Sunday, May 11

No, you morons, you can't save Americans by destroying their freedoms: Pundita's plain-language summary of Stratfor chief George Friedman's magnificent deconstruction of where the war on terrorism has led Americans and their premier spy agency, NSA

I missed the first publication of Friedman's analysis, which was made in July 2013 in the wake of Snowden's first revelations. Stratfor republished the writing this April in response to the awarding of the Pulitzer Prize to the Washington Post and Guardian for their reporting on NSA's mass surveillance programs.
Given Stratfor's famous problems with hacktivists and the allegations that the private intelligence company is much too involved with the U.S. government, I'd have thought that George Friedman would have come out swinging in defense of the NSA. But while his historical review of the agency and its original purpose are evenhanded, he provides the best critique of the American government's current approach to national defense that I've read.  It's so good it brought tears to my eyes, although Friedman makes no attempt to appeal to emotion.  His analysis is almost mercilessly objective, but that is its power.

I had to recall what's publicly known about Friedman's past, his childhood as a refugee from Soviet oppression, to understand why he is one security hawk who sees where the line is -- or maybe it was Snowden's revelations that shocked him into remembering its coordinates.
I'm tempted to republish the entire analysis, which is quite long, because it deserves as wide a readership as possible. For now, I'm going to start around the middle with an apology to Friedman for interfering with the flow of his writing.  Before turning the floor over to him I'll mention something that perhaps many Americans have forgotten or never knew:

It was Friedman who broke the news, on John Batchelor's radio show (based in New York City), that al Qaeda had been responsible for the 9/11 attacks on the USA.  Since then, Stratfor has been on the forefront of providing intelligence warnings about terrorist activity directed against Americans.
Which is a way of saying that this not a security wimp who's warning Americans about the threat to their freedoms from a war that has no end.  When someone like George Friedman sounds the alarm, it's time to pay attention.
Keeping the NSA in Perspective
As we have written, al Qaeda was a global, sparse and dispersed network. It appeared to be tied together by burying itself in a vast new communications network: the Internet. At one point, al Qaeda had communicated by embedding messages in pictures transmitted via the Internet. They appeared to be using free and anonymous Hotmail accounts. To find Japanese communications [during World War Two], you looked in the electronic ether. To find al Qaeda's message, you looked on the Internet.

But with a global, sparse and dispersed network you are looking for at most a few hundred men in the midst of billions of people, and a few dozen messages among hundreds of billions. And given the architecture of the Internet, the messages did not have to originate where the sender was located or be read where the reader was located. It was like looking for a needle in a haystack. The needle can be found only if you are willing to sift the entire haystack. That led to PRISM and other NSA programs.

The mission was to stop any further al Qaeda attacks. The means was to break into their communications and read their plans and orders. To find their plans and orders, it was necessary to examine all communications. The anonymity of the Internet and the uncertainties built into its system meant that any message could be one of a tiny handful of messages. Nothing could be ruled out. Everything was suspect. This was reality, not paranoia.

It also meant that the NSA could not exclude the communications of American citizens because some al Qaeda members were citizens. This was an attack on the civil rights of Americans, but it was not an unprecedented attack. During World War II, the United States imposed postal censorship on military personnel, and the FBI intercepted selected letters sent in the United States and from overseas. The government created a system of voluntary media censorship that was less than voluntary in many ways.

Most famously, the United States abrogated the civil rights of citizens of Japanese origin by seizing property and transporting them to other locations. Members of pro-German organizations were harassed and arrested even prior to Pearl Harbor. Decades earlier, Abraham Lincoln suspended the writ of habeas corpus during the Civil War, effectively allowing the arrest and isolation of citizens without due process.

There are two major differences between the war on terror and the aforementioned wars. First, there was a declaration of war in World War II. Second, there is a provision in the Constitution that allows the president to suspend habeas corpus in the event of a rebellion. The declaration of war imbues the president with certain powers as commander in chief -- as does rebellion. Neither of these conditions was put in place to justify NSA programs such as PRISM.

Moreover, partly because of the constitutional basis of the actions and partly because of the nature of the conflicts, World War II and the Civil War had a clear end, a point at which civil rights had to be restored or a process had to be created for their restoration.

No such terminal point exists for the war on terror. As was witnessed at the Boston Marathon -- and in many instances over the past several centuries -- the ease with which improvised explosive devices can be assembled makes it possible for simple terrorist acts to be carried out cheaply and effectively. Some plots might be detectable by intercepting all communications, but obviously the Boston Marathon attack could not be predicted.

The problem with the war on terror is that it has no criteria of success that is potentially obtainable. It defines no level of terrorism that is tolerable but has as its goal the elimination of all terrorism, not just from Islamic sources but from all sources. That is simply never going to happen and therefore, PRISM and its attendant programs will never end. These intrusions, unlike all prior ones, have set a condition for success that is unattainable, and therefore the suspension of civil rights is permanent.

Without a constitutional amendment, formal declaration of war or declaration of a state of emergency, the executive branch has overridden fundamental limits on its powers and protections for citizens.

