An Irony Too Precious to Overlook
By Dennis Loo (9/18/13)
A recent New York Times article (“Court Upbraided N.S.A. on Its Use of Call-Log Data”) details the second known severe reprimand by the FISA Court of the NSA for being misled by the NSA. The NSA told the FISA Court circa 2009 that it makes only “a few hundred queries in the database every year, when it has ‘reasonable, articulable suspicion’ that a telephone call is connected to terrorism.”
Turns out, however, based on these newly released documents by intelligence officials, it’s not a few hundred but thousands. Further, while the NSA said that this list of thousands met the legal standard of suspicion, only about 10% of the 17,8000 phone numbers on the 2009 alert list met that criterion.
In a March 2009 ruling, Judge Reggie B. Walton scolded the NSA:
“The government has compounded its noncompliance with the court’s orders by repeatedly submitting inaccurate descriptions of the alert list process” to the court, Judge Walton wrote. “It has finally come to light that the F.I.S.C.’s authorizations of this vast collection program have been premised on a flawed depiction of how the N.S.A. uses” the phone call data.
Judge Walton further stated:
[The privacy safeguards approved by the court] “have been so frequently and systematically violated” [by the NSA] that they “never functioned effectively.”
In response to this
“The senior American intelligence official, briefing reporters before the documents’ release, admitted the sting of the court’s reprimand but said the problems came in a complex, highly technical program and were unintentional.
“’There was nobody at N.S.A. who really had a full understanding of how the program was operating at the time,’ said the official.”
Better to cop to being incompetent than to being purposeful liars. You’re not trustworthy in either case, but let’s look at the intelligence community’s self-depiction more closely here.
Even in the most charitable version of what they have been doing at the NSA, what does that tell us?
The NSA and Obama say that they have to collect all of this data (in actual fact, all of our electronic communications, not thousands, terrorist list or no terrorist list) because our national and personal security depend upon it, but “nobody at the N.S.A. … really had a full understanding of how the program was operating at the time.”
The people who are supposed to be on top of knowing what’s going on in the world and in our country to “keep Americans safe” cannot even keep tabs on and don’t understand – none of them can understand – how their own acquisition and analysis of that data is working.
If this were a football contest, how would it sound if the coach were to admit that he and his coaching staff don’t understand their own play calling strategy, but they assure us that they sure as hell can understand what their opponent’s tactics and strategy are?
The terrorists who are supposedly the targets of this data collection from everyone and all activities happening under the sun and moon of course try their best to conceal what they are doing so discovering what they’re up to is intrinsically difficult. How much less difficult and understandable than that is it supposed to be what the “good guys” in intelligence are doing in their own house?
How are we to believe then that they can analyze and properly act upon the avalanche of information that they are collecting every day, 99.999999999999% of which is irrelevant and the .000000000001% of it that is possibly relevant is purposely made difficult to detect, if they cannot even understand their own program for gathering and sorting the data?
The NSA and Obama claim that a) they have all of this information in order to know what’s going on, and b) centralizing it all into the hands of these people is the only way for them to know what’s going on, but they now admit that not one of them could understand what they themselves were doing.
In other words, the whole premise of their argument that the data must all be collected and centralized they admit is erroneous.
This NYT article does not explain how these secret documents released by U.S. intelligence officials came to be released, but I would assume that this second release by U.S. intelligence officials is because the Obama Administration is trying to show that the FISA Court can be relied upon to supervise the N.S.A. and the American people can feel confident that all of the proper safeguards are in place, as President Obama has claimed. See my discussion of the Obama Administration’s first release of classified information here. [Update: the release of this document came about as a result of a lawsuit brought by two advocacy groups against the NSA, not a voluntary release by the Obama Administration.]
Of course, the more reasonable explanation for this is that the NSA was lying to the FISA Court and is still lying. That is how bureaucracies operate. Yet Director of National Intelligence James Clapper is caught red-handed explicitly lying to Congress on March 12, 2013 about the NSA snooping into Americans’ electronic communications (the lie revealed because of whistleblower Snowden’s revelations) and he gets not only to keep his job but Obama rewards Clapper for his lying by appointing Clapper in August 2013 to be the director of his supposed independent oversight committee to make sure that the intelligence community is not misleading the rest of the government and the American people.
"We’re forming a high-level group of outside experts to review our entire intelligence and communications technologies," [Obama] said, adding that the group would "consider how we can maintain the trust of the people, how we can make sure that there absolutely is no abuse in terms of how these surveillance technologies are used."
This is like appointing Court Dracula to be in charge of the Red Cross blood drive. No sorry, it’s more like putting the wolf with his fangs still dripping with chicken’s blood and his face flecked with feathers in charge of security for the chicken coop.