By Michael Brenner
Americans have acquired a fondness for worlds of make-believe. These are not imaginative fantasies for entertainment. They are alternative realities that serve deep needs to escape reality. It is in the realm of public life and politics that this tendency registers the most pernicious effects. The unholy concert of politicos, the media and an unthinking public creates entire realms wherein fiction eclipses truth. Example: torture was done by "a few bad apples." Or, we must await the "verdict of history" to judge how our invasion of Iraq turned out. Or, America is besieged by hordes of crazed Islamist terrorists scaling the walls and dedicated to surpassing the horror of 9/11. Or, The Sniper salvaged American dignity and self-respect from that tragic fiasco. Or, that it was a brilliant CIA and valiant Seals who avenged a righteous America by storming Abbottabad to assassinate an infirmed old man in his bed.
This last is one of the threads of make-believe woven into the fabricated narrative about the Congressional psycho-drama this past week over electronic spying on Americans. That engrossing campfire tale has our noble representatives struggling to find the path of Solomonic wisdom that walks a tightrope between security and liberty. We awaited in suspense to see if the perilous feat would reach its goal. We agonized at word of the NSA being forced by obedience to the Law to shut down its all-seeing networks - thereby, for a few hours, leaving America exposed to the diabolical schemes of the bearded devils. The White House warned that we are playing "Russian roulette" with the country's very survival. (No one pressed the question of all six chambers in fact being uncharged.)
"I think Ben Franklin would've been proud of this outcome," said Sen. Martin Heinrich (D-N.M.), an Intelligence Committee member and co-sponsor of the United States Freedom Act - evidently confident in his knowledge of old Ben's taste in dark humor. Senator Patrick Leahy (D-VT), too, envisioned the founding fathers beaming proudly as the greatest deliberative body the world ever has known went through its paces. At the end, we are stirred into admiration for American democracy at work as the great surveillance apparatus stirs back to life in its fresh incarnation as rechristened by the sagacious bipartisan action of Congress. We all bow our heads in prayers of thanksgiving that we may be at once safe and free - insh'allah. (In that ecstatic state we can visualize the President and NSC members draining their cognac glasses in celebration and then smashing them into the fireplace as they contemplated the shivers of America's terrorist enemies now knowing that Clapper et al were back on sentry duty).
That all makes for one awesome production. Doubtless there will be a film adaptation immortalized in a script by Bob Woodward. Something like that will happen - even though it is a concocted yarn whose meaning has been twisted and whose significance has been vastly inflated. For the truth is that what Congress did, and what it did not do earlier, changes very little - and nothing of cardinal importance. The main effect is to give the impression of change so as to release pressure for reform that might really be meaningful. The base truth is that everything that counts remains the same. To entrench and to legitimate a system of massive surveillance that undercuts our privacy while doing nothing to secure our well-being. At the same time, it perpetuates the myth of an omnipresent, looming threat to justify the continuing erosion of civil liberties, the distorting of our institutions at home and our policies abroad.
Let's look at the false notes struck by this narrative.
Matters Of Fact
1. The so-called restrictions on bulk data collection apply only to telephone calls. All else is exempted: emails, Internet searches, social media, and info regarding each that is retained in our communicating devices.
2. The restrictions on real-time surveillance of telephone calls can be overcome by the granting of a warrant by the FISA upon request by NSA, FBI, Justice Department, CIA - not to speak of local authorities. That Court, over the past eight years, has refused only 11 of 33,900 requests. The judges, by the way, are handpicked by Supreme Court Chief Justice John Roberts who has jumped into the policy arena by declaring himself strongly opposed to any tightening of restrictions on how the court operates or on the NSA methods. The FISA court's attitude toward government spying on Americans has been generous to the extreme. Former lead judge of the FISA Court, John D. Bates, has campaigned vigorously on behalf of the status quo. He even objected to the extra workload of requiring that courts approve all national security letters, which are administrative subpoenas allowing the F.B.I. to obtain records about communications and financial transactions without court approval.
3. The specified targets may be organizations, groups and networks as well as an individual. In practice, that means each grant of surveillance power may authorize comprehensive electronic spying on hundreds or thousands or citizens.
Currently the NSA is overwhelmed by the billions of communications they register and try to catalogue each week. Long-term data retention only makes sense if there is a project afoot to exploit it systematically in order to control, to suppress, to penalize. There is no such Big Brother plan in place or on the horizon. NSA operations fortunately have instead been conceived and managed by fantasists and bureaucratic empire builders - as is demonstrated by Edward Snowden's leaks of their immense target list and their major intelligence failures.
The NSA certainly is highly competent about playing the games of bureaucratic and Congressional politics to further its organization interests. And certainly it has some brilliant technical minds -although apparently none as smart as Snowden. Moreover, their public relations work is first-rate - as witness their success in persuading the country that this outsized and directionless juggernaut is critical to defending America from the Evil One - i.e. "Terror" whose very modest concrete forms pale by comparison with the awesome images conjured by our leaders. What the NSC does not have is intelligent design, guidance or monitoring. The same can be said about its brother in counterfeit arms: the CIA.
