I normally don’t use AllisonTribe as a political platform, but I’m going to do so here. If you just want to look at baby pictures or get caught up in our doings, you will probably want to skip this post.
I have never been a very outwardly political person. I have strong feelings about my politics, but I’m not one to attend a march or write my Congressmen. Part of this comes from my military background, where I feel that it is wrong for a military person to influence policy. My duty is to implement policy, not to influence it.
However, with the release of the Snowden files I’ve changed my approach. There has been suspicions regarding the National Security Agency for about a decade that the NSA was responsible for tapping the internet. However, until now there has not be ill-refutable evidence in the public domain to confirm these suspicions.
I am all in favor of tracking terrorists and doing what we can to prevent them from attacking us. I do believe that we must be careful in how we handle terrorists. You must be careful to avoid making them into martyrs and to not allow their deaths to inspire others to their cause. While I worked at the Defense Intelligence Agency, I was not responsible for hunting down terrorists. I did have to learn their tactics, techniques, and procedures (TTPs) for the types of analysis I was doing, so I did study how they behaved. I also spent six months in Qatar working on analyzing Iraqi documents. This was the time when it was popular in Iraq to film the beheading of prisoners. If you do not think that there are dangerous people in the world that kill for fun, and will kill you without hesitation, I respectfully disagree. There are not many in total numbers, but these people are dangerous. I absolutely understand and support the NSA’s efforts to track these people, and to disrupt their plans before innocent people are killed.
However, it is not necessary to trample on the Constitution to conduct counter-terrorism intelligence. In fact, even if it were necessary to trample on the Constitution, no one in the Government, including the President has the authority to ignore the Constitution. No where in the Constitution does it state that you can ignore sections because they are inconvenient in your counter-terrorism efforts. It doesn’t allow the requirement of the Federal Government to provide for the common defense unconstrained. Even in the pursuit of that common defense, the other portions of the Constitution remain valid, and must be respected.
My oath of office, just like the President’s, Congress’s, and the Supreme Court is to uphold the Constitution. It isn’t to uphold the Constitution if convenient. The apparent unconstitutionality of the NSA’s programs caused me to the first time in my life to write my senators and my congressman.
My letter was simple. I wanted them request from the Supreme Court a review of the surveillance activities in the NSA and to have the Court rule on their constitutionality. If any were found to be unconstitutional, then they were to be immediately stopped and the data collected destroyed. If there were any legal council involved that determined that the programs were constitutional, they should be fired. If their were anyone in leadership positions that knew that the programs were unconstitutional, yet approved them, then they should be charged accordingly. If the President knew that the programs were unconstitutional, yet approved them, then he should be impeached. All very simple, let’s publicly declare if they are constitutional or not, and then hold people accountable for their behavior.
I’ve received two form letters back. Both took on the same tone. Snowden is a criminal and his reckless disclosures have put these valuable and legal counter-terrorism programs at risk. We in Congress have sufficient oversight and these programs are well ran. Neither of them addressed anything I wrote.
Snowden, patriot or traitor?
Snowden clearly broke the law in releasing the information. He signed the same papers I did, when I promised to keep secret stuff secret. There are no loopholes in that paperwork when it comes to something that you believe is illegal or unconstitutional. Within the NSA and all other Government agencies, there are processes for reporting potential violations and for whistle blowing. You agree to follow your organizations procedures when you enter into their employment.
However, different organizations have different histories of how they treat whistle blowers. I really don’t know how well the NSA treats whistle blowers, and in reality, it probably depends on what you are reporting. If you are blowing the whistle on someone stealing from the organization, you are likely to be treated as a hero. But if you are reporting that major ongoing programs that you are working on are unconstitutional, now you are probably not up for employee of the month.
History will decide what Snowden is, and I suspect that he’ll be treated as a whistle blower. I disagree in his decision to release all of the documents that have been released to date. In particular, I disagree with the release of any documents that detail our spying operations overseas. Spying overseas is what I expect the NSA to be doing, and is consistent with their mission and the Constitution. I believe that he lost credibility with the release of non-US operations.
I believe that Snowden came out into the open to:
- Move the story from who released the information to what the information was saying.
- Prevent his assignation. If I was him I’d be very concerned about being “disappeared” either by the US Government or by a proxy for the US Government.
- Legitimize himself as the source. Without knowing who he is, it was difficult to determine the validity of the information.
