Wednesday, May 21, 2014

Get out the Hoover: the NSA records phone calls as it nails shut the coffin of democracy

Three recent articles show not only how much the Security and Surveillance State has expanded in the last decade, but why the dangers of that expansion are largely going unchecked.
In the first, Glenn Greenwald, Ryan Devereaux and Laura Poitras report on further revelations from the Edward Snowden NSA document file – specifically that the NSA has taken its previous programs of spying on pretty much everyone (including Americans) by collecting their cell phone metadata to a new level.  They report that the NSA is actively intercepting both the phone metadata (records of calls to whom by whom from where) AND the call contents, which it stores in a play-back enabled form for up to a month:

The program raises profound questions about the nature and extent of American surveillance abroad. The U.S. intelligence community routinely justifies its massive spying efforts by citing the threats to national security posed by global terrorism and unpredictable rival nations like Russia and Iran. But the NSA documents indicate that SOMALGET has been deployed in the Bahamas to locate “international narcotics traffickers and special-interest alien smugglers” – traditional law-enforcement concerns, but a far cry from derailing terror plots or intercepting weapons of mass destruction.

Part of Greenwald’s reporting is, in keeping with his prior work, to call out the Washington Post, which reported on this program in March, but did not explicitly mention the countries being targeted.  Greenwald and his colleagues pull the veil back a little further, noting the program is active in the Bahamas, Mexico, the Philippines and Kenya.  They also report that the access to the phone systems was gained through a legitimate law enforcement activity, namely the Drug Enforcement Agency’s agreements with those countries governments that allow DEA agents to collect phone information to track suspect drug cartels.

The DEA has long been in a unique position to help the NSA gain backdoor access to foreign phone networks. “DEA has close relationships with foreign government counterparts and vetted foreign partners,” the manager of the NSA’s drug-war efforts reported in a 2004 memo. Indeed, with more than 80 international offices, the DEA is one of the most widely deployed U.S. agencies around the globe.
But what many foreign governments fail to realize is that U.S. drug agents don’t confine themselves to simply fighting narcotics traffickers. “DEA is actually one of the biggest spy operations there is,” says Finn Selander, a former DEA special agent who works with the drug-reform advocacy group Law Enforcement Against Prohibition. “Our mandate is not just drugs. We collect intelligence.”

Greenwald and his colleagues have, therefore succeeded in not just proving the NSA can store whole phone calls, but have made a lie (again) of the fact that US federal law enforcement agencies are NOT part of the massive Security and Surveillance State because they don’t “spy.”
One of the first reactions to this reporting came from Washington Post pundit Erik Wemple, who spent nearly all of his column today highlighting a squabble between the Post, Greenwald and Company, and Wikileaks over whose revelations really serve the public – i.e. who went far enough to help us understand what the real issue is here.  Wemple SEEMS to acknowledge that the Intercept Piece by Greenwald is on a more robust track then the WaPo reporting was:

The Intercept’s partial defiance of the NSA in publishing the names of four countries surely adds contour to the story of MYSTIC — the example of the Bahamas alone fleshes out various legal and diplomatic considerations involved in foreign surveillance. The more careful Washington Post version of the story was interesting yet unsatisfying: Absent a specific country, it was more difficult to reach hard conclusions on the program’s legitimacy, legality and efficacy. Those are the dangers of scaling back detail in consideration of security concerns. When asked if naming just the Bahamas as a way of explaining NSA capabilities would have been a tolerably cautious approach, Washington Post Executive Editor Martin Baron replied, “You make some assumptions here, but I’m not going to address them.”
There are also perils to The Intercept’s approach. It may have touched off a macho-transparentist scramble to out that one country whose secretness The Intercept genuinely wants to protect.

Whatever the outcome, each outlet apparently got the same pitch from the government: “We shared with both news outlets the very same concerns about risks to human life and national security,” says NSA spokeswoman Vanee’ Vines in a statement to this blog.

