Monday, December 9, 2013

Surveillance & the American Mind: Deception as Policy


option3 is not just about the big picture.  The next four blogs address the current policy process surrounding the Snowden disclosures.   

The issues at hand include transparency, oversight, and effectiveness.  People who argue we cannot have transparency and security are mistaken.  After troubling articles in the earlier 1970's came out regarding intelligence activities then, Congress initiated the Church Committee in 1975 to re-position the nexus of transparency, American values, and effectiveness.  Now it's our turn.  But that's not what is happening in Congress.  

A Structured and Rational Inquiry

If we can't understand the policies and the programs of our government, we cannot grant our consent.

          Snowden, October

Americans today have very real enemies.  To quote current Iranian President Hassan Rouhani, "Saying 'Death to America' is easy.  We need to express 'Death to America' with action.  Saying it is easy."  That was in May; and he's not even a real terrorist.

The NSA needs to operate programs that meet SIGINT objectives and its mission - particularly given the real but "vanishingly small" risk of nuclear terrorism.*  In light of NSA whistleblowers, however, the Senate or House needs to establish a structured and rational inquiry - even if partially behind closed doors - into all NSA programs and computing platforms that operate in the domestic domain and make written findings - even if partially classified; the inquiry must free itself from the influence of the existing intelligence committees, which themselves need re-constitution.  All members of the body that produces this inquiry should have complete findings and access to the hearings.  Such an inquiry allows elements of the truth to coalesce throughout the entire Congress rather than remaining in the Executive, the Intelligence Community and the Congressional intelligence committees.

In the Congressional discussion of post-9/11 domestic surveillance, we have four primary parties: top NSA officials, intel committee Congress members, some of whom are brought off and others whom are perhaps hamstrung by Senate secrecy rules, non-intel committee Congress members who cannot get quality information, and the whistleblowers.

The real power brokers are the NSA officials and, to a much lesser extent, the whistleblowers; the former, however, benefit from the influence of propaganda and the true functional ideology in the US, discussed in part 2, Synthetic Terror.  The NSA is absolutely succeeding in avoiding a substantive exchange of information; we are witnessing the illusion of public policy - not the practice of it.  

Such an inquiry would pose at the very least a simple two-part question: what is the NSA doing in the domestic arena and what did it accomplish in doing so?**  Senators such as Mark Udall, Patrick Leahy, Ron Wyden and others have attempted to answer this two-part question in a piecemeal sense within the committees where they sit.  Any inquiry - wherever it arises -  faces tremendous obstacles.

Obstruction, Deception, and Failure 

Deception is a state of mind and the mind of the State.

          James Angelton, former CIA Chief of Counterintelligence

[H]aving dealt with the leaders of the intelligence community, not much surprises me.  They're in the business of secrecy and deception.  And unfortunately it carries over to their interaction with Congress.
          Rush Holt, US Representative, August

Such an inquiry involves obtaining information.  That is proving quite a challenge to the US Congress.  Various intelligence officials have patently avoided, circumvented, and obstructed truth, oversight (Congressional and judicial), and transparency.  

Intelligence officials lie and divert attention from the issue at hand.  Army General and NSA Director Keith Alexander lied about the effectiveness of phone record collecting.***  US Solicitor General Donald Verrilli likely lied to the US Supreme Court in Clapper v. Amnesty International regarding a) whether the NSA informed Amnesty International that it had been subject to warrantless wiretaps and b) "the role of 'about' collection under the FAA".  Although NSA Deputy Director Inglis has not publicly admitted it like Alexander and Director of National Intelligence James Clapper, he lied to Congress as well.  President Obama lied about domestic surveillance on The Tonight Show with Jay Leno.

Meanwhile, Obama's Review Group on Intelligence and Communications Technology aims to address "the risk of unauthorized disclosure and our need to maintain the public trust" - not NSA overstep.  Despite lying under oath about the surveillance of millions of Americans, DNI Clapper seemingly heads this group.  (Update: the fallout is still informative and reflects my larger claims; here is a piece by the amazingly well-informed Marcy Wheeler of emptywheel.)

