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.

Related thoughts

A delicate dance: France responds to the NSA

Following their earlier reporting, Le Monde is now claiming that the NSA targeted French diplomats at the UN and at the French Embassy in Washington (the BBC has a de-emotionalized summary).

Are we supposed to be shocked?

Look, I get that the French Government is angry. As a result of Snowden's leaks, President Hollande is being forced to navigate a tripartite political minefield - expressing dissatisfaction to sate populist anger, but doing so in a way that averts damage to the US relationship and avoids undesired attention from flowing towards DGSE SIGINT programs. This last point is of critical importance. French Intelligence doesn't simply collect on security/foreign policy related targets, they attempt to siphon data from US Intelligence platforms and they aggressively target private companies - engaging in industrial espionage of the type that characterized the KGB. They also monitor French citizens with zealous alacrity. In short, their behavior is far from sanctified.

But let's be clear, the NSA related accusations are far from surprising. Informational awareness is a cornerstone of international diplomacy. It makes sense and it's nothing new. As Susan Rice (apparently) put it, ''[NSA activities at the UN] helped me know... the truth, and reveal other [countries'] positions on sanctions, allowing us to keep one step ahead in the negotiations.'' As I've noted before, the US has understandable reasons to spy on European allies - interests align at certain junctures and separate at others.

All of this speaks to a broader point. No alliance is perfect. The US-Israeli intelligence relationship provides one such example of this truth. Ultimately, deep trust is contingent upon a long term, proven relationship. Like that of the 'five eyes' community (and specifically the US-UK intelligence alliance). Even then, complications are still present.

In the end however, defining interests define a relationship. As was the case with Brazil, this minor scandal will die down. Its perpetuation serves neither France nor the United States.

European Idiocy on Political Speech

This is an extraordinarily stupid prosecution. Le Pen is a racist and thus an unpleasant woman. But punishing her for controversial political statements is a terrible mistake. The rise of the far right in Europe is surging undaunted. From neo-Nazis in Greece to fascists in Spain, those who once shouted from the fringe are now finding new power. In Germany, the Nuremberg of 1946 finds sustaining echoes in the Nuremberg of 2013. In France, Le Pen's political movement currently finds second place in national polls. Even Britain is afflicted.

For too long, Europeans have pretended that political extremism was a thing of the past – locked away in horrific memory and sourced only in Islamist terrorism. Now they’re paying the price in a unified extremist energy. The urgency is real, Europe must act.

To address this rot, European governments must attack the hate mongers at the source of their power. Reforming speech laws would be a good place to start. A while back, I argued that Europe could learn from the American tradition on free speech. Restricting political activity, I suggested, only sustains extremist narratives. Tragically however, instead of taking inspiration from Skokie and Brandenburg, Europe’s governments have further restricted civic freedom. The spirit of revolutionary France has given way to a Government at war with twitter. The British Parliament, once home to Wilberforce and Churchill, now seeks dominion over the UK Press.

By constantly re-defining the contours of legitimate speech, European governments have chilled all speech. They’ve fostered a popular disaffection; an isolation that’s been greeted by a mass of welcoming and warring extremists. Le Pen's prosecution will only drive more supporters to her flag.

SEE ALSO some of my other writings on free speech

Vive la France?

France has some major problems.

1) Crime

Violent crime in France is increasing in both frequency and ferocity. As the new years eve Apple store robbery illustrates, the French Government is seemingly incapable of restraining armed gangs from terrorizing businesses across the country. This problem is multiplied by the incapacity of the French Police. An incapacity that is partly because of corruption, but primarily because of absent capability. The French Government urgently needs to establish dedicated counter-robbery units in the form of the UK's Metropolitan Police SCD-7 and the FBI's Americas Criminal Enterprise Section (ACES). The current police effort is obviously woefully insufficient. French Special Forces - RAID, GIGN, GIPN are excellent, but they're not investigative units.

 

2) Economy

The French President has a problem. His 75% tax plan is in trouble in the courts and in practice. In the 21st century, human capital is movable - and if people can avoid paying exorbitant taxes then they tend to do so. Further, although it suffers from many ailments, the main problem with the French economy is found in the restrictions which suck the life out of its labor market. Employers need to be freed to hire and fire and employees need to work longer.

3) Freedom

France is now pressuring Twitter to ban free speech. This isn't just a French problem, as I have recently argued, it's also a UK problem and to a lesser degree a US problem. This area is one in which US conservatives have a real opportunity to stand up in support for freedom. The excessive restriction of speech is an enemy to free ideas, an ally to extremists and a cancer on society. Anyway, Twitter's response to the French Government should be to say this.

Chavez, Castro and the stupidity of the European left

I never cease to find it amazing how clueless some European liberals are when it comes to the socialist governments of Central/South America. Cuba's problems are well known.. yet morons like Galloway continue to worship Castro. In 2009, Venezuela's civilian death rate from violence was 3x larger than that in Iraq. Further, Venezuela's economy is now a sad joke. Conversely, the largely moderate-liberal governance of Brazil has meant that that country's economy is surging. The comparisons are clear. 

Luckily for the European left, they will shortly be able to see whether they have it right.. It will be interesting to see what happens when the French socialist, Hollande, is elected President of that country.. Perhaps then European liberals will reach the promised majesty of socialist utopia. Or.. perhaps when the French bond market collapses (French GDP to Debt ratio is 85% and Hollande's policies will destroy economic growth/investment and increase inflation), liberals will realise that they were just being stupid.

France Afghanistan Withdrawal

The French decision to accelerate the removal of troops from Afghanistan is a slap in the face of the US/Britain and NATO. Truly, this shows the arrogance of the EU in terms of its foreign security posture. While the Europeans ran to take credit in Libya, they lacked the basic foundations of military power. As Andrew Exum at CNAS notes,


 the nations of Europe, in the words of one defense intellectual, showed up to a gunfight in Libya with knives. The United States brought the guns. And the ammunition. And all the taregting. And all the in-flight refueling. And the ISR. 


The EU (sadly now including the UK) free rides off the back of US taxpayers when it comes to military spending and capability provision. It is decisions like France's that make me think the US should relocate bases out of Europe and gradually diminish the military organisation supporting NATO. NATO should still exist, but it should exist as a diplomatic organisation where allies meet to discuss threats etc. An absence of shared burdens is in effect an absence of a true alliance.