On the NSA’s Surveillance Program: The Brown, Muslim, South Asian Elephant In the Room–or On the Phone

A frequent response of those untroubled by the revelations of the NSA program is “If you have nothing to hide, you have nothing to fear.” Perhaps we need to translate that phrase, along with the relative colorblindness through which the entire series of revelations has been scrutinized, as “If your last name isn’t Khan, and you have no family in Pakistan/India/Iran, etc., you have nothing to fear.”

The revelations of NSA’s collection of “metadata,” as cybersecurity expert Susan Landau explained on Democracy Now is, in fact, even more invasive than actual content collection. She gives an example of how that can be the case: Even if all the NSA does is trace the one or more calls from your home to your doctor on a day when you would normally be at work, followed by one or more calls from your phone that is now located at the doctor’s office to your family, that information strongly suggests that the content of the call was bad news.

Similarly then, if the NSA collects metadata of all calls and online traffic in the US, they are probably much less interested in an person living in New Paltz, NY who calls Barcelona 8 times a week than they are in biweekly calls from an Indo-Pak restaurant owner in Edison NJ to a “terrorist-heavy” locale in Pakistan—say Waziristan. Clearly, in both cases, the pattern reveals the obvious: that both the NY and NJ residents have some connection to folks in the receiving nation. But what does it tell the NSA about who they are? To judge from the NSA’s datamining project, the intensity of NSA surveillance is heavier in Pakistan than in Europe. Thus, even if the calls from New Paltz are to a terrorist cell in Barcelona, it seems more likely that the calls to Waziristan (say, to the restaurant owner’s mother and brother and his family) will be more suspicious—of course due to the US’s framing of where the War on Terror must be waged.  Still, the latter would be, as Marcy Wheeler discusses in a related issue, ‘false positives.’

What is the starting framework that informs the NSA to target your call? That folks with close/frequent connections to Pakistan should have their calls monitored? That these same folks have an increased likelihood of being terrorists/sympathizers? Or, alternately, that if one is an Iranian migrant, from a family that left sometime around the Revolution, yet retains close friends who work for the Iranian state (even as low-level civil servants), then their calls should be the subject of targeting, because as DiFi has now announced, Iran is a terrorist state?  Or, as DiFi has also stated, it allows the state to keep records of people who become terrorists later (a la Minority Report).

I can hear the liberals now: “Of course, there she goes, making it all about race again.” Um, no. The NSA is making it about race/religion/ethnicity –as these are uniquely combined in the conceptual category of ‘Muslim Terrorists.’ Other branches of the state have long established that terrorism is a unique category that, while defined race-neutrally as having to do with international or domestic political violence targeted against the US government or its citizens, is almost uniquely and singularly applied to Muslims. We’ve seen evidence of this at other levels of government, as in the case of the NYPD’s surveillance of Muslims—in NY, CT, PA, NJ and internationally. Most recently, we saw this assumption with the immediate rush to assume that a Saudi national that fled the Boston bomb blasts must have been the person who set them—before he was cleared the next day.

If this is the framework that underlies the massive dragnet, then I’m hardly the one making it about race. Meanwhile, as is so often the case, Marcy Wheeler and Rayne (writing at emptywheel.net) have each been presenting some of the most careful and detailed analysis of these programs.  While the PRISM program is limited to collecting data from non-U.S. persons (and what that means is still unclear: does US person include non-citizen residents from India/Pakistan/Iran, etc. residing legally?), as Rayne asks

Does this mean that all communications between individuals who do not have an Anglo-Saxon name are likely to be sniffed if not collected?

Does this sketchy “(foreign) + (less than 3 hops)” approach executed by humans explain known false-positives? Could the relationships between the false-positives be as tenuous as shopping at the same store? What happens in the case of targets possessing a highly common name like “Ahmed” — the equivalent of Smith in terms of frequency among Arabic surnames — in collection so large it could be called a dragnet?

