The NSA and Disrupting Terror

Cell Phone Tower

Privacy, the NSA and the Disruption of Terror

By R. Alan Clanton
Thursday Review Editor

June 20, 2013: It’s amazing how quickly a major story can evolve, enlarge and sometimes redefine itself in just a matter of weeks—and with the odd effect of morphing the bad guys into the good guys, depending on your perspective.

Somewhere in Hong Kong the young Edward Snowden remains hidden from view but still vocal, interacting with select reporters and adding volatile fuel to an already rising conflagration begun roughly two weeks ago. The President, NSA officials and a few members of Congress say that Snowden’s claims are overstated, and that the notion that the government is listening to your phone calls and reading your emails is patent misinformation. However, recent revelations in the British newspaper The Guardian quote Snowden as saying that the NSA’s spying program is more invasive and more widespread than even those sweeping estimates from last week when the gigabytes first hit the fan, as it were.

For many Americans, Snowden is a traitor and a criminal, and one who should be prosecuted as such. For many others—conservatives, liberals and moderates alike—he is an unlikely hero for his whistleblowing in what may yet prove to be the most sweeping campaign of domestic spying since Richard Nixon occupied the White House.

Snowden, for his part, seems cognizant of his situation: if he chooses to remain on the lam, he will likely be pursued by the FBI, British intelligence and law enforcement for many years, even as his options for asylum in other countries begin to narrow with each passing day. If caught, his life, as he previously understood it, will surely be over.

Still, many on both sides of the political aisle say that Snowden is not the issue.

President Obama, on the defensive for weeks over multiple issues—the IRS scandals, Justice Department overreach in pursuit of reporters’ phone records—is now forced to defend a draconian program which seems not merely incongruous to the narrative of his two campaigns and his presidency, but sharply at odds with progressive and liberal (and indeed libertarian conservative) sentiment over the fundamental right to privacy. (See our editorial, The Government Wants Your Data; Thursday Review Opinion).

Obama’s job approval ratings are now at their lowest point since he has been in the White House, and most of the recent polls indicate that his approval deficit stems largely from a belief by the majority of Americans that they cannot trust the government.

The President spoke on Monday, as did several defenders of the NSA’s reach and authority on the Sunday morning talk shows. The new official version of events is that although the NSA has been collecting massive troves of data since perhaps as early as 2003, including emails, cell phone records, file transfers, uploads and downloads, search engine requests and page views, but only the tiniest fraction of that information has been visited by digital mining or browsing, and even less by human eyes. The President, as well as his surrogates in the field, says that such human intrusion would be illegal, and that the NSA’s mission has been strictly limited to tracking—using a few carefully developed search algorithms—only the most suspicious of correspondence and interaction between individuals in the U.S. and their counterparts in places like Yemen or Pakistan.

But Snowden says that is simply not the case, and that human intervention in the data is routine and easy (as he seems to have proven by his use of simple, inexpensive flash drives to extract the NSA’s data unnoticed). Furthermore, Snowden seems less-than-rogue in light of interviews in the Monday edition of USA Today, in which several former top NSA directors tell reporters Peter Eisler and Susan Page that this kind of spying—basically the harvesting of information about Americans’ phone calls and emails—has been going on for years. As Eisler and Page report, those former NSA analysts suggest that even Snowden’s estimates may be understated.

The government talking point in defense of the NSA program is a simple one: the NSA has only rarely used the data it has collected, and on those scant few occasions, law enforcement was able to disrupt terror plots in the making. The most often cited case is that of Najibullah Zazi, who was suspected in a 2009 plot to detonate bombs in the New York City subway system. Some defenders of the program give other examples, including disrupted terror plots directed from Yemen.

