July 29, 2013

Beware of Bogus NSA "Reforms"

Politicians are well known for "blowing in the wind" of the perceived public opinions of the moment, and especially when politicos seem to suddenly change their own stated opinions, it's usually time to figuratively get a good grip on your wallet.

This doesn't apply only to financial matters, either.

The spectacle of congressmen who until recently were gung-ho in favor of pervasive NSA surveillance programs suddenly changing their tunes may seem like a good sign, but there is every reason to be deeply suspicious of where this might lead in the longer term.

It's easy to forget that in the aftermath of 9/11, George W. Bush received astoundingly high approval ratings for his pushing through of the PATRIOT and Homeland Security Acts, which enabled expansive NSA warrantless domestic surveillance and greatly expanded the use of National Security Letters and rubber-stamped actions of the FISA court.

Swings of the "reform" pendulum are especially noteworthy in U.S. history. Just to name three relatively contemporary examples, we saw notable attempts to reign in "secret" activities after the release of "The Pentagon Papers," fallout from President Nixon's "Watergate" mess, and in the aftermath of President Reagan's "Iran-Contra" affair.

Few if any of the resulting "reforms" were long lasting. Over time, everything went pretty much back to "business as usual" for the spooks and their allies, despite snapshot polling showing public support for reforms, and political gamesmanship by politicians at the times of these scandals.

There is every reason to anticipate that any reforms this time around short of major, structural alterations, will also fade over time. If there's a significant new attack on U.S. soil, all bets are instantly off, and we'd likely see large majorities demanding that congress decimate our remaining civil rights in the name of ostensible public safety.

Of particular note today are the politicians who enthusiastically supported Bush-era NSA and other surveillance programs that today they're attempting to condemn under Obama. Their dissembling has been raised almost to an art form, as they weave and squirm and try to claim that their pro-PATRIOT votes weren't what they seem, that they somehow misunderstood what they were voting for -- or argue that Obama has run wild.

The reality is much clearer if you look at their old pro-PATRIOT speeches, and videos of their attacking anyone who dared to speak out against massive surveillance expansions domestically and internationally. On the GOP side in particular, there may have been some true changes of heart, but it's obvious that what's mostly going on is the usual GOP game plan: "Get Obama any way you can, don't let the facts or history stop you!"

With all this as preamble, what about the actual "reforms" now being proposed? Are they meaningful? Would they last even under optimistic scenarios?

It's a decidedly mixed bag.

I'm relatively (emphasis on "relatively") optimistic that we may see useful reforms in terms of "procedural transparency."

We need to know more about what programs NSA and other agencies have in force, and what kinds of information those programs are gathering. That is, stop trying to hide the programs themselves (we're not talking about operational data) from the American people.

Reforms in this area would be more transparency in the FISA court, and especially allowing Internet firms to report on the numbers (at least in terms of numeric ranges) of FISA actions and other data demands with which they are served. Firms like Google, Apple, and Microsoft (telecoms like AT&T and Verizon seem far less interested) have been virtually begging the federal government for the right to explain in broad terms what is actually happening, so that they can fight back against hyperbolic, unsubstantiated, false claims. The government's refusal so far to permit such reasonable reporting is doing genuine and completely unfair damage to these firms, like forcing them to try play baseball on the international stage with their arms handcuffed and their legs shackled.

This is an intolerable situation, created and enforced by the government as a result of callously and hypocritically not trusting the American people to understand national security issues.

Once we move beyond basic transparency to more operational matters, the risks of being suckered by essentially "fake" reforms rise dramatically.

For example, there's much talk now about changing the NSA phone call metadata program so that rather than the government holding the database, it would be maintained by the telcos themselves or perhaps some "independent" third party.

Sounds good at first glance, but given the level of access NSA would likely demand to that data -- no matter where it physically resides -- there's a major chance that this "reform" would in practice be little more than shuffling deck chairs on ... well ... you know.

The upshot of all this is pretty easy to see. Government in general and intelligence agencies in particular have legitimate security and surveillance needs, which historically grow out of control, are pulled back a bit by a swing of the pendulum, but over time seem to always expand in the long term.

And these agencies and politicians -- we will stipulate for ostensible good motives -- have also become experts in playing a gigantic version of "three-card Monte" with the public. Like the old "shell game," we think we know what's going on, but lack of information combined with purposeful diversions conspire to separate us from our money almost every time.

None of this is to suggest that we should not pursue every opportunity for meaningful reforms of NSA and affiliated agencies (and the same can be said of similar agencies around the world operated by other countries). And this is especially true in the case of serious, structural reforms that might have at least a chance of lasting past the next major election.

We've been fooled before -- many times before -- both by disingenuous actions and the simple march of time causing abuses to fade in the public's mind.

We may be unable to escape this same fate today. History suggests that this will indeed be the case.

But we can at least try to prove history wrong this time.


Posted by Lauren at July 29, 2013 02:26 PM | Permalink
Twitter: @laurenweinstein
Google+: Lauren Weinstein