As some have pointed out, some of these details are hardly new, although the names and scope of the program have changed. As far back as 2005 (yes, under an order signed by then-President Bush), USA Today was reporting details of the NSA’s data collection, warrantless wiretapping, and telecom companies turning over data to the feds. It’s also true that there was hullaballoo about it (though not as loud in mainstream media) by those who are labeled hardcore “privacy freaks,”—folks like the ACLU, etc.  At some level, we may not have heard that much ‘new’ information—but between Edward Snowden, Laura Poitras, Ewen MacAskill, and Glenn Greenwald, we now have unquestionable, tangible, proof that the intelligence dragnet has been extensive and long-standing even after Bush’s executive order was rescinded.

Ultimately, the political celebration of NSA’s surveillance programs appears to rest on the same old tired flackery parroted by Lindsay Graham: “I don’t care if the NSA collects my data.”  Of course, Graham doesn’t care. Of course, DiFi thinks NSA data collection is crucial to catching terrorists. Of course, white suburban soccer moms are more interested in the intrigue of Snowden’s (ex?)girlfriend. Why should they care? They don’t worry that they will awake some morning and find themselves on the wrong side of the state—and certainly not because ‘they’re not doing anything wrong,’ but rather because they’re not the wrong color, the wrong religion, the wrong ethnicity, the wrong family (Remember Former White House Press Secretary Robert Gibbs on 16 year old Abdulrahman Al-Awlaki’s death? “He should have been born to a far more responsible father”). But of course.

That’s why Lindsay Graham, DiFI and the white burbie housewives think that NSA surveillance is a great idea. They’re not politically vulnerable (okay, that’s an understatement). They’re officially in favor of the War on Terror. And certain under this Administration and the previous one, their calls to the doctor and to family (or even Graham’s hypothetical call to Waziristan) are not registering as the ‘suspicious’ activity that the NSA is looking for.

As I’ve said before, this all comes down to a familiar form of American privilege:

[T]he privilege of not having to know (or know about) foreign nationals or feel particularly obliged to them, or know about the harms done to them, simply because the wars, jingoism, and aggressive foreign policy of the US empire won’t affect you.

The other side of the NSA leaks has to do with what we know or can infer about the profiles of people who get top-security clearance. If the NSA’s dragnet is designed to look for ‘suspicious’ activity, then besides being directed towards foreigners and foreign threats—it should also be looking for people like Snowden (of course I’m not endorsing this—just considering the logic of the hunt): seeming ‘one of us’ kinda guys: conservative, a believer in American ideals as decided and executed by the US government, a former troop, a “regular guy” with top national security clearance. Who, as it turns out, doesn’t like what he is coming to learn in the course of his work, and is beginning to take serious issue with the size and scope of the project. Except that all the national security surveillance in the world didn’t catch him before he flew to Hong Kong to meet with reporters and turn over evidence of these secret slides that document an out-of-control surveillance program. Whoops.

As Marcy Wheeler also points out, we need to question the success of such tracking programs if ‘success’ is defined as catching David Headley, suspected facilitator of the Mumbai attacks after 166 Indians are killed, or as Floyd Brown points out, catching Maj. Nidal Hassan after his killing rampage, etc., etc.

That again raises questions about whether the national security apparatus is working—or whether it merely is a foundational aspect of the ‘architecture of oppression,’ that Snowden refers to. But that will be the subject of another post.

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A version of this piece was published at http://www.salon.com on June 14, 2013.

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A “Roadmap” to Restoring Our Constitutional Liberties

Hi, folks–FS here. Apologies to followers of this blog for not having posted for a while. The term knocked the wind out of my sails, as the saying goes. I hope to have a new piece sometime in the next day or so. In the meantime, TransEx blogger Robert E. Prasch proposes a set of reforms to address the latest wave of news concerning NSA leaks and the general encroachment upon Constitutional protections.