4. The terms of the warrants allow for a two-step jump from the identified target to others whose suspect communications emerge from the initial combing.
Here is one hypothetic scenario. The NSA requests approval from the FISA court to collect the communications of the Arab-American Civil Rights League on the grounds that they suspect some dubious characters have been using its facilities. Over a period of months (is there a restriction on the duration of electronic surveillance under FISA rules), they register 1,000 communications. Using 'first hop' privileges they identify 250 persons whose own communications they wish to tap. Using "second hop" privileges they next identify a total of 1,500 more people whose communications they wish to tap. That makes a total of 2,700 persons whose telephone calls they are monitoring and storing. Each year, the NSC requests warrants from the FISA courts about 500 times. Hence, we can project more than 1 million telephone numbers now under surveillance for an indefinite period of time. For we should further note that once an official investigation is begun the records acquire the status of legal documents in a judicial or quasi-judicial proceeding.
5. There is an exemption for on-going investigations. The Patriot Act's Section 224, its "grandfather clause", allows active investigations that began prior to midnight on Monday to continue using the expired programs.They number in the thousands given the hyper-activism of our security agencies in identifying subjects for their attentions in order to justify vast capabilities and vast budgets. Those broadly cast investigations can go on for years. And all of this is secret.
6. Central to this week's political drama was the NSA's domestic Metadata collection program. The law now requires that telecommunications companies -- not the government -- hold onto the data stores. The act provides a 180-day window to make that transition, which effectively ends the current program. This is a distinction without a difference. Those companies have cooperated routinely with the Intelligence agencies - recent backtracking and protestations notwithstanding. It is hard to imagine turning down an "urgent" request for access - with or without a warrant. Once inside the system, the NSA or other agency will be free to do some rummaging.
7. The NSA coordinates its spying closely with Intelligence agencies of the four other English-speaking countries that participate in "Five Finger" alliance: the UK, Canada, Australia and New Zealand. Their data sharing does not stop at that acquired by legal means. They do each other favors by relying on a partner to circumvent domestic restrictions in any one of them. There are credible reports that NSA has assisted Britain's GCHQ in this respect. Both have assisted the German NBD in spying on German targets- as has been revealed within the past few weeks.
Therefore, the significance of last week legislation is undercut by this close collaboration. Britain's GCHQ is particularly active and technically advanced. They and the Australians, moreover, operate with only nominal oversight. That means that the NSA is privy to whatever communications they acquire and store. Some may well entail Americans who are exchanging some form of messaging with persons and/or sites outside the United States. This appears to be a legal grey zone. It is a very wide zone given the density of communications that overlap national jurisdictions and the implications of the "two hop" rule. GCHQ passes on the contents of a telephone call between a U.S. citizen and someone abroad, thereby allowing the NSA to pursue contacts of that American in the US twice removed.
So, in a pinch, the NSA can blink while one of these friends goes after a particularly juicy American target without waiting for the nicety of a FISA warrant. No one will ever know - and those who do won't care.
8. Sponsors of the Freedom Act trumpet a supposed breakthrough insofar as it mandates some small transparency from the secret Foreign Intelligence Surveillance Court. It vaguely affirms that the Court will be required to declassify a few of its tightly held opinions. Those are opinions explaining why a warrant request is approved - as they automatically are. There is no reason to expect any great revelations. After all, the essence of the FISA Court's reasoning is well known. We live in dangerous times - as witness 9/11; the government assures us that there is compelling evidence of dangerous persons on the prowl and plots afoot; the classified information upon which that assessment is made is persuasive - even though we have been granted only a glimpse of a brief summary; this Court cannot take on itself the responsibility of overriding the professional judgment of our public servants and thereby put at risk the security and well-being of the American people; blah-blah, blah. Judge Bates reflects the reigning philosophy of the FISA court in warning that greater public disclosure of unclassified summaries of court rulings would "likely to promote confusion and misunderstanding" among the likes of you and me.
9. The new legislation also allows the judges to appoint a "friend of court" to argue on behalf of privacy concerns. This does not mean that there will be adversary proceedings or a systematically examination of the case for a warrant. It simply means that there may be designated persons available to remind the FISA judges that privacy considerations should be taken into account in their deliberations. For all that is worth, they might as well prepare a form letter that is emailed to the Court every time that a request arrives on their computers.
We have created a monster. A Great White Whale that rapaciously stalks the electronic seas devouring all within reach regardless of species or nutritional value.
NSA's Second Coming is just the latest in the string of consecutive psycho-dramas by which we experience our collective existence. There will be a movie pretty soon - Apocryphal Now! It will need a name like that since within a few months the events it relates will be superseded by two or three other made for Washington psycho-dramas - and maybe some real dramas, too, as we are sucked into the vortex of the Middle East's collapse - a collapse which Metadata accumulated by our all-seeing government leaves us blind to recognize.