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The Ruling Class Consensus On Domestic Spying

From Barack Obama to Karl Rove, the ruling class is in unison: The NSA’s collection of data on virtually all Americans is essential to preventing you from “being blown to smithereens on your morning commute” – as the Wall Street Journal editorial put it.  In the words of General Keith Alexander, director of NSA, this surveillance has “helped to prevent” “dozens of terrorist events.” Later, the tally rose to “over fifty.”  Project Constant Informant, which tracks essentially all American phone calls, allows matching the account holder’s identity with each call’s precise location in time and place. Another, PRISM, gives access to all records of email, chat, photos, videos and file transfers from the servers of leading US internet companies. These programs stand between Americans and terrorists. Worries that they will be misused are misplaced or downright kooky.

This chorus’ authority depends on ignorance. Here are the facts.

Since our Intelligence agencies have an unbroken history of crowing about even tiny successes, using finely parsed assertions with zero evidence to impute multiple triumphs to programs publicized by a leak is prima facie evidence of insincerity. When (rarely) independent persons look behind such claims, they almost invariably find the Wizard of Oz.  More important, anyone who has followed telecommunication technology and intelligence during the past three decades can only scoff at the claim that universal collection of telephone externals and access to internet traffic can thwart serious criminals or terrorists.

In fact, the expansion of the US government’s capacity to intrude on innocent communications happened just as technology enabled competent persons who intend to hide their communications to do so without fail. This means that the US government’s vast apparatus is almost completely useless against serious terrorists or criminals, and useful primarily to do whatever the government might choose to innocent persons.

In sum: Ever since the 1970s, the art of code-making has surpassed the art of code-breaking – period. Hence, on the high end, anyone can purchase voice and internet communications software that are beyond the capacity of anyone to access without an electronic key. On the low end, anyone with a few hundred dollars can buy dozens of pre paid cell phones, each to be used to make or receive a single call and then be thrown away. NSA’s million square-foot facility in Utah, and all the antennas and computers in the world, are useless against that.

So, why has the US government invested hundreds of billions of high technology in these ventures? Inertia is the least of reasons. Despite the last sixty years’ vast changes in technology, the US government never departed from the World War II model of electronic intelligence: Collect everything you can and sort the wheat from the chaff. But, as noted, unfocused collection now yields only chaff. Forensic analysis is a partial exception. For example, an analyst in possession of telephone externals data from people who have taken no countermeasures and who have made calls while committing an act known to the analyst can reconstruct their movements and even identify them.

The fundamental reason however is the US government’s reluctance to make and stand behind judgments about who, specifically, may be legitimate targets of investigation. If collection is universal, the collectors don’t have to explain to others (or even to themselves) why they are targeting this person or group and not another. Possessing the data in secret, they can then decide in secret who they are really interested in. That flight from responsibility is also why, in 1978, the intelligence agencies pressed Congress to pass the Foreign Intelligence Surveillance Act (FISA), under which the agencies submit their requests for detailed targeting, in secret, to a court that decides ex parte and in secret.

In sum: the aftermath of 9/11, technology, inertia, and allergy to accountability gave the US government the capacity to capture and examine at will well nigh the whole electronic realm. It would very much like to do the protective job that President Obama and Karl Rove claim and may even believe it is doing. But there is no evidence that anyone has figured out how to sidestep the realities that prevent that.

It is not speculation to expect that these powers will be used for what they are indeed useful. To recapitulate: “Constant Informant” can find patterns of communication between people who are not trying to mask them, while PRISM makes everyone’s cyber activity accessible. This allows the US government to pick and choose and build cases for any reason against any person on whom it has such data. From Obama to Rove, our ruling class denies any intention of doing that. They cite the fact that focusing all that data onto on individuals is subject to approval by the FISA court.

But that court acts not just in secret, but ex parte – hearing only one side. FISA was intended to be a rubber stamp, and has been one. To anyone’s knowledge, it has never turned down any of the government’s thousands of applications.  It will continue to be a rubber stamp because there are no judicial criteria for what is and is not a legitimate national security concern.