I wish the US Government’s response to his leaks was to investigate his claims and to shut down any unconstitutional programs. I would like to think that the response was to respond in such a way to protect the Constitution, Snowden may have not released any additional information. I don’t know if that is how he would have reacted or not, but chasing him around the world and hunting him down is not the behavior of a Government that has done the right thing. It also forces him to release more information, as information is the only currency that he has left to survive on. He may feel compelled to keep releasing information in order to survive.
I am very thankful that so far there are no indications that he’s provided his raw information to Russia. You would have to think that they’d love to have a copy of all of the documents that he has on him. However, Putin has played his hand well, and there is a lot of irony when he looks like the one defending liberty.
Some things should be secret
Some people are calling for the declassification of everything. They believe that all information should be in the open. They are universally stupid. Our Government along with every other Government on this planet has secrets. Some secrets are more important than others. We have a rich history of spies handing over information to foreign governments that resulted in our agents getting killed, or our information flow to be stopped.
Spying is both good and bad. If our spies were successful in infiltrating Saddam’s Iraq, we may have had legitimate proof that he wasn’t building any weapons of mass destruction. Instead, we had a single source that was playing us for his own gain, and who’s made up intelligence was just sufficient enough for a bunch of smart people to think that it could be legitimate. Spying can be bad. It is expensive, time-consuming, and complicated. A threat is defined by two things, their capabilities and their intentions. Defining capabilities is typically easier than understanding, and more importantly, predicting their intentions.
It makes sense to keep the nature of our capabilities secret. If the target understands your capabilities, then they may work around them, or worse, intentionally deceive you by planting false information where you can get it. History is filled with the use of decoys and deception, and that happens today as well. So, you do what you can to protect your capabilities.
Most of the time it is pretty public what one nation’s “intentions” are… or is it? Does this country intent on invading another? Sometimes it is obvious, but other times is it not. It really depends on the questions you are trying to ask. So, if you ask if Iraq intends on invading Kuwait, and you see a bunch of tanks on the border… the intention is pretty clear. If you ask if Iran intends on developing a nuclear weapon… it gets more complicated. The Iranian intentions can easily change depending on who is in charge, and what is happening in the internal Iranian politics as well as international politics. If Iran is running a ruse to force concessions from the international community, they may try to hide their true intentions as a secret. In some cases, a country simply doesn’t know what it intends to do, but is keeping their options open.
Secrets do matter, and they should be protected. The challenge is that it is easier to make something secret than it is to not. No one has ever been fired for classifying something. But if someone publishes something openly, and someone else of higher rank thinks that that information should be classified, you can find yourself on the street. The classification system is broke. It encourages over classification instead of the right classification. This consistent over classification has resulted in a blanket mistrust between the Government and the people. When the Government says, “trust us, this is classified and we can’t share it with you”, and later we find out that it is nothing more than a restatement of a press article, you lose faith.
I think Wikileaks is probably the best example of this. I am forbidden by law to look at Wikileaks and I never have. But from what I’ve see in press reporting on Wikileaks, much of the classified information was so mundane that it should have never been classified at all, and some of the information implied that the US military had been lying. Had all of the secrets been actual secrets and the information didn’t contradict what the US military had said publicly, then Manning wouldn’t have seen the public outcry of sympathy as he received.
The role of the FISA court
I do not understand how you can have a secret interpretation of law. I just don’t get how you can possibly justify doing so. The FISA Court was set up to provide judicial oversight after the NSA was caught spying on Americans illegally. According to my Congressman and Senator, the FISA court provides rigorous oversight of the NSA and is not a rubber stamp court. In reality, they probably provide better oversight than many people give them credit for. However, they can only act on the information provided to them, and when they are fed false information, they can’t do their job. The recent release of the 2011 FISA ruling was chilling. The NSA lied (okay, they called it misrepresented) about multiple programs that were found to be unconstitutional. The documented fact that the NSA has lied to them, and that they have asked for permission to do certain operations “after the fact” clearly demonstrates that the FISA court is unable to perform their oversight responsibilities.
I don’t think it is the case that the judges on the FISA court don’t take their job seriously, but they have a very difficult job to do. I have always thought of the FISA court as having a judge on call 24/7 to make decisions on the spot when needed. I guess I read too many Tom Clancy novels since that doesn’t appear to be how it happens. Maybe it should. Maybe they should be embedded in the intelligence community with the authority and responsibility to make spot decisions. I say this because one of the common arguments to work around the FISA court is that it takes too long to get a decision, and that terrorist investigations go at a speed that the court can’t keep up with. If this is true, then the court needs to change so it can keep up with the speed of the investigations. It is an unwise decision to use this as an excuse to avoid oversight or to postpone oversight until after the damage has been done.
