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Betrayal by Those Who Should Know Better

Disclaimer – In a former career, I worked, along with other members of my unit, with the National Security Agency.  I also have had a professional relationship with the NSA’s current leader, General Keith Alexander, when he was my battalion commander in Germany.  No, I wasn’t a spook, I was a drone, and the work wasn’t anywhere close to as exciting as some people imagine when they find out that I was in military intelligence.

Over the past couple of days, the Guardian has reported on the existence of programs in which the national intelligence services of the United States, including the NSA, have issued dragnet orders to Internet and telecommunications companies to hand over data on all of the activities of their American customers.  Ostensibly, this is done so that the government can rapidly sift through the data to find and fix terrorist networks by analyzing who communicates with whom and when.

As a former professional in the service of our national intelligence services, principally the Army’s Military Intelligence Corps, this sends chills down my spine.  You see, this is not a rigidly defined and constricted investigation of an individual or small group of terrorists or criminals.  This is a “Give us everything, and we’ll define when and how we can sift through it, with permission from the Foreign Intelligence Surveillance Courts, of course.” 

Let’s look at this another way.  Would you, as a citizen of the United States or whatever other country you belong to, be OK if the government, acting with the best of intentions and in your best interest, passed a law that required everyone to carry around a national ID card that included an RFID tag?  The government would pay to put up sensors on every street corner, and as each tag passed it, the sensor would put an entry in a database of who passed it and when.  The gathered data would only be used to backtrack the steps and contacts of terrorists in an effort to either prevent attacks or investigate terrorists after one.  This would be coupled with a program at the postal service to track who sent letters, cards, and packages to whom, so that the government could analyze this data in a search for terrorist networks.

I’m imagining that a vast majority of you would object.  But here’s the ugly truth:  We already have that, and you paid for it.  If you have a cell phone, be it a 10 year old flip phone or the latest smart phone, you are carrying a device that talks to your cell phone provider every few seconds, and those companies can and do track which cell towers your phone uses.  They also track, for billing and other purposes, who you call and for how long.  Companies like Google and Facebook, which you use voluntarily, know who looks for what, or who emails whom, or who is where and what they’re doing. All of these companies have been and will continue to be ordered to hand that information over to the government.

So what, you say?  The government has a duty to protect us, and you trust them with this information, you say?  Let’s assume for a moment that the NSA is staffed with living saints and that the President and his lieutenants are philosopher kings who wouldn’t dream of abusing these powers.  Are you sure that this is a permanent situation?  Can you guarantee that the power to sift through the telephone and Internet records of political or social opponents won’t be utilized?   Every power we give those we choose to run our government is open to abuse, and this is one heck of a power to have.

This isn’t a Democrat versus Republican issue, nor is it a liberal versus conservative issue.  These programs have either existed for years or are the logical descendents of programs that existed under previous administrations.  I’m not even that angry with President Obama, although I am irate with the members of the intelligence service on this. 

You see, while we may not have had the technical capability to do what is happening now, when I was an intelligence specialist, we recognized that we had the ability to abuse the technology and methods that we did have.  We had the lessons of the Church Committee pounded into our heads, and it all boiled down to this:  Except in very unique and rare circumstances, the intelligence services of the United States do not use their technology and talents against the people of the United States.  For years, I have been deflecting people I know who hear me mention my military specialty or who read my resume and ask about rumors that the government was monitoring all telephone conversations or was watching what we all did on the Internet, or worse.  If I said anything at all, I talked about the legal and cultural aversion that the intelligence community had against targeting Americans.  I really did believe that, even with the loosening of laws after 9/11, the community as a whole would be honorable and self-restrained in how it did its business.  Now, in the space of a few days, I find just how deluded I had become. 

The members of our intelligence services should be ashamed of themselves.  They are trusted with powerful tools for gleaning and analyzing data about our nation’s enemies, and using them to blindly vacuum up the data of our own citizens is irresponsible and unforgivable.

This morning, I read that the Obama administration has acknowledged these programs and tried to explain away what they were doing.  Here is how Time magazine reported the government’s response.  My thoughts are in italics.