From Bush to Obama: Continuity You Can Believe In

Edward Snowden’s revelations have collectively stripped away the last shred of hope that the Obama Administration or the Congressional Democratic Leadership have established or intend to establish any meaningful changes from the dangerous precedents laid down by the openly and unabashedly anti-Constitutional Bush Administration. Indeed, the actions of this Administration arguably represent an even greater betrayal of American values, as they have provided the imprimatur of bi-partisanship to the shredding of our long-standing Constitutional rights. Unsurprisingly, the Obama Administration now finds that its greatest cheerleaders and apologists are the former consigliore of George W. Bush’s disgraced Administration. No less than former White House flak Ari Fleischer has happily tweeted that “Drone strikes. Wiretaps. Gitmo. O[bama] is carrying out Bush’s 4th term.”  The Administration’s newfound friends confirm the old adage, “If you lie down with dogs, expect to wake up with fleas.”

How bad is it?  Consider the stance now being taken by The New York Times, a newspaper that once worked hand-in-glove with the Bush Administration to amplify its pro-Iraq War propaganda and then, less than a year later, cooperated in covering up that same Administration’s massive and illegal domestic wiretapping program until after the 2004 elections were safely over. Yet these new revelations are so bad that the Times, despite its long and pitiful record of subservience to executive power, claims to be shocked. Its editors have concluded that the Obama Administration “has now lost all credibility on this issue.” (The phrasing of the sentence suggests that the Administration retains credibility on other issues. We can only speculate as to what issue or issues they have in mind. Prosecuting fraudulent bankers? Supporting meaningful financial reform? The 49 State Mortgage Settlement? Closing Guantanamo? Renditions? Bush-style “Free Trade” Agreements? Drone Warfare? The restoration of due process of law to Americans that the executive branch suspects of terrorism? But I digress). In the same editorial the Times also, and correctly, dismissed Sen. Dianne Feinstein’s pathetic justification of the these massive surveillance programs as “absurd.” Happily, they refrained from implying that Sen. Feinstein retains credibility on other issues.

What Should Be Done?  Lessons from the Democrats’ Undermining of “Financial Reform”

But, one might ask, how should we proceed?  This is an important question.  While it is impossible to formulate a detailed answer so soon after these revelations, it is not too early to sketch out a strategy. As we consider our way forward, it would be useful to remember the hard lessons learned in the course of an earlier episode in which the Obama Administration and the Democratic Congressional Leadership felt compelled to act in a situation where “success” would mean taking substantive action against their largest donors, their personal ambitions as politicians, and their deepest political instincts as so-called “Centrists” or “Clinton Democrats.” That issue was the reregulation of the financial system in the wake of the greatest financial debacle since 1929. The bill that emerged, a veritable monument to doing nothing while presenting the appearance of attending to the public’s interest, was the Dodd-Frank Act of 2010.

Let us briefly recall how that process unfolded. Immediately after the crash occurred, the public was repeatedly told that the debacle was the consequence of a “panic,” and for that reason we should rest assured that nothing was wrong with either the nation’s financial system or its most prominent firms. All that was needed was some “temporary liquidity,” after which all would be well. Remarkably, Timothy Geithner’s Treasury Department and the Too Big To Fail banks never wavered from this story, and regularly deployed “creative accounting” to support it.  To their regret, the public failed to be persuaded despite the best efforts of the financiers, their kept politicians, and industry-friendly regulators.

Seeing that this initial ruse had failed, their second ploy was to stall for time. To that end, they argued that the system was “complex,” and for that reason “rushing to enact reforms” would be unwise. Time would be required, and the crisis would have to pass, before the nation should even start to consider reregulation. Translated into plain speaking, the Administration and its Congressional allies wished to postpone any push for reforms until such time as the public’s outrage had died down and Wall Street’s political hegemony had been restored. Massive and ongoing bailouts greatly facilitated the latter goal. As to the former, American incomes continued to decline, unemployment remained high, housing prices continued to tank, and constituents remained angry.

With the 2010 mid-term elections approaching, and with the Democrats dominating Congress for the two years immediately following the Crash of 2008, it became evident that the Party leadership would have to do “something” if they were to retain any standing with a public whose anger remained palpable. This was the basis of their third and final ploy – passing a regulatory reform bill that was designed to fail, conjoined with a public relations blitz proclaiming a great victory that would end Too Big To Fail while greatly stabilizing the financial system and its most prominent firms. In Washington, appearance is substantially more important than performance. This, in the final analysis, explains why the Congressional Democratic Leadership gave the nation the Dodd-Frank Act instead of substantive financial reform.

