The House Intel Memo ignores more scandal than it proves, and it reveals only a small part of the investigative misconduct at play surrounding the election.
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.