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 healthcare.gov, 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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