Of course, as one of Wemple’s more astute commenters noted, raising the issue of an internecine struggle for who got the “outing” right is a way to down play the significance of the additional reporting.

Likewise, David Frum’s column in the latest Atlantic Magazine seeks to divert attention from the real damage that NSA’s action do by trying to refocus readers on the NEED FOR SECRECY that obviates some of the issues Mr. Snowden’s revelations raise.  

Answering such questions is why states maintain intelligence agencies. Awkwardly, however, the very same imperatives that drive states to collect information also require them to deny doing so. These denials matter even when they are not believed.

Of course Frum is better at some in acknowledging that the NSA MAY well get out of line , but he seems to think that mechanisms exist to correct any missteps:

But the implications for national security are especially disturbing. In a world where danger comes as often from substate actors as from competing national governments, democratic governments need more and wider sources of information than before. Of course, the attainment of that information must be governed by law. If the National Security Agency breaks laws, corrective action is called for. But it’s not illegal, according to the most relevant Supreme Court precedent, for U.S. intelligence agencies to collect information on who connects to whom, provided they do not read the contents of messages without securing a warrant first. It’s certainly not illegal for agencies to intercept—and read—messages transmitted outside the United States. Herbert Hoover’s Secretary of State Henry Stimson famously closed the Cipher Bureau on the grounds that “gentlemen do not read other gentlemen’s mail.” Yet as Franklin D. Roosevelt’s secretary of war, Stimson would read decrypted communications with avidity.

I’m not sure what sort of legal corrective mechanism Mr. Frum envisions, but given that:

1) Congress has given the NSA, American telecom companies (AT&T, Verizon) and probably itself retroactive legal immunity for the spying reported by the New York Times as early as 2004; and
2) The Director of National Intelligence willfully lied to Congress, admitted it, and has yet to be prosecuted for it

I seriously doubt that we’ll ever see any legal corrective actions for the NSA’s over reaches.  That aside, the NSA also appears to have been lying about its desire and ability to collect phone calls themselves, which Mr. Greenwald’s and the Post’s reporting makes clear is not a technical issue so much as a data capacity issue (which the Utah Data Center will likely solve).  And again, now that the lies have been exposed, I suspect we’ll see little if any formal sanctions develop.

Where Frum really gets it wrong (aside from his misguided notions that this sort of spying is still in compliance with the Fourth Amendment) is that allowing Americans to know about this sort of spying is some sort abrogation of effective Executive Branch power execution that Protects Americans.  

As we have become safer, we have, in that very human way, increasingly begrudged the means of our safety. The intellectual and political pendulum has swung against national-security agencies—indeed, against the basic requirements of an effective executive branch, which are the same today as when Alexander Hamilton outlined them in “Federalist No. 70” in 1788: “decision, activity, secrecy, and dispatch.” Self-described reformers insist that the present-day U.S. government suffers from too much of these four elements. Since the 1970s, they have achieved great success in shifting government to be less decisive, less active, less secretive, and less able to move quickly—and not only in the domain of national security.

Again, I don’t know what planet Mr. Frum resides on, but “government” – if he means the Federal Executive Branch run by the President – is anything but “less decisive, less active, less secretive, and less able to move quickly.”  That Mr. Snowden had to flee the US after calling his own employers and the NSA to account is prima fascia evidence of that.  Equally importantly, conflating calls for the NSA to stop spying on Americans by hovering up every bit of electronic data they can get about us with equally strident calls to stop the effectiveness of other Executive Branch agencies (NOAA, NASA, HUD and DOT come to mind) just highlights how far we have really fallen in our national discourse.  The federal executive branch can be an effective protector of and advocate for Americans rights without undermining the social contract with those same Americans in the name of SAFETY.

America has one final shot to get this right.  If we don’t then we will be the enemy we used to spy on.  And that would be the most tragic legacy of 9-11.