US Representative Alan Grayson articulated it best: "Despite being a member of congress possessing security clearance, I've learned more about government spying on me and my fellow citizens from reading media reports than I have from 'intelligence' briefings...  In fact, one long-serving conservative Republican told me that he doesn't attend such briefings anymore, because, 'they always lie".****  Senator Leahy has reiterated this exact same point.

Intelligence committee members obstruct.  As Leaksource and others have suggested, officials on intelligence committees have earned a pretty penny protecting the intelligence industry and community from real oversight.  Anonymous aims to address this issue with #OpNSA.  (The money angle arises again in part 7, Policy Reform.)  As emptywheel blogged, Senator Diane, the Chairman of the Senate Intelligence Committee, went double Orwellian - promising a "total review of all intelligence programs" and then the next day watched over the mark-up of her own FISA Improvement Act, which patently strengthens the NSA's position.  Meanwhile, the House Intelligence Committee failed to share NSA documentation intended for 'all Members of Congress'.

Non-intelligence committee members cannot even get quality info.  Leahy and other lawmakers recently asked US Intelligence Community Inspector General I. Charles McCullough to perform an IC-wide review of Section 215 and Section 702 applications.  McCullough's response was that he did not have enough time or resources.  (He made a similar response to Wyden and Udall when they made an even more rudimentary request the year prior.)  Meanwhile, US Representatives Alan Grayson, Morgan Griffith, and Justin Amash have all faced obstructions  from the House Intelligence Committee.  

Judicial oversight has also failed.  A judge at the FISA Court, John Bates, despite his own reservations and knowing he could not retroactively authorize metadata collection, expanded it into the future.  According to top FISA judge Reggie Walton, the "FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.”

The disdain and/or failure exhibited by top intelligence officials and their oversight officials across government suggests that real transparency or oversight are not on the table.

Just as public relations experts manage the American mind, various US intelligence officials hope to manage Congress's view of domestic surveillance; in the latter case they use obstruction, diversion, and lies as propaganda would fail.  The post-WWII national security state has effectively infantilized grown men and woman in Congress in the same way that corporate propaganda has done so to the average American.  

Part 6, Congressional Failure, outlines how the policy process in Congress is failing in the face of this deception.

* Terrorists face "Herculean challenges" in making an effective nuclear bomb according to the Gilmore Commission, a congressionally mandated group researching nuclear terror and response capabilities from 1999 to 2003.  The likelihood of a nuclear terror plot is "vanishingly small" - to quote John Muller, political scientist, terror expert, and author of Overblown: How Politicians and the Terrorism Industry Inflate National Security Threats, and Why We Believe Them.

** A blunt and aggressive inquiry would cover each and every program and computing platform by name that involves Americans with respect to i) their purpose, technological domain, and operational timeline, ii) intended and actual targets, iii) recovered materials and analyzed materials, iv) related repositories, v) the involvement of warrants, vi) the role of suspicion, vii) the position of current judicial and congressional oversight, viii) legal justification, ix) the explicit financial costs and full economic costs, and ix) the strategic achievements and economic benefits.  

In truth, Congress needs to examine the entire US Intelligence Community and private sector surveillance; but that is nothing short of founding a research institute in and of itself.  Some topics include: modernizing the Electronic Communications Privacy Act, examining DHS Fusion Centers, and the use of Stringray by local police.

*** According to former CIA clandestine service case officer and and OSINT expert Robert Steele, Alexander is known to have "covered up and destroyed the ABLE DANGER discovery of two of the 9-11 terrorists prior to 9-11, rather than share them with the FBI".

**** One more story is both absurd and sadly funny.  In July journalist Justin Elliott at ProPublica filed a FOIA request to the NSA for emails between NSA employees and the National Geographic Channel.  The response he got was that "there's no central method to search an email at this time with the way our records are set up"; and that the system is "a little antiquated and archaic".

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