Tuesday, January 21, 2014

Three Problems with the President's NSA reforms

In the lawyer’s world, regulations are an ally. Guiding a reliable path towards a specific remedy, regulations offer order in place of chaos.

In the intelligence officer’s world, regulations are an adversary. Providing rigidity in face of dynamic and hidden truths, regulations present obstacles to answers.

In a democracy then, the key is to balance these two understandings. Regulations must be flexible enough to allow for the extraction of knowledge from complexity, and rigid enough to ensure a credible foundation of just, democratic order.

Last Friday, to the detriment of America, President Obama tipped the balance too far. He’s done so in three specific ways.

1)    Limiting the Intelligence Community’s ability to penetrate terrorist networks

‘‘Effective immediately, we will only pursue phone calls that are two steps removed from a number associated with a terrorist organization instead of three.’’

An invitation to the cut-outs.

Consider the following scenario. An Al Qaeda officer in Yemen makes a call to another individual in that country. That other individual then calls someone in Saudi Arabia. That individual then calls someone in Belgium. From today, the NSA can no longer chase down the phone data belonging to the subject in Belgium. Some claim that this isn’t a problem – that a ‘three hop’ rule allows for a vastly excessive drag net of irrelevant information. And on paper, they’re right. But in reality it’s just not that simple. For a start, such arguments ignore the fact that intelligence officers use a spread of information to drive their investigations – not simply communication linkage chains. In this context, by limiting the information flows to which intelligence officers have access, the move to a ‘two hop’ rule risks empowering terrorist cut-outs. Facilitators who, already Snowden-apprised of US intelligence monitoring, are astute to the need to protect the networks they serve. Providing another complication is Al Qaeda’s functional diversification into a growing number of affiliate and inspired terrorist networks. Take the Syrian civil war. As foreign jihadists return from that conflict to their respective home nations, some will do so in peace and others with an eye to terrorism. Facing the later elements, the need for reflexive intelligence capabilities will be significant. There is little question that Obama has complicated that pursuit.

2)    Introducing a case by case judicial review system for Metadata access

‘‘I have directed the Attorney General to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding, or in a true emergency.’’

As an extension to the problems posed in (1), the President has also decided that the FISA court must now authorize each specific access into the metadata archives. Two problems here. First, when it comes to counter-terrorism, the term ‘‘true emergency’’ is truly vague. Perhaps that’s the point – affording Obama the future option of a retroactive definition (and thus political insulation). Second and more importantly however, requiring judicial findings will essentially mean that analysts are prevented from doing that which the President himself has said they must: ‘‘being able to quickly review telephone connections to assess whether a network exists…’’ At the heart of the matter, it’s about threat v time. While there are only eleven judges on the FISA Court, there are many terrorists making numerous phone calls every day. Without rubber stamping, meaningfully managing this workload will be near impossible.

3)   Restricting US spying on foreign leaders

‘‘Unless there is a compelling national security purpose – we will not monitor the communications of heads of state and government of our close friends and allies.’’

Again, it’s all in the definitions. At a basic level, absent some clarification as to what a ‘‘compelling national security purpose’’ actually means, American allies will assume that they’re being monitored anyway. And while Obama’s ‘clarification’ probably assures that the NSA isn’t going to be listening in on the French President’s ‘later night’ conversations, what about other calls? Considering Hollande’s recent visit to Saudi Arabia for example, one could make a pretty strong case that the US has a compelling national security excuse for monitoring him. But more than this strategic angle, the real weakness of Obama’s declaration is that it forces the US to tread an impossible line. On the one hand, not spying on foreign allies. On the other hand, spying whilst implying that no spying is occurring and thus opening the door to future diplomatic embarrassments. Ultimately, it’s clear that there are compelling reasons for the US to spy on certain European states - the French certainly have no qualms about spying on the US. Still, by his confused approach on this issue, President Obama has muddied the waters even further. His ruling won’t rebuild trust, but if a future Snowden leaks new espionage details, it will allow foreign states to accuse the US of having lied. In short, it’s not very clever.

So yes, the US Intelligence Community is immensely powerful. And yes, its power requires democratic oversight – calibrated but meaningful. Nevertheless, these reforms will not serve the national interest. In the end, just as the State Department is the necessary response to a world full of opportunity, the NSA is a necessary response to a world full of threats. An associated truth is also clear. NSA officers do not go to work in order to harass their fellow citizens. Rather, they work to harness the ill-intentions of others. Neglecting that truth in his ill thought out regulations, the President has tipped us towards unnecessary danger.

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