  • The judicial order that was disclosed in the press is used to support a sensitive intelligence collection operation, on which members of Congress have been fully and repeatedly briefed. The classified program has been authorized by all three branches of the Government. — I want to know which members of Congress knew about this, and why they didn’t immediately shut it down, either through cutting off funding or by going to the press.  A Congressman or Senator who didn’t have the guts to dare either President Bush or Obama to prosecute them for reporting this kind of abuse to the rest of us doesn’t deserve to hold office.  I also want to know who in both the Bush and Obama administrations knew about this and signed off on it.  Just because all three branches knew about it doesn’t mean it’s right or constitutional. 
  • Although this program has been properly classified, the leak of one order, without any context, has created a misleading impression of how it operates. Accordingly, we have determined to declassify certain limited information about this program.  —  Whatever.  Let’s get on with real data instead of rhetorical flourishes.
  • The program does not allow the Government to listen in on anyone’s phone calls. The information acquired does not include the content of any communications or the identity of any subscriber. The only type of information acquired under the Court’s order is telephony metadata, such as telephone numbers dialed and length of calls. —  The ability to figure out who talks to whom, how, and for how long is the meat of just about everything you need to either find a terrorist network or figure out who is leaking embarrassing government information to the press or who is participating in a legal effort to oppose the actions of the government.  The actual content of the phone calls, or the emails, or whatever is contained in the targeted communications should be looked at as a bonus. 
  • The collection is broad in scope because more narrow collection would limit our ability to screen for and identify terrorism related communications. Acquiring this information allows us to make connections related to terrorist activities over time. The FISA Court specifically approved this method of collection as lawful, subject to stringent restrictions. — That’s the point, jackass.  Your ability to collect information on our citizens is supposed to be limited, and it’s not supposed to be easy.  If you believe that someone is a terrorist, then get a warrant specifically for that person, and do your damn job.  And don’t insult me by talking about how you went through FISA on this and they were OK with your methods.  FISA is not much more than a rubber stamp on your efforts.  I’ve seen reports that they reject about 1% of the warrant requests you all make, and if these latest revelations show what they approve of, just how horrendous are the ones they reject?
  • The information acquired has been part of an overall strategy to protect the nation from terrorist threats to the United States, as it may assist counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities.  — Again, if you have specific, actionable information about one of us, build a case, get a warrant from a really impartial court that’s more than a rubber stamp, and investigate away.  This is nothing more than an unconstitutional  blanket acquisition of data on innocent citizens.
  • There is a robust legal regime in place governing all activities conducted pursuant to the Foreign Intelligence Surveillance Act, which ensures that those activities comply with the Constitution and laws and appropriately protect privacy and civil liberties. The program at issue here is conducted under authority granted by Congress and is authorized by the Foreign Intelligence Surveillance Court (FISC). By statute, the Court is empowered to determine the legality of the program. — If Congress authorized this, presumably through such things as the USA Patriot Act, it needs to revoke that authorization.  Also, just because Congress said you could do it, doesn’t mean you should do it.  As for your legal regime to govern these activities, don’t insult my intelligence by stating that it’s impossible for someone to get at this data for less than pure reasons.
  • By order of the FISC, the Government is prohibited from indiscriminately sifting through the telephony metadata acquired under the program. All information that is acquired under this program is subject to strict, court-imposed restrictions on review and handling. The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization. Only specially cleared counterterrorism personnel specifically trained in the Court-approved procedures may even access the records. — Again, we’re taking your word that you have better information controls than have ever been devised by mortal man to keep people with nefarious intentions from abusing this data. 
  • All information that is acquired under this order is subject to strict restrictions on handling and is overseen by the Department of Justice and the FISA Court. Only a very small fraction of the records are ever reviewed because the vast majority of the data is not responsive to any terrorism-related query.  — Right, because the DOJ would never abuse positions of trust and authority to persecute the political opponents of whoever sits in the Oval Office.  And if you’re only ever going to use a small fraction of this data, why in the name of Nathan Hale are you gathering it in the first place?
  • The Court reviews the program approximately every 90 days. DOJ conducts rigorous oversight of the handling of the data received to ensure the applicable restrictions are followed. In addition, DOJ and ODNI regularly review the program implementation to ensure it continues to comply with the law.  — Again, we have to believe when you pinky swear that you’ll never even consider abusing access to this data. 
  • The Patriot Act was signed into law in October 2001 and included authority to compel production of business records and other tangible things relevant to an authorized national security investigation with the approval of the FISC. This provision has subsequently been reauthorized over the course of two Administrations – in 2006 and in 2011. It has been an important investigative tool that has been used over the course of two Administrations, with the authorization and oversight of the FISC and the Congress. — Falling back on the Patriot Act is pretty weak tea.  The only good part of this debacle is that it just might give impetus to legislation designed to amend or repeal it. 

  The people who came up with these programs, authorized them, and implemented them need to be staked out and forced to come clean to the American people.  There is a line where protecting our nation from terrorists crosses over into paranoia and tyranny, and the NSA and other intelligence services have not just brushed up against it, but have instead danced across it with glee.  The legal fig leaf of FISA and the Patriot Act need to be reformed or done away with, and those who have abused the trust and confidence of the nation need to be held accountable.

A long drop and a sudden stop

Radko Mladic, formerly the military commander of Bosnian Serb forces during the Balkans War of the 1990’s, has finally been captured.  It’s been 16 years since the Dayton Accords, but he’s finally behind bars.

Mladic was on our list of people to look for when I was part of Operation Joint Endeavor, and I’ve been hoping that he would face justice before he died of old age.  Looks like he was arrested just in time.  If only the thousands of lives he snuffed out had had those 16 years.

Thousands of prisoners and non-combatants suffered and died at the hands of forces commanded by Mladic. Rape, torture, murder, burning, and other horrific acts were de rigeur for him.  An entire generation of Bosnian Serbs, Muslims, and Croats have been scarred, either as victims or perpetrators, by this man’s actions.

I certainly hope the Europeans try him quickly and give him the punishment he deserves:  a bungled knot.

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