The relevant question about the uses of the NSA programs, then, is simply “against whom, in the broad American public, is the US government likely to turn its animus? Alas, the ruling class has shown itself all too able to treat domestic opponents as public enemies. But that is another story.

Reader Discussion

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on June 23, 2013 at 18:05:17 pm

The march toward tyranny is fostered by a simple failure of distinction: that between scrutiny and accountability. It is reasonable to expect that activities involved with informational advantage would benefit from at least some degree of obscurity. No advantage obtains if all of the information available to one side is freely available to everyone else. Because of this commonsense principle, the presumption is that matters of intelligence and information gathering should enjoy at least some restriction on the scrutiny to which they are subjected. This principle is easily abused however and creates an environment for the evasion of accountability. Abuses can be concealed by appealing to the need for operational secrecy. This eventually creates a culture that is resistant to accountability and susceptible to abuse and corruption.

This phenomenon is not limited to national intelligence agencies. Judicially created limits on prosecutorial accountability foster an environment of overreach and abuse that is defended by vague appeals to public safety. The admitted misconduct of the IRS in politically biased enforcement is remarkable for the nebulous and ephemeral explanations of who is responsible.

Accountability is quite simply inconvenient to political ambition. When the adolescent notion that there are some things too important for principles becomes government policy, and plausible deniability the defining tactic, abuses of power naturally result. The deficiency of the FISA court is that it's "rubber stamp" nature makes it more effective in allowing government agents to evade accountability than it is protecting the rights of citizens. There is no right or freedom inherent to a free person that a politically motivated demagogue cannot cast as a public peril. Protecting those rights and freedoms requires constant scrutiny and demands for accountability on the part of those in a position to abuse or disparage them. Freedom does not flourish where people are subject to the powers of unelected, and increasingly unaccountable functionaries whose loyalties begin with the interests of the elites who appointed them.

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z9z99
on June 23, 2013 at 21:04:01 pm

[...] CODEVILLA: The Ruling Class Consensus On Domestic Spying. “It is not speculation to expect that these powers will be used for what they are indeed [...]

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Image of Instapundit » Blog Archive » ANGELO CODEVILLA: The Ruling Class Consensus On Domestic Spying. “It is not speculation to expect …
Instapundit » Blog Archive » ANGELO CODEVILLA: The Ruling Class Consensus On Domestic Spying. “It is not speculation to expect …
on June 23, 2013 at 21:39:05 pm

They are collecting not because of some nefarious plot. They are collecting because collecting is easy and intelligence work is hard. The NSA is an enormous organization. And it has to justify its existence. But the reality is that there really are not many terrorist plots to disrupt and nearly all of those are uncovered by old fashioned law enforcement. Moreover, to the extent the NSA can help, the work is really hard.

But what is easy is collecting. Anyone can build a database and fill it. So that is what they do. They do this because they are incompetent and don't know how to do their jobs and this is the one way they can think of to justify their existence.

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Image of John
John
on June 23, 2013 at 23:30:25 pm

I never thought I would ever live in an America where the NSA was spying on every single American. We need to be glad that Snowden came forward with this story. In these days of IRS Scandals, DOJ/AP/Fox Scandals, Benghazi Scandals, and scandals where the HHS Secretary is soliciting funds from the very entities she is charged with regulating, I do not feel Americans can trust their government. Personally, I believe information from the NSA metadata searches were used to benefit this Administration by revealing information about General Petraeus prior to his scheduled testimony to Congress. I also believed it revealed some information about Chief Justice Roberts that was used to get him to change his position on Obamacare at the last minute. We live in very troubling times. We have a government that threatens the God-given liberty and freedom that has enabled the USA to be such an exceptional country and a beacon to the rest of the world.

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Image of JoyO
JoyO
on June 23, 2013 at 23:32:37 pm

Well said. Keep the pressure up.

