Have we been demonising the NSA?

Is the NSA just doing its job?

Here is a question that I have been preoccupied with this week: Have we been demonising the NSA?

That’s because I read this blog post by Geoffrey Stone.

Stone, who was a member of president Obama’s NSA review group and is a member of the American Civil Liberties Union’s National Advisory Council, was invited to speak to NSA staff at Fort Meade about his work on the review panel and his perceptions of the NSA.

Admitting that to describe his view of the NSA when he joined the review panel as “sceptical” would be “an understatement”, Stone then goes on to describe how his work on the panel changed his view of the NSA in surprising ways.

“I […] found,” he said, in his speech at Fort Meade, extracts of which he then posted to his blog, “that [the NSA] is an organization that operates with a high degree of integrity and a deep commitment to the rule of law.”

He further said:

Like any organization dealing with extremely complex issues, the NSA on occasion made mistakes in the implementation of its authorities, but it invariably reported those mistakes upon discovering them and worked conscientiously to correct its errors. The Review Group found no evidence that the NSA had knowingly or intentionally engaged in unlawful or unauthorized activity. To the contrary, it has put in place carefully-crafted internal procedures to ensure that it operates within the bounds of its lawful authority.

A confession on my part: I found that difficult to believe. The idea that the NSA “invariably reported [its] mistakes upon discovering them” or that it “it operates within the bounds of its lawful authority” seemed counter-intuitive, if not outright false.

The NSA not operating lawfully and making the reporting of mistakes extremely difficult – I thought that was what part of the fuss over the past months was all about.

Stone went yet further. He said:

“Rather than being a rogue agency that was running amok in disregard of the Constitution and laws of the United States, the NSA was doing its job.”

So, Stone, a member of “the Presidential panel […] that urged significant changes to the [NSA’s phone record collection] program”, what is more “one of the more outspoken members of the panel concerning the importance of civil liberties” who “after the panel’s report came out […] was vocal about how “shocked” he was that the NSA’s phone record collection program was basically useless” said the NSA wasn’t actually doing so badly?

Hang on, I thought. For months, we have been told that the NSA operates programmes that are not only pretty useless but also probably unconstitutional and now, all of a sudden, this guy, Stone, is trying to tell us that the NSA operates “within the bounds of its lawful authority”?

Coming from a man like Stone who has previously alleged that claims that the NSA had thwarted almost 60 terrorist plots by aid of its phone data bulk collection programme were false because the panel found no evidence for that, I felt that this warranted a closer look.

Had Stone been brainwashed at Fort Meade? Did he, in the presence of actual NSA staffers, lack the balls to say what he really thought?

Or are we actually guilty, I wondered, of demonising the NSA and its “hard-working, dedicated, patriotic employees […], who [are] often working for far less pay than they could […] earn[…] in the private sector because they [are] determined to help protect their nation from attack”?

The short answer, I think, is that yes, perhaps we have but, then again, we haven’t.

Because there is, in fact, no such thing as the NSA.


What is the NSA?

Let me explain: over the past months we have been confronted with evidence of sweeping mass surveillance that harvests and stores the data records of billions of people all over the world.

We have seen and discussed the danger that such surveillance poses, and its lack of effectiveness.

We have come to a point where even the US administration has realised that mass surveillance programmes and the legislation that regulates them are in need of substantial reform.

During the debate, we have often used the terms “the NSA”, “GCHQ”, “the administration”, “the government”, “Congress” and so on.

I myself admit full culpability for using these terms.

The problem with these terms is though that they tend to generalise.

As such, using the designation the NSA to describe a vast organisation harbours the risk of lumping everyone who works for it together.

It is one of the particular problems of human speech that using generalised terms like this can make us forget that what we are actually talking about is not just an institution (the agency called “NSA”) but also a body comprised of thousands of individuals – and not all of these individuals, Stone is correct in saying, are to blame for what is wrong with the NSA or its mass surveillance programmes.

Edward Snowden, I am pretty sure, agrees with that.

“Intelligence agencies do have a role to play,” he wrote in a live Q&A in January, “and the people at the working level at the NSA, CIA, or any other member of the IC are not out to get you. They’re good people trying to do the right thing, and I can tell you from personal experience that they were worried about the same things I was.”