No matter what, the FISA court needs to be altered to allow it to perform its oversight duties. There are many options, but the one option that I don’t really think is optional, is that there should never be a secret interpretation of law. Anything that comes close to the constraints as outlined in the Constitution should be clearly defined and in the open. We should not be playing language games on what is the definition of “collect”.
Is what the NSA is doing Constitutional?
Simply put, NO. I can see no way to fit the wholesale collection of American communications into a massive NSA database as consistent with the wording or spirit of the First or Fourth Amendments. There is simply no way to have any sense of freedom of speech when everything you do online is collected and analyzed by the Government. There is no way to say that it is “reasonable” to collect everything, per the Fourth Amendment. The argument that the Government makes is that “it’s just metadata”, as if that answers everything. However, if it wasn’t important and providing intelligence, they wouldn’t be collecting it in the first place. Metadata can be very powerful, and is often more important that the actual content of the call or message.
Most of what the NSA does is Constitutional. I’ve worked with the NSA when I was at the DIA, and they were hard working honest people. For the most part, I got along with them (expect for that one analyst from IAD), and I really respected their expertise and judgement. They really do some outstanding work, and they accomplish some amazing things. I was fortunate that I never ran across the part of the NSA that is working the programs that Snowden has been releasing about. I would have been put in an ethical quagmire had I been so unfortunate. I would have felt compelled to report what I would have perceived as unconstitutional activities up my chain of command, and I would have probably seen my career end at that point for doing so. I don’t think I would have received that “Definite Promote” rating had I been a whistle blower.
Do we need a Surveillance State?
I do not believe that we need a surveillance state. I do not believe that the handful of terrorist that may be caught through blanket surveillance justifies the willful violation of the Constitution. More importantly, the Constitution doesn’t not permit a surveillance state. That is the foundation of the Fourth Amendment. Even if I wanted a surveillance state, that would require repealing the Fourth Amendment.
I don’t know why anyone would want a surveillance state? Yes, there are cases that massive surveillance is critical for investigations. But is the cost to our freedoms worth it? Would the money be better spent improving our first responders than trying to prevent something that is theoretically impossible to prevent? If all of this surveillance really is more theater than anything else, why are we spending so much time building one?
I am in favor of selected surveillance for counter intelligence and criminal investigations. Within reason, the tools necessary to do the job need to be made available. Tailored surveillance that doesn’t try to collect the entire world supply of hay to find a needle is justified, and legal under the Constitution. In fact, it makes sense that the smaller the haystack, the easier it is to find the needle.
Business Implications
I believe the NSA could have easily predicted the negative fallout for any company that willingly cooperates with the surveillance state. You can’t blame companies for cooperating on specific criminal investigations, but that is different than using a company that provides the government all of their customer records.
These companies are in a tight spot. They don’t want to been seen as anti-patriotic, they don’t want to hurt their chances at Government contracts, and they didn’t really have a choice (unless they wanted to shut down completely). What a scary thought it must be to realize that you were doing something that if your customers found out about, there would be rage. The only saving grace is that all of your competitors were probably compelled to do the same things, so you’d all be in the same boat. Where will all of the Verizon customers go, to AT&T?
The bigger issue is that the NSA’s actions have hurt the international operations of global information technology companies. It didn’t take long for foreign companies to start using the fact that they don’t give their data to the NSA as a selling point. They at least make the NSA work for the data.
This has to hurt, and it hurts more when you are under a gag order and you can’t speak out (sorry First Amendment). If their compelled compliance to these programs continue, several of the global companies will become American companies. This will hurt competition, and will drive up their costs.
For example, what would the cost of the Windows operating system be if Microsoft couldn’t sell it overseas? The US is a small fraction of their entire market, but if the system is believed to have a backdoor to the NSA, why would anyone buy it? It would be seen as a national threat to some countries. Now that it is believed the Microsoft has a “cozy” relationship with the NSA, will anyone believe Microsoft when they claim that there are no backdoors in their software. Their software is proprietary, so no one has access to the source code. Even if foreign governments had access to the source code, how could they confirm that the actual software matched the source code, and that no “patches” later would simply insert a backdoor for the NSA after the software has been accepted. Call it an “insecurity update”.