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Image of Nick Dranias
Nick Dranias
on June 23, 2013 at 23:36:38 pm

Anyone who trusts THIS U.S. Government under THIS Administration is a damned fool. They see Orwell's "1984" as an operations manual.

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Image of mac
mac
on June 24, 2013 at 08:44:39 am

If 'over 50' doesn't work you can raise that number to an infinite value - that's the great thing about numbers

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Image of bandit
bandit
on June 24, 2013 at 09:33:42 am

"This means that the US government’s vast apparatus is almost completely useless against serious terrorists or criminals, and useful primarily to do whatever the government might choose to innocent persons."

Oh, you mean like the "Gun-Control" laws? Imagine that!

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Image of WindRider
WindRider
on June 24, 2013 at 10:15:01 am

Never thought I would get to the point where I remember the Clinton administration more fondly than a republican one... But, then again, the Bushes are big government power types, and the dems (not all, thank you Senator Wydan) jumped on board with glee to accelerate government control....

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Image of brendan
brendan
on June 24, 2013 at 10:34:25 am

The reason such programs have traditionally been kept so secret is that if the target of eavesdropping or code breaking even suspects anything, they'll shut up or change codes and the intelligence bonanza will come to an abrupt halt, destroying any utility the program ever had.

By that logic, even if PRISM and these other programs had been producing an occasional bit of useful intelligence, that usefulness ended several weeks ago. Combine that with Obama's claim that Al Qaeda can no longer present a serious threat, and the justification for maintaining any of these intrusive programs evaporates. The only people they'll catch from here on out will be terrorists who are too stupid to strike a match without reading the instructions on the back of the cover. But blackmail on lawyers, congressmen, judges, and journalists is always useful, which at this point is the only possible reason to keep the program going.

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Image of George Turner
George Turner
on June 24, 2013 at 11:32:52 am

Not only is this an assault on the 4th amendment, it's an assault on private property. My computer is my private property. So is the copyrighted works I create with every email.

For those of you who thought the NSA/Snowden affair was news, you had been sleeping. Many, many people have been raising alarms for years that the spying is actually much worse than these leaks have lead you to believe. I personally have knowledge from 1997, when the NSA maintained rooms in many ISP's to vacuum up any email and web site visit records. This was done on ALL data going through the ISP. That data has been archived ever since, in places like San Antonio and now Bluffdale, UT. What used to be a retrospective look back at your past is now done in real time, thanks to $2 billion worth of hardware, software and facilities. They can now track anyone's location in real time, anywhere you are (as long as you have electronic devices with you, including your car, phone, laptop, etc)

This information will now be used against you. There are so many laws now, everyone is guilty of something. We are trapped until we come up with some technological fixes to restore privacy.

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Image of Concerned Citizen
Concerned Citizen
on June 24, 2013 at 15:43:09 pm
Image of mel
mel
on June 24, 2013 at 19:36:14 pm

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
That is the Sixth Amendment to the US Constitution.
The SUPREME Law of the Land
I see NOTHING there allowing for Secret Courts, in fact it seems to pretty clearly FORBID such institutions.
So; we have a rogue, illegal government with ZERO legitimate authority.
Plain and simple.

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Image of True Blue
True Blue
on June 24, 2013 at 20:07:46 pm

Moderation entails your evening meal!

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Image of Thomas Howard
Thomas Howard
on June 25, 2013 at 18:09:25 pm

To all of those people who invested in "smart phones", they should now be called "leash phones". Not only can they use the telemetry from these devices to locate you wherever on the planet you are, they can be used as spying tools to spy on people you associate with, and basically wiretap your life. To all of those who bought cars or installed with GPS capability, you aren't safe anywhere. So next time you get lost in a strange neighborhood, just call the NSA for directions.

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Martin Laun
on June 25, 2013 at 18:33:16 pm

They can use it to influence votes in the congress.