Mr Snowden went on to write that

The people you need to watch out for are the unaccountable senior officials authorizing these unconstitutional programs, and unreliable mechanisms […]. They’re the ones that get us into trouble with the Constitution by letting us go too far.

Now, Stone basically says the same thing:

The responsibility for directing the NSA to carry out [its] programs [including the highly problematic bulk phone data collection programme for example] rests not with the NSA, but with the Executive Branch, the Congress, and the Foreign Intelligence Surveillance Court, which authorized those programs — sometimes without sufficient attention to the dangers they posed to privacy and civil liberties. The NSA did its job — it implemented the authorities it was given.

Stone does not claim, by the way, that the NSA or its employees should use the fact that they were “only following orders” as an excuse.

“But,” he goes on

Although the Review Group found that many of those programs need serious re-examination and reform, none of them was so clearly unlawful that it would have been appropriate for the NSA to refuse to fulfill [sic] its responsibilities.

Now, first things first.

I do take issue with a couple of things that Stone says.

For one thing, he reiterates the claim that the “NSA had helped to thwart numerous terrorist plots against the United States and its allies in the years since 9/11.”

We have to take that at face value, as we yet have to see evidence of it.

Given that Stone himself expressed his shock at the ineffectuality of the bulk phone record collection programme, the claim seems somewhat questionable but being on the review panel, Stone may have had access to classified documents that substantiate the claim. We cannot know this.

“It’s impossible,” ProPublica has made clear, “to assess the role NSA surveillance played [in thwarting terrorist plots] because, while the agency has provided a full list to Congress, it remains classified.”

However, it makes sense to keep the following in mind:

Firstly, “Senator Patrick Leahy said that his own review of a classified list of what the program was necessary for did not show that it was used to thwart terrorist attacks.”

Secondly, “Senators Ron Wyden, Mark Udall and Martin Heinrich went so far as to file an amicus brief stating that they’ve yet to see any evidence that the program has been useful.”

Thirdly, while Obama’s review panel apparently “fully expected some details on how these programs had been used to stop terrorists […] the NSA couldn’t show any such evidence.”

And finally, Stone’s own assertion that the NSA has helped thwart numerous plots is quite different from the claim repeated by some NSA and government officials that the NSA has thwarted 54 events.

The precise wording is: intelligence from NSA surveillance programmes “has contributed to the [U.S. government’s] understanding of terrorism activities and, in many cases, has enabled the disruption of potential terrorist events at home and abroad”events, importantly, does not mean attacks and helped thwart is not the same as thwarted.


Semantics, semantics, semantics

This may sound as if I was tying myself in semantic knots here but semantics is far more important in relation to mass surveillance issue, oversight and – importantly – legislation than it may seem at first.

In fact, it has become clear over the past months that being mindful of semantics is quite crucial when it comes surveillance and legislation.

For one thing, “the NSA translates certain words, completely different [sic] from the way any other English speaker does, in order to argue that what it does with its surveillance programs is “legal” under the law”“. We thus need to be very careful not to be “left with the inaccurate impression of the effectiveness of NSA programs.”

More so because it is not only NSA officials who make semantic pretzels that threaten to mislead the public. “[M]embers of Congress have repeatedly ignored […] distinctions and hedges” necessary to accurately assess the usefulness of NSA programmes.

This careless, if not deliberately misleading, use of language is in itself quite dangerous. I will explain this further down.


NSA – No Such Agency Thing

Before I do that, though, I would like to suggest that we ourselves may need to be more mindful of distinctions.

Both Stone’s and Edward Snowden’s comments as I have quoted them above point to what I mean when I write that there is no such thing as the NSA.

Speaking about the NSA might cause us to overlook that rather than one massive obscure organisation that operates somewhere in the shadow of insufficient oversight the NSA is really a number of things.

Certainly, there are within the NSA “good people trying to do the right thing” who “were worried about the same things” that Edward Snowden was.

We should not forget, either, that Edward Snowden himself – contractor though he was – was part of the NSA (and the CIA before that) before he turned whistleblower.

Now, you may want to argue that by failing to do what Edward Snowden did, i.e. report wrongdoing, the “good people” within the NSA who “were worried about the same things” as Edward Snowden became complicit in that wrongdoing and thus could be added to the big lump that is described by the umbrella term the NSA.

