weight being put upon it by government officials who claim the provision authorizes their electronic spying on U.S. citizens.

Actually you read the argument here first, more than year ago, in a series of posts. Longer ago than that were some posts I did for the History News Network. In them I probed the meaning of the legal term “relevance” as it applies to the phone records the NSA was vacuuming up. For a very long time those posts were archived. Earlier this year I gathered them together in a longform post called The NSA Watch (you can find it in the “Product” section of this website). The 2nd Circuit’s unanimous opinion follows our reasoning precisely. The NSA’s “expansive concept of ‘relevance’ is unprecedented and unwarranted” according to the opinion. “At its core,” wrote Judge Gerard E. Lynch, lead author of the Court’s opinion, “the approach boils down to the proposition that essentially all telephone records are relevant to essentially all international terrorism investigations.” Meanwhile the application of such a standard equates to “an unprecedented contraction of the privacy expectations of all Americans.”

I recite this text and make the comparison to long-ago postings on this website to make this point: The reasons the NSA program is illegal were evident all along.

To cloak its actions the National Security Agency relied upon hysteria (and incomplete information) to quiet the doubts of Congress and mesmerize its captive judges on the Foreign Intelligence Surveillance Court, all the while hoping that if and when its actions were subjected to a real legal review, vague invocations of “terrorism” and “national security” would get NSA off the hook.

Let’s review the bidding– senior courts have found that the statute the NSA has relied upon to cover its domestic spying does not, in fact, authorize that intrusion. The law which contains Section 215, the specific provision at issue, is set to expire. The NSA–and the government as a whole–are unable to document more than a handful of cases, if that, which were assisted by its billions and trillions of intrusions. Most recently it was revealed that NSA officials themselves were questioning the viability of these programs on sheer cost-effectiveness grounds. Congress has failed abysmally in its oversight role.

But the real burden belongs at Fort Meade and with the NSA. The agency could have spared itself endless angst–not to mention fear of legal jeopardy and plain old-fashioned public ridicule. To repeat, the shaky legal rationale was evident from the beginning. Had the NSA simply said, “sorry, we made a mistake” and dismantled its offending program it would probably have earned some credit. Instead a constant procession of official attempts to justify the unjustifiable has left the agency in the position of dying from a thousand cuts of the knife. To put it another way, NSA is like a polar bear trapped on a rapidly shrinking ice flow that has broken off and drifted into the middle of the ocean.

–And by the way, some of the senators and congressmen who remain in thrall, trying to prolong this travesty, are the same people who tell us there’s no such thing as global warming.

Back on the NSA Watch

March 30, 2015–The wire news service Associated Press is reporting this morning that our spooks of the National Security Agency (NSA) have been, in effect, dishonest as well as disingenuous. Readers of this space–and those who have followed the NSA dragnet eavesdropping controversy–will know that the spy agency defended itself against the Snowden revelations by making a big deal about how important was the dragnet. The spooks indulged in a series of misleading claims about how many terrorism cases had been based on the mass recording of people’s phone connections, how many plots had been broken up due to this information.

The NSA claimed not just that national security had been damaged as a result of the public discovering that the government is watching people 24/7, but also that the United States could not afford to do without this intelligence. This assertion formed the basis not only for the agency’s defense of its illegal and unconstitutional surveillance, against Congress and national-level policy reviews, but of NSA’s appeals to President Obama to permit it to continue the eavesdropping.

Now the Associated Press tells us that months before the Snowden leaks, officials within the NSA themselves proposed to terminate the dragnet surveillance. The recommendation was based on the proposition that the eavesdropping yielded little intelligence of value while requiring substantial dollar outlays to store the data obtained! Attentive readers will notice that NSA officials here were making the identical argument to what many said following the Snowden bombshells, when the National Security Agency openly asserted the opposite–that the surveillance data was invaluable.

There can be no plainer illustration of the arrogance and complete lack of integrity of our intelligence services. The latest report again indicates that our spooks seek to preserve any program they are capable of implementing, not those spy programs that are producing valuable intelligence. This is not “national security,” it is pure posturing–on a level with the CIA’s attempt to keep open the option to resume torture even after the black prisons project had been revealed and President George W. Bush had closed the prisons and sent the detainees along to Guantanamo Bay. The worthlessness of a “strategy” built on a basis like this is palpable.

Legal authority for the dragnet surveillance expires this year along with the sunset of the legislation that created it, let me remind–on the basis of NSA misleading Congress then too. It is time to get rid of this albatross which continues to discredit America’s intelligence community.

The NSA Watch

January 3, 2015–In the first of a series of long-form collections, Prados here reprises his commentaries on the National Security Agency domestic spying and eavesdropping scandal. This selection includes commentaries posted from the end of 2013 through the winter of 2014, a period of time during which the NSA spying was found wanting by courts, presidential reviews, and a public privacy board. President Barack Obama promised reforms. These essays analyze the evolving scandal, providing background on individuals and issues involved in the controversy.

The collection is available as a product for a nominal fee from the “Downloadable” section of this website. It appears under several national security and intelligence categories.