Since World War II, the constitutional requirements for waging war have fallen by the wayside. President Harry S. Truman used a U.N resolution to justify the Korean War. President Lyndon Johnson justified an extended large-scale war with the Gulf of Tonkin Resolution, equating it to a declaration of war.

The conceptual chaos of the war on terror left out any declaration, and it also included North Korea in the axis of evil the United States was fighting against. Former NSA contractor Edward Snowden is charged with aiding an enemy that has never been legally designated. Anyone who might contemplate terrorism is therefore an enemy.

The enemy in this case was clear. It was the organization of al Qaeda but since that was not a rigid nation but an evolving group, the definition spread well beyond them to include any person contemplating an infinite number of actions. After all, how do you define terrorism, and how do you distinguish it from crime?

Three thousand people died in the 9/11 attacks, and we know that al Qaeda wished to kill more because it has said that it intended to do so. Al Qaeda and other jihadist movements -- and indeed those unaffiliated with Islamic movements -- pose threats. Some of their members are American citizens, others are citizens of foreign nations. Preventing these attacks, rather than prosecuting in the aftermath, is important.

I do not know enough about PRISM to even try to guess how useful it is. At the same time, the threat that PRISM is fighting must be kept in perspective. Some terrorist threats are dangerous, but you simply cannot stop every nut who wants to pop off a pipe bomb for a political cause.

So the critical question is whether the danger posed by terrorism is sufficient to justify indifference to the spirit of the Constitution, despite the current state of the law. If it is, then formally declare war or declare a state of emergency.

The danger of PRISM and other programs is that the decision to build it was not made after the Congress and the president were required to make a clear finding on war and peace. That was the point where they undermined the Constitution, and the American public is responsible for allowing them to do so.

Defensible Origins, Dangerous Futures

The emergence of programs such as PRISM was not the result of despots seeking to control the world. It had a much more clear, logical and defensible origin in our experiences of war and in legitimate fears of real dangers. The NSA was charged with stopping terrorism, and it devised a plan that was not nearly as secret as some claim. Obviously it was not as effective as hoped, or the Boston Marathon attack wouldn't have happened. If the program was meant to suppress dissent it has certainly failed, as the polls and the media of the past weeks show.

The revelations about PRISM are far from new or interesting in themselves. The NSA was created with a charter to do these things, and given the state of technology it was inevitable that the NSA would be capturing communications around the world. Many leaks prior to Snowden's showed that the NSA was doing this. It would have been more newsworthy if the leak revealed the NSA had not been capturing all communications. But this does give us an opportunity to consider what has happened and to consider whether it is tolerable.

The threat posed by PRISM and other programs is not what has been done with them but rather what could happen if they are permitted to survive. But this is not simply about the United States ending this program. The United States certainly is not the only country with such a program. But a reasonable start is for the country that claims to be most dedicated to its Constitution to adhere to it meticulously above and beyond the narrowest interpretation. This is not a path without danger. However, as Benjamin Franklin said, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."



Col. B. Bunny said...

The exclusionary rule was a salutary, practical disincentive for the state to violate the rights of citizens AND try to impose a sanction on the citizen based on what info was obtained by the violation.

One might be uncomfortable about the content of one's emails and phone conversations being stored in NSA computers but might that be compared to what information about oneself is contained in a physician's files? Don't we already tolerate a certain amount of information in the hands of third persons? Warranted or unwarranted invasion of privacy may be an irritant but it's a minor one by any measure compared to being a guest of the sheriff.

The Fourth Amendment speaks to "unreasonable" searches and in the context of PRISM-like activities directed at al Qaida it's not stupid or deceptive to argue that such searches are "reasonable."

Included in any debate should be a discussion of the "fruit of the poisonous tree" doctrine that appropriately elaborates on the exclusionary rule. Courts that are willing to declare such nonsense as that one has a lessened expectation of privacy in one's automobile or that "inventory" searches are not gross police end runs around the Fourth Amendment (or state equivalents) are well equipped to bless evidence of crime uncovered (as a result of the poisonous tree) if the police are willing to get creative about finding "independent" pointers that brought a miscreant to their attention.

Like any area in the criminal law, we have to take reality into account. Where the activities of Muslims are concerned, I'm willing to have NSA violate my privacy (without possibility of criminal penalty to me) in order to get at real scum. The alternative is no NSA collection at all and surely we can agree that that's not an option that we can afford.

Facial and license plate recognition technology is a related problem for the citizen. One argument in favor of such tools is that we have become such an anonymous and mobile people that we are far removed from the world of 1789. Then I would have been far more subject to "surveillance" of my neighbors and I would not have moved in a see of faces, bodies, and closed vehicles. A horse thief could maybe make 50 miles a day. Today, a car thief can make 1,000 miles a day. Does recognition technology restore more of the realities of community life that existed without debate or worry in 1789?

Pundita said...

Colonel Bunny, thank you for your comment. I have just published a lengthy reply at my blog under the title, " 'The Minority Report' Revisited: Pre-criminalizing the
governed in the era of unrestricted surveillance." Of course you're welcome to respond -- and without the publication delay that your present remarks encountered!