Foreign Policy Research Institute A Nation Must Think Before it Acts Americans, the NSA is Still Listening: Section 702 is Alive and Well
Americans, the NSA is Still Listening: Section 702 is Alive and Well

Americans, the NSA is Still Listening: Section 702 is Alive and Well

George W. Croner, in his January 22, 2018 E-NoteTerrorists, America is Still Listening: Section 702 is Alive and Well,” gives a masterclass in the tortured history of the Congressional effort to beat the clock to renew what he terms “America’s foremost foreign intelligence collection tool.” His description of the legislative process is fully accurate. His experienced assessment of the value of Section 702 to the nation’s counter-terrorism efforts is clear. Mr. Croner seems pleased with the outcome that renews Section 702 for six more years.

However, one cannot help but sense in Mr. Croner’s writing, an undercurrent of vehement resentment directed variously at, “the odd coalition of Section 702 opponents, [in which] some of the most conservative Republicans in the House joined with some of the chamber’s most liberal Democrats,” a “curious confederation of liberal Democrats and conservative Republicans” in the Senate, and above all, Edward Snowden, who has now, according to Mr. Croner, “used up his 15 minutes.”

Mr. Croner is a former principal litigation counsel in the Office of General Counsel at the National Security Agency. He spent many years working on the inside of what is perhaps one of the most inside of all government agencies, so much so that for many years, NSA was referred to as “No Such Agency,” and he was thus privy to information not available to most who write about cyber-spying.  If his views are emblematic of those held by many in the Intelligence Community (the “IC”), one is led to ask why, according to these views, was it wrong, and perhaps dangerously so, for anyone (let alone elected Representatives and Senators from both sides of the aisle) to want to impose safeguards on the IC’s practices under Section 702 that could have furthered individual Constitutional rights? If Mr. Croner’s attitude is shared by many in the Intelligence Community, and I believe, based on several discussions that they are, then his focus on the legislative push-and-pull over Section 702 renewal and on Mr. Snowden may be symptomatic of a danger to American civil liberties that cannot be legislatively overcome. In fact, it may be emblematic of a fundamental mismatch between the classified culture of the IC and representative democracy itself.

In my October 11, 2017 E-Note about Section 702 renewal efforts, I stated my observation that, “We ask that they (the IC) keep all of us safe from harm, in all places, and at all times. In the view of many in the IC, that demand requires that we cede to those who accept the task the discretion to use any tool that advances their ability to perform it, within the bounds of the law.” A corollary to this view, shared by many in the IC over many years, is the phenomenon of, “If you only knew what I know.” This focus on compartmentalization of information, and the assumption that those with higher levels of access to that information make superior decisions because they have superior information is a fundamental result of any system of classification that limits access.

With the recent release of the film The Post reminding us about the leak and subsequent publication of the Pentagon Papers, it may be useful to recall a discussion detailed by Daniel Ellsberg in his 2002 book Secrets, where he describes briefing Henry Kissinger in late 1968, just as Kissinger was entering government service.

“Henry, there’s something I would like to tell you, for what it’s worth, something I wish I had been told years ago. You’ve been a consultant for a long time, and you’ve dealt a great deal with top secret information. But you’re about to receive a whole slew of special clearances, maybe fifteen or twenty of them, that are higher than top secret.

“I’ve had a number of these myself, and I’ve known other people who have just acquired them, and I have a pretty good sense of what the effects of receiving these clearances are on a person who didn’t previously know they even existed. And the effects of reading the information that they will make available to you.

“First, you’ll be exhilarated by some of this new information, and by having it all — so much! incredible! — suddenly available to you. But second, almost as fast, you will feel like a fool for having studied, written, talked about these subjects, criticized and analyzed decisions made by presidents for years without having known of the existence of all this information, which presidents and others had and you didn’t, and which must have influenced their decisions in ways you couldn’t even guess. In particular, you’ll feel foolish for having literally rubbed shoulders for over a decade with some officials and consultants who did have access to all this information you didn’t know about and didn’t know they had, and you’ll be stunned that they kept that secret from you so well.