Looking to the Future: The Obama Administration vs. Meaningful Reform of Surveillance State

With the above understanding of the politics of futility in mind, we can now turn to formulating a strategy for achieving some meaningful and lasting reforms. We can begin with their first step – denying that a problem even exists.  Those following the news will have observed that the Administration and its Congressional allies have already embarked on this line of argument. The President and leading Democratic Party senators, most prominently Harry Reid and Dianne Feinstein, are already telling us that this week’s revelations are “overblown,” that it is all “hype,” and that “nothing is amiss,” etc. Check that box.

As they are unlikely to be believed, we can anticipate that they will soon move on to phase two. Again, and in parallel with the effort to not reform the financial system, we should expect to be told that intelligence-gathering programs and agencies are “complex,” that their “mission is sensitive,” that we need to “slow down,” that we must “deliberate carefully” so as to bring about “the best possible reform”, etc. As a wrinkle on this theme, we should expect to see a major effort made to distract us with long-running debates or disputes over the personality or quirks of Edward Snowden (In this, David Brooks has taken the lead with an Op-Ed that is idiotic even by his standards, and that is really saying something). The point of such stalling techniques, as it was with financial reform, is to allow the scandal to become “old news.” If this should come to pass, Congress will be able to talk the issue to death, and perhaps even get away with doing nothing at all (the failure to reform the gun laws despite the public’s outrage after the massacre of schoolchildren and their teachers in Newtown nicely illustrates the power of this approach).

A time-honored variant of this venerable strategy is to form an “official” study group to examine reforms. Assuming that Congress and the Administration pursue this approach, we should expect a “bi-partisan” commission featuring “sound” persons who can be relied upon to discover that nothing is amiss. Ideal candidates for such a commission would be Sec. of State John Kerry, Sen. Dianne Feinstein, former CIA and DoD heads Leon Panetta and Robert Gates, and any of a large number of potty-trained “experts” from the usual beltway think tanks, all of whom will solemnly promise to “look tirelessly into possible abuses.”  If, thereafter, sufficient political pressure remains, expect a bill that is long, complicated, and vaguely worded. For performance, it will call for intelligence agencies to be monitored by, at most, deeply conflicted parties in opaque processes. In short, it will be legislation resembling Dodd-Frank.

Four Guidelines for the Achievement of Meaningful Reform

The failure to reform Wall Street provides several lessons that collectively point to four necessary components of any successful strategy to bring our nation’s bloated and overreaching intelligence agencies (and their contractors) to heal.

First, and of most importance, it must be understood that the Obama Administration and the Democratic Congressional Leadership will resist any and all meaningful reform with every means at their disposal. To that end, we can expect them to continue to prosecute and vilify whistleblowers while libeling critics and reformers. They will also continue to stir up fears that are, to be blunt, as beside the point as they are beneath the dignity of anyone who thinks of themselves as the citizen of a free nation.

Regrettably, such fear-mongering is so prevalent that it must be addressed directly. Since 9/11 we have been repeatedly told that giving up our liberty and privacy is worthwhile as it enables the government to “Keep Us Safe.” Those who make this argument should be reminded that the best-fed, healthiest, and safest animals live in zoos. Seriously, folks, living and thriving as a free people in a free nation involves a degree of risk. But is there anyone out there who thinks that it isn’t worth it? Everyone who has ever volunteered for the armed services has already answered this question. I would submit that it is well past time for the citizenry at large to honor the commitment of our young servicemen and women by agreeing to live with the immeasurably small risks we must shoulder to live as free people in a free nation. Let us recall that our heritage is not one of bowing to fear. Two hundred and forty ago Americans willingly took up a substantial risk. They fought the world’s largest empire so that they might live as citizens rather than subjects. Does their sacrifice mean nothing to us today?  Has July 4^th been reduced to one more great day for a BBQ?

