Thursday, January 23, 2014


Charlie Savage’s NY Times preview of the scathing review given the NSA’s surveillance program by the federal Privacy and Civil Liberties Oversight Board is focused, quite properly, on the questions the Congressionally-created Board raises about the legality, even the Constitutionality of the whole program.

A majority says, in a 238 page report that was released today, that the NSA’s reading of what Section 215 of the Patriot Act authorizes is completely wrong, and that the NSA’s actions taken under their self-generated power abuse the First and Fourth Amendments of the Constitution. 

“David Medine, the board’s chairman and a former Federal Trade Commission official in the Clinton administration; Patricia M. Wald, a retired federal appeals court judge named to the bench by President Jimmy Carter; and James X. Dempsey, a civil liberties advocate who specializes in technology issues,” Savage reports, want the open-ended surveillance of Americans’ “private” lives ended.  “But the other two members — Rachel L. Brand and Elisebeth Collins Cook, both of whom were Justice Department lawyers in the George W. Bush administration — rejected the finding that the program was illegal,” and want the it continued.

That important disagreement aside, the Times says, all 5 members agreed to 10 surveillance reforms that they want implemented immediately.

“Some of those recommendations,” Savage says, “dovetailed with the steps Mr. Obama announced last week, including limiting analysts’ access to the call records of people no further than two links removed from a suspect, instead of three, and creating a panel of outside lawyers to serve as public advocates in major cases involving secret surveillance programs.

“Other recommendations — like deleting data faster — were not mentioned in the president’s speech. And all members of the board expressed privacy concerns about requiring phone companies to retain call records longer than they normally would, which might be necessary to meet Mr. Obama’s stated goal of finding a way to preserve the program’s ability without having the government collect the bulk data.”

Pardon me, but what nonsense the Obama less-than-a-proposal is!  The tracking technology which has radically reduced any rational expectation of privacy should be kept intact, the President says.  OK by me, you can’t abolish knowledge.  But it is inexcusable that the President leaves the heart of the matter, governance, managing the deep-reaching surveillance technology, the limits placed on tracking, on recorded-keeping, on access, and the oversight to enforce the limits, to be figured out sometime in the future by somebody else.  Even worse are his choices for those somebodies:  the flip-flopping record-breaking persecutor of journalists and whistleblowers, Attorney General Eric Holder, or the Liar, to his Congressional and Judicial monitors, Director of National Intelligence Gen. James Clapper. Oy!  Or as my Grandma would have said, “Feh.”

Hey, Mr. President, what? are you tired or something?  Those decisions are for you.

Obama’s big problem – and it’s a whopper – is, too many Americans simply don’t trust his judgment.  That’s bad enough, but the President makes it worse by claiming that a mistrust that is personal to him extends to the American Government.

That institutional mistrust is real, and is another awful problem, assiduously cultivated, not just by a blame-shedding President, but by selfish 0.1%ers like the Koch brothers, who want government undermined like speeders want the highway patrol off the roads or rotten bond-selling financiers want to practice their manipulations without regulation. 

Rather than  fight for his citizens’ trust by making choices and sticking by them, the President coddles the mistrusters by suggesting, the data about them the government ordered gathered, to which it demands the option of immediate access, will be more private if the phone company or some newly created private company actually keeps it.

First off, if the data is there, and the government has the right to call it in when it says it must, what difference does it make where it puts the nozzle of its vacuum cleaner?  Typically, this whole discussion is a distraction, Obama’s “solution,” a diversion.

It is, at bottom, just more “contracting out” another vital government responsibility.  That worked really well for, didn’t it, and in Iraq and Afghanistan? 

There, poorly-paid soldiers learned their Army didn’t trust them with their generals’ security, preferring to hire much-better-paid private contractors.  Even several of the generals I talked with understood this undermined troop morale and cohesion. 

Also in Iraq,  I saw State Department efforts at public outreach destroyed by their security contractor cowboys and bullies.  Blackwater got rich; Iraqis got bruised or worse, and America got a black eye.

Sometimes, both soldiers and diplomats were needed to rescue contractors who hadn’t bothered to co-ordinate their missions -- or even their schedules -- with either the military or civilian chain of command.  And then there was the persistent corruption on the civilian side, between USG-selected American contractors and local sub-contractors -- literally a billion dollar business.

In building the healthcare websites, contractors consistently failed to meet standards or deadlines, then swept problems under the rug, until opening day left their lax overseers humiliated when nothing worked right.  Had the work been done within the government, by people who knew they would have to live with the results, not move on to their next assignment as soon as their contract ran out, more alarms would have been sounded, louder and earlier.

But, the Times’ Savage, like me, buries the lead, the big question: is the super-charged surveillance worth the trouble?  It sounds to me like his answer is no.  The report also scrutinizes in detail a handful of investigations in which the program was used, finding “no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”

If Big Data can’t see around corners, can’t prevent terrorist attacks, who needs it?

My answer?  We do.

It is true, all the surveillance in the world (which the NSA virtually has) can’t and usually doesn’t pre-empt what Don Rumsfeld brilliantly called, “unknown unknowns.”  There are too many grievances, too many weapons, too many opportunities.  Bad shit will happen.

But, if terrorism cannot be prevented, the costs of practicing it can be raised, and the NSA surveillance system should assist in that.  Even when it doesn’t prevent terrorism every “this time,” it can radically reduce the number of “next times.”

It’s no accident Al Qaeda followed 9/11/01 with literally years without a significant strike.  The World Trade Center and Washington attacks cost the group almost 2 dozen operatives, some with years of training and indoctrination behind them.  Each of the terrorists left behind a history, a trail of connections and associations, people who were taken off the board or driven into hiding and relative ineffectuality, because intelligence services could retrospectively identify them. 

And this was during the technological dark ages; today we’re in the renaissance of the digital dark arts, where the metadata of the multitudes can be scanned much more efficiently.

It will still be a difficult job, making sure that only relevant metadata gets collated for the right reasons, but it can be done.  And only government, not some designated private contractor, can be held responsible to do it right.

You would rather trust Google or the Phone Company?  Not me.

But even done right, no miracles should be expected.  No one consistently predicts the future.  Better understanding of the past, however, can change the future. The networking reconstructions the surveillance system can yield after a terrorist attack can defeat others still short of execution.

There was some good news in the Privacy Board’s report.  In its meticulous examination of NSA surveillance activities, the Board unanimously agreed, it found not a single case of misbehavior, of anyone’s privacy being gratuitously penetrated, not a scintilla of evidence that any snooper was cavalier about citizens’ prerogatives.  This is, of course, no more a guarantee of future behavior than the massive nature of the information-gathering inevitably predicts future misbehavior.

Let’s assume Barack Obama knows all of this, all the pluses and minuses, all the likely limits on success, not just the potential catastrophes of failure, the real risks and realistic expectations from NSA surveillance.  Isn’t it past time he talked honestly to us about where lines of conduct should be drawn?  Isn’t this his mandated Presidential role, what his predecessor called being “the Decider?”   

It is a tough job, but somebody does have to do it. 

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