Computing has been undergoing a cloud revolution. The “cloud” has changed the nature of modern business, where companies are leasing computer power from others instead of building their own systems. There are many good reasons to do this, but security has always been questionable. The security comes from the contract from the hosting provider and the customer, where they promise to protect your data. For security concerned companies, you can kiss that business model goodbye. At least when you own your own servers, the FBI and NSA are forced to come to you for unfettered access. They may be able to hack into your systems, but that still takes some work. The sad part is that the cloud is what has enabled off of the startups that we’ve seen over the past several years. The NSA has now put our future innovation at risk.
Business is much better equipped to handle this than your or I. They have lobbyist that can rewrite laws, and pay to be heard by lawmakers. I’m guessing that their letters may actually get read and answered. I would have to guess that several companies are lobbying aggressively right now in an attempt to undo the damage that has been done. I have to think that if you are a new candidate, and you run on a privacy platform, you could get some good money out of Silicon Valley right now.
Why is the Government reacting this way?
What I don’t understand is why the vast majority of Government (with a few exceptions) seam okay with this level of surveillance. If you want to know who the donors are for your Super PAC, the NSA knows. If you want to know who the President is consulting on policy, the NSA knows. If you want to know who your Congressman is sleeping with, the NSA knows.
Either there is so much blackmail material already established between the NSA and politicians that opposition is non-existent, or they don’t appreciate that blackmail is an option. In either case, all of them have sworn to uphold the Constitution and are failing to do so. Our political process is surrounded by secrecy from whom lobbyist influence, to whom actually writes the laws, to which politicians are corrupt. Now, if the NSA would like to turn over all of the communications records for Congress to a special corruption investigation… let’s say something like McCarthy but focused on corruption instead of communism, we’d have these surveillance programs curtailed in a heartbeat.
We are in a financial crises and our Country is close to being insolvent. So, we spend billions of dollars each year building up a surveillance state. I’d think that Congress would take this opportunity to cut the budget and use the funds for better purposes, like paying off our debt.
I don’t think many Congressmen and Congresswomen appreciate the implications of their inaction and lack of outrage when it comes to the next election. I predict that this is going to be a hot potato, and anyone seen as willing to violate American’s rights and privacy is going to have a hard time. Respecting the Constitution is not a Republican or Democrat issue, it is an American issue, for both old and young. Those old enough to remember World War II remember fighting the Axis Powers which were surveillance states. Those whom are younger live on the internet and expect privacy in what they do. They may not expect privacy from Facebook or Google, but they do not expect the Government to be watching their every move. I believe that it is a small demographic that believes that the threat of terrorism justifies a surveillance state in clear violation of the Constitution.
For example, it will be interesting to see how Senator Feinstein’s re-election goes. She represents Silicon Valley yet has costed them billions in future business and has allowed the Government to gag them. She’s not only bit the hand that feeds her, she chewed it off and spit it back into their face. She represents a mostly liberal state that remembers the FBI infiltrating peaceful protests in the sixties and seventies. She will not be re-elected unless her competition is incompetent, or she goes beyond “promoting transparency” into the surveillance that is taking place. She is the head of the Senate Intelligence Committee, so for her to say now that she supports transparency just represents her damage control to the leaks. She could have put in transparency years ago, but was happy to allow the continued surveillance state to grow with ineffective oversight.
Where we go from here
I don’t really know. As I said earlier, this has really gotten under my skin. I am saddened and heartbroken that our government has adopted the surveillance techniques of our former enemies. We must be the envy of every dictator on this planet. We’ve given up our privacy in a false hope of preventing terrorism, thus given the terrorist an easy win without any help. We should be standing up for privacy and liberty in response to terrorism. We should not allow the threat of terrorism destroy what this country has historically stood for. We’ve lost the moral high ground, and we really have no right to tell anyone that they should change their behavior until we start changing ours. I hope that we will have some true leadership come out of our Government, but we haven’t seen that for a long time. I’m sure that there are individuals in our Government that are honest, patriotic, and wanting to do the right thing. I hope that our leaders will listen to them and realize that their job is to govern and lead, not to pander to those that want absolute power.
I’m sorry for writing so much on this but I had to get this off my chest. I will continue to watch the news to see where this goes and maybe I’ll be surprised. We aren’t done as a democracy yet, and a comeback is always a possibility.