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Image of Bronxkid
Bronxkid
on June 25, 2013 at 19:31:41 pm

This is all part of the bigger Alinsky dream where every agency on every level is overwhelmed. So they're monitoring every word and keystroke. They will completely open the borders. Health care will completely collapse under the weight of 30 some million already here. Social services will also not withstand the never-ending load. They will disarm the citizens (now referred to as U.S. "people"?) and start dumping thousands of convicts into many cities. And last but not least, the IRS will have our feet up in stirrups while they steal what money we have left. After that, King Obama will take over the internet to "protect" us from outer space aliens. But not to worry--Muslims will protect us.

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sue parnell
on June 25, 2013 at 20:27:31 pm

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

At no time did the FISA court ever read this.

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Image of TomTom
TomTom
on June 25, 2013 at 23:31:41 pm

This is not an assault on the4th Amendment. It completely nullifies it. Criminal prosecution is necessary, failing that we need to follow Thomas Jefferson's 'from time to time' advice. NSA--did you get that?

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Okieturkeyhunter
on June 25, 2013 at 23:34:52 pm

The 4th Amendment apparently does NOT apply to 'our' government, it has been completely ignored and nullified.

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Image of Okieturkeyhunter
Okieturkeyhunter
on June 26, 2013 at 00:16:33 am

The only think I have to FEAR is the Government itself.

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Image of Tony Howe
Tony Howe
on June 26, 2013 at 11:39:06 am

My bullshit detector went off the moment our "free press" began telling us we had to relinquish some liberties in exchange for security. I read this crap in The Chicago Tribune, of all places. The Trib was edited by patriot Robert McCormick, who tried to expose FDR's treason in helping England start World War Two. The Trib has since been taken over by Neocon Leftists, so you can expect the usual Big Brother crap from now on. We have no real enemies, just economic victims and bigots we manage to instigate to terroristic responses to our meddling.

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Image of Bobby
Bobby
on June 26, 2013 at 14:58:48 pm

[...] dangerous individuals instead of screening everything from everyone? Liberty of Law makes a strong case that the information aren’t even effective against real [...]

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Image of Free Edward Snowden: The Smear of Snowden is 1984 made Real | Schola Stephaniae
Free Edward Snowden: The Smear of Snowden is 1984 made Real | Schola Stephaniae
on June 27, 2013 at 02:42:44 am

The highest priority of National Security is defending the Constitution of the United States of America with Life and limb, from enemies both foreign and domestic, whether we are in times of personal comfort or peril.

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Image of josh draken
josh draken
on June 27, 2013 at 14:54:20 pm

[...] been seeing here not just with the Fed but in the IRS and NSA scandals. As Angelo Codevilla writes, those NSA data mining efforts might really amount to something if the NSA had a clue what it was [...]

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Image of Ruling Class Without a Clue
Ruling Class Without a Clue
on June 28, 2013 at 10:21:25 am

[...] The Ruling Class Consensus On Domestic Spying [...]

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Image of NSA: Ruling Class Domestic Spies
NSA: Ruling Class Domestic Spies
on June 29, 2013 at 05:26:31 am

Big brother is here and his name is Twitter, Facebook, Zynga, MySpace, Bing, Google, Ask, etc.... ok, maybe not MySpace.

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Image of Dewey
Dewey
on June 29, 2013 at 06:29:39 am

[...] been seeing here not just with the Fed but in the IRS and NSA scandals. As Angelo Codevilla writes, those NSA data mining efforts might really amount to something if the NSA had a clue what it was [...]

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Image of Ruling Class Without a Clue – American Thinker Re-Blog | The Peanut Gallery
Ruling Class Without a Clue – American Thinker Re-Blog | The Peanut Gallery
on July 08, 2013 at 10:07:26 am

[...] via The Ruling Class Consensus On Domestic Spying | Online Library of Law and Liberty. [...]

