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The NSA Escapes Scrutiny

With Republicans now ruling Congress, any momentum for surveillance state reform has been lost.
Admiral Mike Rogers NSA director

Recent reports that the National Security Agency (NSA) appears to have installed a worm in computer hard drives that enables it to surreptitiously collect information, compartmentalize and conceal it, and later enable access without being detected have failed to produce much of a reaction in the media and from the public. This is possibly due to the complexity of the technology involved but it might also be because a certain fatigue regarding the NSA and what it has been up to has replaced the initial indignation about the violation of privacy rights. It may well be that most Americans now accept the fact that wholesale government intrusion into areas once regarded as off limits is a feature of post 9/11 life. That shift in perception might well be exactly what the White House has intended to accomplish, anticipating that it will be able to wait out the critics and avoid any meaningful reforms.

Most interested parties who have followed the debate over NSA bulk data collection are likely only dimly aware that there have been a number of panels and review groups convened to examine the NSA practices, most of which have concluded that the program should be eliminated on both civil liberties and effectiveness grounds. The most venerable and quite likely the most thorough was named back in August 2013 by President Obama in the wake of the Edward Snowden revelations. It was called “The President’s Review Group on Intelligence and Communications Technologies” and was intended to examine what reforms might be necessary to respect personal liberties while at the same time protecting national security. The stated intention for convening the panel was to restore public trust in what the White House was doing by way of the NSA.

The panel consisted of former national security official Richard Clarke and ex-CIA Acting Director Michael Morell as well as three lawyers who are currently professors at major universities: Geoffrey Stone, Cass Sunstein, and Peter Swire. Sunstein also served in the Obama administration as director of the Office of Information and Regulatory Affairs while Swire was the chief privacy consultant in the Office of Management and Budget under Bill Clinton as well as under Obama.

As is frequently the case with government commissions and boards, a clear majority of the panel consisted of legal and security experts who themselves were on intimate terms with the government and are not known to be critics of its policies. Cass Sunstein’s wife Samantha Power is the current U.S. Ambassador to the United Nations and Sunstein himself was a supporter of George W. Bush’s military commissions. Peter Swire worked for the Clinton and Obama administrations while Richard Clarke was a national security adviser in both Republican and Democratic White Houses and was notable for running around “with his hair on fire” warning that something was coming shortly before the 9/11 attack. Geoffrey Stone was the only panelist with no senior government affiliation. He is a Law Professor at the University of Chicago and serves on the board of advisors for the American Civil Liberties Union. In 2006 he endorsed the view that the NSA surveillance program was “unlawful.”

In hindsight it is illuminating to review what the panel concluded and what has actually taken place. The five participants came up with 46 recommendations, all of which were approved unanimously. They are described in a 239 page unclassified publication, “The NSA Report: Liberty and Security in a Changing World.” The key judgments fall into three separate areas. The first was the bulk collection of the metadata itself, which was done by the NSA after 2006 by virtue of a blanket approval from the Foreign Intelligence Surveillance Court (FISC). The panel recommended that a third party rather than the government itself should hold the data base, that querying the information would require a court order, and that the data be held for only two years instead of five.

The second issue was the National Security Letters, which were authorized post 9/11 for the FBI to obtain personal information on suspects. The letters are classified secret but they require no judicial oversight and go directly to the source of the information, which in turn is not allowed to reveal to the suspect that he or she is being investigated. In practice, the letters were widely abused and only rarely related to actual terrorism cases. The panel recommended that the letters require a court order but the FBI objected that such a move would make the process “inefficient.”

The third broad area of inquiry was the Foreign Intelligence Surveillance Court (FISC), which was founded in 1978 and in theory limited the government’s ability to intercept communications in the United States without probable cause that there was a possible espionage connection. In fact, however, the court became a rubber stamp for government action, rarely challenging or even examining the case being made. The panel recommended that the board create a privacy and civil liberties advocate who would be able to challenge the government proposals.

So what happened? President Obama agreed that the metadata should be held outside the government but has recently reneged, arguing that the proposal was unacceptable for both “legal and practical reasons.” The recommendations to require a court order to access the database and to reduce the time information can be held are in limbo, part of the legislation on NSA that is stalled in Congress pertaining to the USA Freedom Act which is unlikely ever to emerge now that the Republicans are in control. The White House also rejected requiring judicial action to issue a National Security Letter and made civil liberties advocacy to the FISC dependent on the court itself asking for such participation.

So nothing has changed and even if one instead evaluates the programs purely as a possibly necessary evil, collecting information to keep us safe, the result has to be questionable at best. When the panel examined the evidence it was determined that the metadata program, for all its expense and intrusiveness, had in 2012 queried only 288 phone numbers, which resulted in 12 actual leads, none of which helped prevent a terrorist incident. Indeed, in all the seven years that the program had been running prior to that time no terrorist attacks were prevented because of it. The NSA and White House argued nevertheless that the program had to be preserved because it might be needed in case a major attack were to be planned in the future. The panel bought into that argument.

The panelists agreed in their report summary that it would be wrong to wholly trust either elected or appointed government officials. But at the same time all but one of them had previously held high-level federal appointments and were comfortable with how the bureaucracy functions. They apparently were accepting of the principle that the government exists to serve the people and will generally be inclined to do the right thing. Quite likely they were mistaken in that presumption, possibly because their own self-esteem derives in part from their federal employment.

In reality, any government’s first imperative is to stay in power and it will reflexively do whatever serves that interest, no more, no less. In this case it was essential for the White House to be seen to be doing some housecleaning relating to NSA. Appoint a distinguished panel and mission is accomplished no matter what the group concludes because the findings are largely irrelevant and can be ignored or circumvented, which has been the case with the “The NSA Report.”

There should also have been more serious concern regarding the federal government possessing the ability to invade privacy at will even if certain ameliorating mechanisms are put in place to manage that capability. If government is given a tool that it can use to gain information it will use it and it will actively work around any limitations placed on its use. And then there are the political benefits derived from big government. Large programs cost many billions of dollars, involve thousands of jobs, and are frequently justified due to internal government dynamics even when they fail to perform. NSA spying as an element of the national security surveillance state is like a genie that has been let out of the bottle. There is no simple way to put it back inside and there are all too many on the outside who, for many reasons, welcome its continued presence.

Philip Giraldi, a former CIA officer, is executive director of the Council for the National Interest.