But many experts point out that these “disrupted” plots—the ones most frequently cited—were in fact examples of how the use of traditional gumshoe investigations actually led authorities to the source of the plots. The emails and phone calls simply added to an already solid reason for suspicion, but may not have been necessary in the interdiction by law enforcement. Asked by USA Today reporters if there is an effective way to track potential terror plots without violating the 1st and 4th amendments to the U.S. Constitution, William Binney—a former NSA Technical Director—answered with an unequivocal “yes,” and highlights the simple steps—what he calls the “two degrees” principle: there is the terrorist, and there is the person in the United States with whom that terrorist is routinely talking, whether by phone, email or text message. Beyond that circle, the government should assume others—those with whom the U.S. connection is talking—are innocent of potential terror. This approach would be consistent with U.S. law enforcement and our understanding of “probable cause.”

Some defenders of the PRISM program (in which the NSA harvests personal data such as emails, search engine requests and text messages) and the top secret court rulings (which allow for more invasive scrutiny of data) suggest that in the wide and pervasive wake of 9/11, this is the trade-off: Americans want their security, and are willing to shrug off a measurable degree of domestic spying. But the former NSA chiefs interviewed by USA Today say bluntly that as a nation we have allowed the Constitution to be violated. Many Democrats and Republicans agree. The divisions on the issue are especially complex and cut across party loyalties: Al Gore, for example sharply criticized President Obama for allowing such a widespread program to have proceeded to this level of penetration, suggesting that it violates the 1st and 4th amendment rights of Americans. Former President Bill Clinton seemed, over the weekend, to lean in the opposite direction, suggesting in interviews that many of the terror plots disrupted could have been foiled only through the use of data mining—specifically emails and cell phone intercepts which led police to effectively connect the dots in those conspiracies.  Senate GOP leader Mitch McConnell said yesterday that the administration "has institutionalized the practice of pitting bureaucrats against the very people they're supposed to be serving, and it needs to stop." 

Though the NSA and its defenders now suggest as many as 50 serious plots were uncovered or disrupted by the spying program, there is a sense by many Americans that transparency is lacking. It may not be enough to simply state, "plots were foiled." Were these potential acts of terrorism nipped through the use of data collection and mining? Or, as was the case with the Boston Marathon bombers, were there already ample reasons to subject the principal suspects to a closer form of scrutiny using existing state and federal laws—warrants, court orders—which comply with our understanding of reasonable cause?

Still, despite the examples offered by both defenders and critics of the NSA programs, the current brouhaha points to problems beyond the big issue of constitutional rights.

There are plenty in Washington and on Capitol Hill who feel—perhaps rightly so—that Snowden should be prosecuted for his act of treachery. There are others who want to know how someone with only months of employment could be placed in such a sensitive administrative position, with access to so much information and apparently with little-to-no supervision himself (Snowden had previously worked for the CIA beginning in 2011). NSA officials admit that Snowden used simple, inexpensive flash drives (the type that can be purchased at Target, Staples, Office Depot or Walgreen's for $9.95) to haul out his trove of top secret information.

At a Senate hearing on Thursday, a representative of the U.S. Office of Personnel Management (OPM), Patrick McFarland, told Senators present that the company for whom background checks for NSA employment is outsourced, the Falls Church, Virginia-based USIS, is now under investigation for its own obviously faulty procedures, including—in some remarkable instances—fabrication of information found in the background check files of certain potential federal employees. Further, McFarland admitted that there were serious problems with the way that Snowden had been screened by USIS.

Further, though it may be easy enough to characterize Snowden as a hero for his whistleblowing, his actions will truly be treasonous if he shares his knowledge or the contents of those thumb drives with foreign intelligence operatives—most notably the Chinese, the country most often cited as being responsible for internet and digital intrusions into U.S. business, government and media computers.

For many in Congress, and in the media, the issue is not over—nor will it end with the NSA’s current declarations that 40 to 50 terror plots were derailed or disrupted. Taken in the larger context of government intrusion and omnipotence, the news of the NSA’s widespread collection of personal data is disturbing—equally, it seems, to conservatives and liberals, even some liberals like Gore who have previously supported the President.

Meanwhile, more revelations are sure to emerge over the next days and weeks—with or without Snowden—and in the rolling hills south of Salt Lake City the NSA works feverishly to complete its massive data collection and sorting facility, the place where, one day very soon, the government can stockpile every detail about your life.