The second condition we must take into account is the fact that the public’s attention span is limited.  No one is more aware of this than the Administration and its Congressional allies. To achieve meaningful reform we cannot allow the process to be diverted into endless “hearings,” “commissions,” “inquiries,” etc.  This is especially the case if these hearings are exclusively staffed by the usual suspects. We can only allow such an investigation to take place if it is short in duration and led by former Senator Russ Feingold or one of the Oregon Senate delegation.  Otherwise, forget it.

Third, we must demand simple laws featuring bright lines and clear performance criteria. Rules that are simple and clear can be easily and readily monitored by any interested citizen or group of citizens. An example from finance was the Glass-Steagall Act of 1933 that separated investment banking from commercial banking. If you were in one business, you could not be in the other. Full stop. It was simple to state and simple to regulate (the lines only became grey after the banks induced the Federal Reserve to make them grey, but that is another story).

In spying, we developed equally simple rules after the Church Committee hearings of the 1970s. NSA and CIA could conduct their activities overseas, but not in the United States. Americans could not be investigated without a warrant from an independent judge (although the secrecy granted to the FISA court and its opinions must be wholly and radically rethought). Again, we want simple laws that are easy to monitor and thereby difficult to elide or evade.

Fourth, we must be ever mindful that the intelligence agencies being subjected to reform will not like it and can be expected to put up a powerful and unceasing resistance. The reason is simple.  As with the equally pathetic “War on Drugs,” there is a massive amount of easy money to be “earned” in the course of spying upon one’s fellow Americans.  Moreover, it is a line of work where one is primarily rewarded for who one knows, not what one knows. What this means is that meaningful reform will undermine comfortable and highly lucrative careers in the “Making Us Safe” business.  With so much at stake we should anticipate vigorous resistance, not limited to highly damaging smear campaigns against any persons or groups pushing for meaningful reform. Also, in the event that binding rules are passed, the leadership of these agencies will almost immediately begin reaching out to their political allies, and especially to their contractors, to have any substantive rules repealed, “reinterpreted” (a task that now appears to be a specialty of the Office of Legal Council), or reworked.  Happily, while blocking the ability of these agencies and their allies to unravel reforms may be difficult, it is not impossible. But, success requires that we be pro-active.

The place to begin is by significantly, and I do mean significantly, reducing the resources available to these agencies. This immediately shrinks the size of the prizes to be gained and thereby the interest in going after them. And let us be clear, these agencies are effectively the “anchor firms” of enormous private sector industries with substantial political reach. Any reform that fails to reduce the bloated budgets of these behemoths will not stick for long. As speed is of the essence, the process of cutting back should resemble the manner with which one deals with a massively overgrown hedge. Begin by hacking back the overgrowth with large indiscriminate swings. Only after the bulk of the trimming is accomplished should one return to the task with an eye to shaping its appearance. So, for example, cutting NSA’s budget by 33% the first year, followed by another 10% over each of the next three years would be a great start. Again, the point of such cuts is to substantially reduce the political power of these agencies and the innumerable contractors who feed at the trough of their porcine budgets. Half measures will be insufficient if we are to get the genie back in the bottle. I should add that publishing the actual budgets of these agencies is essential. Despite the shrill claims that will undoubtedly be made to such a suggestion, publishing these budgets will in no way or manner put the public at risk. Why? Because in this world of doubt and uncertainty one of the few things about which we can be sure is that the Chinese, Russians, Israelis, and all major European powers already know just how much money each of these agencies have been allocated. Only American citizens remain in the dark.

The CIA, we should briefly note, is a qualitatively different problem.  The reason is that they field what is essentially a small army.  The problem with this force is that it is solely and exclusively accountable to the President. That Presidents like having a small army that they can use on a whim should not come as a surprise. Nevertheless, an army that can be deployed at the behest of a single individual goes strongly against every known or imagined notion of  “checks and balances.” To make matters worse, our experience with CIA special operations has in no way or manner validated this Constitutional loophole. The record has not fluctuated between good and bad. On the contrary, it has been a continuous string of disasters. The blowback and loss of moral authority that the United States has experienced from CIA misadventures in Guatemala, Iran, the Bay of Pigs, Cambodia, Afghanistan, El Salvador, the Iran-Contra scandal, “Black Site” prisons, rendition programs, ongoing Drone Wars in at least a dozen nations, etc., have been individually and collectively intolerable.  It must end.