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Image of The Ruling Class Consensus On Domestic Spying « White Rock Kitchens
The Ruling Class Consensus On Domestic Spying « White Rock Kitchens
on August 10, 2013 at 20:28:37 pm

[...] or Army War College Prof. Lt. Col. (USA ret.) Anthony Schaffer to ensure students are receiving all reasonable points of view from individuals who have served our country with distinction regarding NSA surveillance both of Americans and civilians in U.S.-allied [...]

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Image of Audit the Naval War College’s NSA Twitter “Warriors”! | XXTwitterWarCommittee
Audit the Naval War College’s NSA Twitter “Warriors”! | XXTwitterWarCommittee
on November 24, 2013 at 22:42:56 pm

[…] The Ruling Class Consensus on Domestic Spying June 23, 2013 […]

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Image of '@PhillipSmyth, University of Maryland-College Park’s ‘Spooky’ Hezbollah Watcher, and the Embarrassing Amateurishness of the U.S. “Intelligence Community” | XXTwitterWarCommittee
'@PhillipSmyth, University of Maryland-College Park’s ‘Spooky’ Hezbollah Watcher, and the Embarrassing Amateurishness of the U.S. “Intelligence Community” | XXTwitterWarCommittee
on December 06, 2013 at 20:01:26 pm

[…] Institute-based intelligence community critic Angelo Codevilla made in his June 2013 essay, “The Ruling Class Consensus on Domestic Surveillance“. Did I mention the irony that Prof. Codevilla is also attached to Boston University, where […]

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Image of NSA’s ‘Golden Age of SIGINT’ Ends With an Encrypted Whimper and CTOs/Hackers/Journalists Learning OPSEC/COMSEC | XXTwitterWarCommittee
NSA’s ‘Golden Age of SIGINT’ Ends With an Encrypted Whimper and CTOs/Hackers/Journalists Learning OPSEC/COMSEC | XXTwitterWarCommittee
on December 12, 2013 at 21:57:55 pm

[…] is an adjunct scholar does Schindler not mention him at all? Could it be that Schindler fears Codevilla exposing him as an academic lightweight and poor logician when it comes to framing arguments to rationalize the NSA’s ineffectiveness? Does Schindler […]

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Image of #FAIL to the ‘Experts’: Why Naval War College Profs. @20Committee John Schindler and @TheWarRoom_Tom Tom Nichols Don’t Deserve Your Respect | XXTwitterWarCommittee
#FAIL to the ‘Experts’: Why Naval War College Profs. @20Committee John Schindler and @TheWarRoom_Tom Tom Nichols Don’t Deserve Your Respect | XXTwitterWarCommittee
on December 15, 2013 at 02:44:05 am

[…] take PhDs I’m too chicken to debate regarding ‘The Ruling Class Consensus on Domestic Spying‘ for $700, […]

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Image of '@TheWarRoom_Tom Gets a Critique from a Lawyer – My Note to Hal O’Brien Regarding the Naval War College’s TeamNSA Duo and their Ducking of Boston U’s Angelo Codevilla | XXTwitterWarCommittee
'@TheWarRoom_Tom Gets a Critique from a Lawyer – My Note to Hal O’Brien Regarding the Naval War College’s TeamNSA Duo and their Ducking of Boston U’s Angelo Codevilla | XXTwitterWarCommittee
on December 15, 2013 at 02:53:02 am

[…] take “PhDs I’m too chicken to debate regarding ‘The Ruling Class Consensus on Domestic Spying‘” for $700, […]

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Image of '@TheWarRoom_Tom Gets a Critique from a Lawyer – My Note to Hal O’Brien Regarding the Naval War College’s TeamNSA Duo and their Ducking of Boston U’s Angelo Codevilla | XXTwitterWarCommittee
'@TheWarRoom_Tom Gets a Critique from a Lawyer – My Note to Hal O’Brien Regarding the Naval War College’s TeamNSA Duo and their Ducking of Boston U’s Angelo Codevilla | XXTwitterWarCommittee

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.