What is more, if NSA programmes were not “so clearly unlawful that it would have been appropriate for the NSA to refuse to fulfill [sic] its responsibilities” then perhaps spotting the issues with the programmes isn’t as simple as listening to Edward Snowden or perusing the documents he has leaked can make it seem. The average staffer – the kind that Stone perhaps addressed in his speech – may not have quite recognised how problematic these programmes really are.

I may be wrong here. Clearly, the problems with these programmes and the capabilities they afford even contractors like Edward Snowden were obvious enough to Snowden himself to make him blow the whistle. Also, Snowden saying that others worried about the same things he did suggests that at least some within the NSA realised what was going on and chose not to act.

Yet given that we cannot know how we would have reacted in a similar situation (and I would suggest that many of us – myself included – cannot confidently claim that we have the moral fibre of an Edward Snowden or a Thomas Drake), I would suggest we might want to refrain from throwing too many stones too readily here.

Moreover, what is also included in the term the NSA (not to mention the wider Intelligence Community) are top officials like Keith Alexander, John Inglis, and James Clapper.

And just like we should not demand that everyone in within the NSA has to be an Edward Snowden, we cannot assume that because some of the organisation’s top officials have wittingly misled Congress and the people, this means that everyone within the NSA is of the same questionable morality.

Finally, it is true that by speaking about the NSA and all that is wrong with its programmes, we do run the risk of not placing enough weight on the responsibility of the “the Executive Branch, the Congress, and the Foreign Intelligence Surveillance Court” for directing and authorising the programmes the NSA uses.

The NSA is not alone at fault for the authorities it has been given. It may be arguable that it is at fault for the way in which it uses these authorities but then it could also be argued that Congress, the Executive Branch or the FISA court should operate on a basis of “better safe than sorry” when dishing out authorities. By which I mean it may be prudent for them to make legislation restrictive rather than permissive when it comes to authorising what the NSA and other intelligence agencies are or aren’t allowed to do.

While by claiming that the NSA was operating within the law (and even that is not always without doubt) some people may be making it too easy for themselves, it is quite possibly also true that it is not always so easy for the individual to make a judgement on whether or not that law itself is in need of reform.

So yes, perhaps we have been demonising the NSA, if only by not thinking carefully enough about the number of things the NSA is and blaming individual members of the IC along with those who have failed to represent or direct them appropriately. The keywords here are oversight and accountability – Edward Snowden in the quote above warns us against unaccountable senior officials.


Never, ever trust the NSA

At the same time, Stone says correctly, we are right not to trust the NSA. We should never accept anything anyone does – and particularly not an organisation with the responsibilities and powers that the NSA has – on blind faith.

“The work [the NSA] does,” Stone says – and this means everyone who works for the NSA, “however important to the safety of the nation, necessarily poses grave dangers to fundamental American values, particularly if its work is abused by persons in positions of authority.”

I would go so far as to say that it not only poses grave dangers to fundamental American values but that it poses grave dangers to fundamental values, period. No qualification or differentiation needed there. Any kind of intelligence work, carried out in secret without responsible oversight, poses grave dangers to values like liberty, free speech and democracy anywhere in the world.

Again, semantics perhaps, but then, the whole point of this exercise is that we perhaps need to be much more careful about the way we speak and think.

This seems more pertinent than ever in a week when Brett Max Kaufman has taken issue with NSA “word games” in his essay on “Surveillance and the English Language”, recalling George Orwell’s “Politics and the English Language”, both of which are excellent reads.

They make us aware that while people when they refer to NSA surveillance as “Orwellian” mostly mean the surveillance envisioned in Orwell’s 1984 – the much-evoked “Big Brother” – the very word games played by NSA officials are in themselves Orwellian.

It has been remarked more than once that to really understand what NSA officials are saying when they speak about what the NSA does one needs a lexicon, or several of them. I myself have commented on this here.

In fact, various publications have attempted to create dictionaries of “NSA speech”, like for example, The Wire, Techdirt or Slate. A word of warning though: considering that apparently “every other day, the public discovers a new addition to the NSA’s own special lexicon” these are probably out of date by now.


The great power of language

In an appearance via video link at Amnesty International USA’s annual human rights meeting Edward Snowden argues the point as well – a video of this is here and Mr Snowden’s comments on how the government and NSA use language begin at around 15:15.

What Mr Snowden says makes it clear that what Kaufmann writes about how governments redefine words in secret not only to defend the indefensible but also to give themselves more power is one hundred per cent appropriate.