The CIA’s record of repeated failure suggests a problem, one that runs to the core of that institution and its lack of accountability. Which is the reason that it must go. In 1991, Senator Daniel Patrick Moynihan introduced the “End of the Cold War Act” that would have abolished the CIA altogether while moving its (very) few useful functions into the State Department. He tried again in 1995 with the “Central Intelligence Agency Abolition Act.”  Now would be an excellent time to revisit this wonderful idea. Moreover, the successful closing of that agency would send a clear message – one that is nicely designed “pour encourager les autres.” To repeat, the CIA does not need to be reconfigured or reformed, and its leadership does not need to be reviewed or reshuffled. It needs to be shut down. Period. It is of particular importance that its special operations branch be closed. Again, not reformed or recalibrated, but closed. If the President wishes to have a war with another nation, or a particular group within another nation, let him or her argue for and receive explicit Congressional authorization.

Related to this is another essential precondition to the achieving, and especially the sustaining, of substantive reform of our intelligence agencies. We need to eliminate any and all “contractors” (a.k.a. mercenaries) from the payrolls of every branch of the United States government. This includes the Pentagon, all intelligence agencies, and the State Department. The rule should be simple – if you are authorized to carry or operate a weapon in the service of the United States government you will wear an appropriate United States military or police uniform (unless you have been specifically and temporarily assigned to undercover duties).

Likewise, everyone working for an intelligence agency should be an employee of the United States government and earning a government salary. This is important for three reasons. The first is that private firms can and do give political donations, lobby our representatives, and provide our elected officials and their staffers with cushy post-electoral sinecures. Now, it is one thing to lobby for a padded no-bid contract to provide copy-paper to the Pentagon, but it is another thing altogether to lobby for the initiation or continuation of a state of conflict. The second reason is that government employees are considerably harder to fire than private sector employees (although the rules are substantially more lax in areas such as intelligence and Homeland Security – a fact that must be changed). With greater job security, lower-ranking employees who witness wrong-doing have more protection in the event that they attempt to talk to superiors, inspector generals, or members of Congress about what they have seen. The third reason is that uniformed military and intelligence agents are paid considerably less than the fat-cats working for their private-sector counterparts. Contrary to the collective wisdom of the District of Columbia, this is not a fact to be deplored. On the contrary, it is to be proclaimed from every rooftop. When these professions earn below “market rates” we can be certain that everyone who opts for the job must be motivated by something other than the salary. Being “believers” in the importance of their mission, such persons will be more likely to speak up or, as a last resort, become whistle-blowers in the event that the leadership of their agency is heading down the wrong path. Whistle-blowing, as we have seen, is often the last – and for that reason a critical — check on out of control government programs and agencies.

So, to reprise, a successful strategy to restore our Constitution must, (1) recognize that the Obama Administration and its Congressional allies are firmly on the wrong side of the issue, (2) push for immediate and substantial reforms without allowing the process to be stalled by talking it to death in Congress or waiting around for pointless reports from commissions staffed by the usual Washington sycophants, (3) place an emphasis on clear, simple, transparent, and easy-to-monitor rules, and finally (4) significantly defund the beast, with special attention to eliminating the CIA and all outside “contractors” and mercenaries. By design, this list avoids speculating on the specifics of the rules we will need to put in place to restore our privacy and liberties against an overreaching government. Nor does it cover what penalties should await those who violate such rules. But achieving and sustaining meaningful reform requires more than good ideas, it needs a strategy for getting there. If the disappointing outcome of the effort to reregulate the financial system has a silver lining, it is that it has given us some insight into how we should proceed against well-entrenched interests.

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Robert E. Prasch is Professor of Economics at Middlebury College. Click here to read more of his posts.