The peculiar calculus of US Intelligence was laid bare to the world when NSA Director General Keith Alexander and Director of National Intelligence James Clapper recently appeared before the Senate Select Committee on Intelligence. At one point General Alexander, resentful at this unnecessary intrusion into his agency’s activities fell back on what Samuel Johnson called ‘the last refuge of the scoundrel’. Patriotism. Talking ‘from the heart’, he appealed to the emotions of the committee:
‘These are patriots who come to work every day saying “How can we defend this country and protect our civil liberties and privacy?” Nothing that has been released, has shown that we are trying to do something illegal or un-professional.’
The sums are starting to emerge in this appeal, but no one denies the NSA’s innate professionalism. They are at the cutting edge of data collection and surveillance monitoring, due in part to the only part of the ‘special relationship’ that truly exists; the secure link between the UK’s GCHQ and the NSA exposed by Snowden but an open secret to anyone who studies the math. The arithmetic according to Alexander goes like this:
The NSA is stuffed full of patriots = No wrong can be done by the NSA.
Never mind the damage done by the botched intelligence operations of yore. That wasn’t the NSA. The CIA state sponsored assassinations, the failed coups or more spectacularly the successful ones that toppled democratically elected leaders and consistently undermined the credibility of a nation that pretends to defend democracy. Never mind the Iran-Contra affair, the Sandanistas and well, since we’re only talking about ancient history here, the failure to acknowledge the coup in Egypt for what it was, the illegal rendition parties across the globe, the odd illegal war and the continuing machinations that say anything goes as long as it suits the current agenda of priorities, drawn up every couple of years like an a la carte menu that the restaurant keeps to itself and seldom deigns to share with those who pay the bill. My enemy’s enemy is my friend is an equation that gets a little shaky if you drill down to the shifting sands of intelligence agendas that see Saddam and Bin Laden failing to stay on the right side of the table.
But all of that was in the bad old days, even if it was only last week that Angela Merkel noticed a few more clicks on her phone and couldn’t get reception anywhere near her right ear. The NSA could not possibly be involved in anything that violated the constitution or acted against the liberties of its citizens because they are patriots. But their allies could. Those effete Europeans with their weird cheeses, suggestive pasta shapes and warm beer could do it and if the NSA just happened to run across the fact that they were doing it and maybe even asked them to, they could legitimately see the data and utilise it. The ultimate intelligence cut-out; a whole continent.
Of course there is a perpetual undercurrent of ‘so what’ about the revelation that allies spy on allies as well as enemies. They have been doing so for as long as there have been intelligence agencies and probably before. The Germans are being a little prim saying ‘you do not spy on your friends’ but noticing that the French are suddenly very silent on the matter and not chiming in with their pious sentiment. Also, like every other country, they seem to have no qualms about spying on their own. The Bundesnachrichtendienst (BND) - Germany’s foreign intelligence service made a fool of itself in 2005 when it placed many of the country’s journalists under surveillance trying to find the source of leaks from…the BND. Intelligence is an Ouroboros serpent that feeds itself with itself.
Once you know that if you use the right political math you can gather anything on anybody, well, get out your calculator, there’s data to eat and we’re hungry. It’s an addiction described by Graham Greene, Kim Philby and John Le Carre through memoir and fiction. The covert world is exciting on occasion and as catnip to a field agent or intelligence analyst. Never more so than when an order comes in to monitor a world leader or one of your own country’s politicians. On one side of the ‘special relationship’ a frisson ripples round the UK Security Service or the Secret Intelligence Service as the legal officer gives the OK and the surveillance can begin. On the other, a little shiver shakes the foundations of the NSA presaged by an email or briefing note that begins ‘Under Section 702 of the Foreign Intelligence Surveillance Act of 1978, and Section 215 of the USA-PATRIOT Act of 2001…’ Because then, anything goes.
The former enables collection and reading of the content of communications generated by non-U.S. persons, the second enables the collection of metadata, but not the specific content, of U.S. citizens electronic or digital communications. That they sub-contract to those sneaky Europeans.
Skewed math was also prevalent during a particular painful exchange between House Intelligence Committee Chairman Mike Rogers and University Law School Professor Stephen Vladek when Rogers rewrote the 14th Amendment of the US Constitution on a peek-a-boo basis. He suggested during the hearing at the US National Security Agency (NSA) that it’s impossible to have your privacy violated if you don’t know that your privacy is being violated.
The recalculated amendment according to Rogers would read:
‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws…unless they don’t notice.’
This is the equivalent of a child covering their eyes during a game of hide and seek on the basis that if they can’t see Papa, Papa won’t be able to see them. As with so many things emerging from these exchanges on both sides of the Atlantic, it is not the product of a credible intellect.
The typical defence to all this activity is that of General Alexander to the Black Hat security conference in July of this year. Terrorists live amongst us. This is undeniable. London and New York have had painful confirmation of that. But balance and oversight are the keys and it simply isn’t good enough to allow the likes of GCHQ and the NSA to pursue agendas that are subject to interpretations that go beyond protecting the country and move into mass surveillance for its own sake. There has to be a debate that does not end with governments of every hue deciding to leave the matter in the hands of the spies. The Spycatcher affair of the eighties showed what such abandonment of responsibility led to, with a cabal within MI5 pursuing an overtly political agenda against its own government. There is nothing in the subsequent expansion of digital capability that suggests there is sufficient oversight to prevent this happening again. Worse, a government can pass to the intelligence community, agendas it would rather not expose to voters and therefore have a vested interest in maintaining the appearance of monitoring via committee and legal officers on every office floor whilst paying only lip service to matters, the specifics of which, they would rather not know.
The ultimate calculus of the international intelligence community comes up with the conclusion: ‘If we don’t watch everybody, we might miss something that may threaten our country, our political or our commercial interests or our agency’s existence.’ Two and two do not make five. It is Orwellian arithmetic and it doesn’t add up.
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