So is what Kaufmann writes about how the “great power of language in a democracy lies in its ability to set the terms of the government’s compact with the governed”, or as Mr Snowden puts it:

What good are our laws if the words in them can be re-interpreted, if the meanings of our laws can be re-interpreted by secret courts and secret judges and secret agencies without any public accountability, without any public input at all?

Mr Snowden gives the answer himself: “I don’t think that’s democracy and I think that’s something the public deserves to know.”

What this shows us is that Mr Snowden is just as worried about language side of things as Kaufmann is and as – in fact – George Orwell was and that “conversation about surveillance isn’t just about being watched, but about the relationship between public and their government.”

Language has the power to re-interpret our rights – and to take them away. This is something that is already going on and the reason we need proper oversight.

However, the argument goes both ways. And perhaps this is what Stone means when he suggests that we have been demonising the NSA.

Just like we need to be mindful of the semantic acrobatics – and, as Kaufmann puts it “legal gymnastics” – of people like James Clapper, we also need to be mindful of what we ourselves say and think and how we differentiate between an entity and the individual elements that entity is comprised of.

Once we become mindful of this, Stone’s words that “the NSA deserves the respect and appreciation of the American people. But it should never, ever, be trusted” don’t seem so paradox at all anymore. Any perceived paradox merely shows that we sometimes overlook – or refuse to acknowledge – the complexity of the term the NSA.

It may just be that we do need to be more careful not to blame, or demonise, those individuals within the NSA who deserve credit and respect.


A democratic toolbox: The ACLU’s NSA database

The ACLU this week has provided us with a tool that may help us make better informed judgements not only on the NSA and its programmes but also on the laws and responsibilities behind them.

It has launched a searchable NSA Archive, “an up-to-date, complete collection of previously secret NSA documents made public since last June” with the aim of “facilitat[ing] [the] debate [about the US “government’s interpretation of its authority to engage in sweeping surveillance activities at home and abroad, and how it carries out that surveillance”] by making these documents more easily accessible and understandable” (as a side note: be aware of how the quote refers to the “government’s interpretation of its authority”.)

This looks to be an invaluable tool. A database that will allow every single one of us – “the public, researchers, and journalists” – to search, and find, all publicly available information in relation to NSA surveillance, to familiarise ourselves with that information and then to make up our own minds.

In their talk at the Amnesty International meeting, Edward Snowden and Glenn Greenwald expressed a slight wariness that something like “surveillance fatigue” may be taking hold – that after months of revelations, people are starting to lose interest. Apparently, some of the very important recent stories haven’t had as much traction as previous ones.

It can only be hoped that this fatigue, if it exists, will not last.

In order to be able to accurately evaluate the NSA, legislation, and oversight, we need to be familiar with and knowledgeable about what has been revealed and what will yet be revealed.

The knowledge we can gain from an up-to-date database like that of the ACLU may not only help us to better understand the “grave dangers” that Stone mentions but also whether or not the NSA – or parts of it – have earned our respect or not.

It is, in fact, a tool that should help us position ourselves in relation to the discussion and to make ourselves aware of whether or not we are guilty of demonising the NSA (would that the people who have been demonising Edward Snowden and the reporting journalists came to a similar conclusion).

Importantly, the knowledge we can gain from Mr Snowden’s revelations and, consequently, from the ACLU database, may ultimately help us safeguard our democracies by being distrustful in an informed and proportionate way, that is in a way that does not demonise the “good people” but allows us to examine our governments’ interpretations of their authorities and thus to check whether or not our laws are any good.

Ultimately, what Mr Snowden has done has been to shine a light on the dangers inherent in mass surveillance programmes, the laws that govern them and their interpretation at a time when something still can be done about them. This is the great service he has rendered us all.

Now what we can do – and to that end the ACLU database is invaluable – is to try and really understand what these dangers are and how we can work to protect ourselves.

For if we really understand what’s going on, it will get much harder for those people within the NSA and our governments who are re-defining our laws and the words that these laws are written in to justify their actions and give themselves more power until the laws themselves become meaningless.

The ACLU’s database, Edward Snowden’s documents, are tools we can use to hold our governments and their intelligence agencies to account. They are tools that we can use to exercise our democratic rights and responsibilities and potentially rebuild managed democracies into proper ones.

I’m going to go away and take a good look at that toolbox now.


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