With the passage of a new FISA law, a predictable hue and cry from privacy advocates and fear-mongers has reached a crescendo. So-called “domestic spying,” we are assured, will soon bring about an end to the republic and personal and civil liberties in a fashion that only the Emperor Palpatine could have conjured up. Thankfully the dark side of the force, Orwell’s Big Brother and fears of the return of Palmer Raids and internment camps are all equally fantastic and unreal.
Let’s address the clear, known problems with the government’s rush to know as much as it can about everyone under their purview.
The FBI’s misuse of devices such as national security letters is as good a place as any to start. Essentially administrative subpoenas, they allow government agents to gather information about you without the more rigorous scrutiny and oversight of a warrant. Roughly 3,000 violations of the NSL policy were recently reported.
The military’s TALON database was another example of data collection on Americans gone wrong. TALON was designed to support force protection, which is a military concept that focuses on identifying and countering or defeating threats to military personnel. TALON included information about Americans because it was largely Americans who showed up at anti-war protests and demonstrations outside of military bases. The collection was somewhat indiscriminate, in part because those gathering the information – military law enforcement – were unaware or unclear of what could or should be included in the database.
In the aftermath of September 11th one could be forgiven an overactive sense of immediacy about the threat of more attacks from within our borders. What the Feds might have known, local and state law enforcement did not; and vice versa. The fastest and easiest way to work from a common operating picture – disparate organizations with different responsibilities all using the same information – is to just vacuum up as much information as you can. The efficacy of the end result – DHS and state-fusion centers – is debatable. But with the passage of time we can look at these past activities through a filter of perspective.
No matter whose numbers you use, a tiny fraction of a percent of the people in the US have been “spied” upon – as defined by the privacy crowd – to some extent. That’s a few thousand people who the government knows more about than your average telemarketer. Anyone who thinks those numbers represent an epidemic of privacy violations should probably ask Santa for a dictionary. Furthermore, anyone who thinks this activity is going on with true secrecy and without oversight hasn’t been paying attention.
If we look at what really drives these “abuses,” it is largely your standard issue government bureaucracy screw-ups or human nature, not malice. Carefully read the reporting on the investigation into the national security letter misuse and you will note that a large part of the “abuse” is a record keeping exercise. In the case of TALON, it was a case of mission creep as a database designed to do one thing morphed into a system that did something else, which resulted not so much in a database on Americans’ private lives but a membership list of anti-war groups. To be sure, there are arms of the government that are snooping on the very personal information of Americans; IRS and State Department employees seem to have a penchant for peeking into the files of various politicians and celebrities, which should give you an idea of what really drives true invasions of privacy.
Why does intelligence need to have access to so much information about people? The short answer is that the information age has forced them to change their way of doing business. Intelligence used to be almost scientific in the pursuit of answers. You started with a question or hypothesis, gathered information, attempted to prove or refute the hypothesis based on the information gathered and expert opinion, and made decisions based on the answers. That sort of system worked well when the bulk of intelligence questions had to be answered with information stolen from myriad adversaries who were trying to keep the information away from us. Obtaining information of value required a lot of hard work and involved serious risk.
Today the reverse is true; information is plentiful and free. While the value of any discrete secret may have gone up, the vast majority of questions needed to make national security decisions can be answered with non-secret information. Consequently, intelligence agencies have been forced into a new operating model: gathering as much information as possible and then using various methodologies to identify and evaluate patterns and trends of interest. The bulk of such information, whether used by an intelligence agency, polling company or marketing firm, is never actually looked at with any granularity if at all; unless it is part of a pattern or meets a variety of criteria of interest it is worthless and unseen.
It is worth noting that the Americans who work in the intelligence community and their families don’t get a get-out-of-spying-free card. That is to say that a true, invasive dragnet of personal information, emails and phone conversations would just as easily scoop up information of the people doing the collecting and their own families. When you join the intelligence community you willingly agree to live under a regime of certain suspended liberties, but freedom from unreasonable search and seizure is not one of them. Does anyone think that the hundreds of career, professional intelligence officers would willingly sign themselves and their families up to be subjected to a truly sinister plot to undermine our liberties?
Advocates of privacy strangely ignore the fact that Americans frequently and willingly subject themselves to much more surveillance than any government program might bring to bear upon them. The millions of visitors to Las Vegas are given the informational equivalent of a colonoscopy just by setting foot on the strip, not to mention in a casino. What happens in Vegas may or may not stay in Vegas, but one this is certain: everything that goes on there is documented indiscriminately. In fact surveillance in Vegas is probably much more accurate to the fear-mongering descriptions of what privacy advocates would have you believe the government is doing. In a casino the “eye in the sky” watches all because you never know who is going to try and pull a fast one. On the gaming room floor it is assumed that anyone is a potential crook: intelligence doesn’t work that way.
Those who believe Orwell’s 1984 has finally been realized also fail to point out just how the government would carry out the reckless, wanton arrests and detentions of innocents based on the flimsiest information without public awareness or backlash. Guantanamo Bay is not Manzanar on many levels, and in case you have not been paying attention, this is a technological era in which a photo snapped on your cell phone can be posted online and seen by millions worldwide in a matter of minutes. No one subscribing to the Orwellian paranoia has yet explained how the people of this country would allow a government action akin to the Red Scare to quietly take place under our very noses in this day and age.
Those who complain the loudest about supposed violations of privacy are almost always people who have never been involved in intelligence work. This is not to say that you cannot learn a lot about a subject through study and discussion with actual practitioners. But unless you have done the work, you really don’t have a full and complete understanding or appreciation of how the work is done, how hard it is to get even fundamental tasks completed, and the scrutiny you work under. Real intelligence work is so totally and completely unlike 24 or Enemy of the State that both shows – in an intelligence context – should be reclassified as comedies.
Let us also not forget that people who leak information about surveillance programs are hardly paragons of morality, ethics or integrity. By revealing the existence of such programs they are violating a sworn oath to protect the information they are leaking, which should immediately set off an alarm. More importantly, most chose to stay anonymous not out of fear of their jobs – any serious investigation should root any given leaker out (and in the case of Mary McCarthy, it may very well have) - but for purely political reasons. At some point they forgot that they were instruments and not crafters of policy. At some point they decided that professional integrity and honor were just words. You may not agree with what Daniel Ellsberg did with the Pentagon Papers, but at least he had the integrity and conviction to put his career and freedom on the line. Those who fancy themselves Ellsberg’s heirs are operating with much more base motives and considerably less intestinal fortitude.
This is neither an apology nor cheers for the government. We are as quick to jump on the legitimate foibles and missteps as anyone. But we are not going to get carried away with fantasies and imagined abuses when reality is so much more interesting and challenging. More intelligence capabilities would be preferable to less, as would more oversight of said capabilities. Absent a perfect regime for a perfect world that does not exist, we should be content to recognize that in an age of fast, cheap and accurate information, it takes very little time for any sort of improper activity to see the light of day. This reality can be witnessed in the news each week.
At the end of the day, it is not without irony that the same Americans who screamed loudest that the intelligence community failed to protect us and prevent the attacks of 9/11 are the same Americans that steadfastly oppose seemingly every action taken by that same intelligence community since in efforts to learn more and perform better - seemingly as demanded. The enemy was among us then, using our systems and institutions with the comfort of relative obscurity, and is still using those systems today. If the enemy is in your house, one does not trot to the neighbor's to find them.
One thing is for certain. We cannot continue to complain about real and perceived specific intelligence failures only to in turn object to productive means of addressing them.