“You will feel like a fool, and that will last for about two weeks. Then, after you’ve started reading all this daily intelligence input and become used to using what amounts to whole libraries of hidden information, which is much more closely held than mere top secret data, you will forget there ever was a time when you didn’t have it, and you’ll be aware only of the fact that you have it now and most others don’t….and that all those other people are fools.

“Over a longer period of time — not too long, but a matter of two or three years — you’ll eventually become aware of the limitations of this information. There is a great deal that it doesn’t tell you, it’s often inaccurate, and it can lead you astray just as much as the New York Times can. But that takes a while to learn.

“In the meantime it will have become very hard for you to learn from anybody who doesn’t have these clearances. Because you’ll be thinking as you listen to them: ‘What would this man be telling me if he knew what I know? Would he be giving me the same advice, or would it totally change his predictions and recommendations?’ And that mental exercise is so torturous that after a while you give it up and just stop listening. I’ve seen this with my superiors, my colleagues….and with myself.

“You will deal with a person who doesn’t have those clearances only from the point of view of what you want him to believe and what impression you want him to go away with, since you’ll have to lie carefully to him about what you know. In effect, you will have to manipulate him. You’ll give up trying to assess what he has to say. The danger is, you’ll become something like a moron. You’ll become incapable of learning from most people in the world, no matter how much experience they may have in their particular areas that may be much greater than yours.”

Those in Congress most responsible for renewal of Section 702, and for oversight of its use by the IC, are those Members holding the highest clearance levels.

Mr. Croner advises that after several bills were introduced in both the House and Senate to secure an extension of Section 702, an unrelated bill, S.139, “An Act to implement the use of Rapid DNA instruments to inform decisions about pretrial release or detention and their conditions, to solve and prevent violent crimes and other crimes, to exonerate the innocent, to prevent DNA analysis backlogs, and for other purposes” morphed into a last-ditch renewal vehicle. He tells us, “The Congressional Record is silent on how this particular piece of legislation came to serve as the host for the renewal of the country’s most important intelligence collection program; but, then again, no connoisseur of haute cuisine is ever encouraged to study the process by which sausage is made.”

While Mr. Croner is correct about both sausage and legislation, one of the key aims of legislators and groups seeking to reform Section 702 practices was to shine a little sunlight on a system that thrives in darkness. That aim was subverted through a legislative process that derailed committee hearings and limited the debate so essential to our system of representative government. That Congressional leadership engineered this outcome should be a matter of grave concern, rather than celebration.

Certain small changes in procedure and reporting are now part of the renewed Section 702. Mr. Croner is entirely correct in his legal analysis of the Fourth Amendment status, that queries of the 702 database are not considered to be “separate searches” that require issuance of a search warrant. The terrorists should still quake in their boots in the face of the mighty surveillance power of the United States.

Still, one cannot help but wonder whether there is a fundamental tension between how the IC views its role in vacuuming up vast amounts of electronic communication from every corner of the globe, including unimaginable numbers of conversations between Americans and those overseas, and the entirely reasonable expectation of an average person (however misinformed that may be) that her Internet chats, emails, text messages, and Skype calls with her boyfriend in Paris and her Grandma in Peru are private, and should not be “collected” by her government, and then subject to retrospective computerized search. Phillip K. Dick could not have concocted a future any more dystopian than having every word you have ever said recorded and then used against you long after you have forgotten the utterance.

It is certainly within the technical ability of the IC to “collect” all electronic communications. It is within the courts’ interpretation of the Fourth Amendment’s bounds for those communications to be queried. The United States Government can do all of this, now and for six years hence. What we have been denied by the recent process used to renew Section 702 is the more fundamental debate over what We, the People, should allow our government to do to achieve the fundamental goals of “providing for the common defense” and “ensuring domestic tranquility.”

For that foreclosure of open, full, and thoughtful debate, all of us, regardless of whether we were are part of Mr. Croner’s “Odd Coalition of FISA’s Opponents” or not, are much the poorer.