In the wake of Edward Snowden’s revelations about the U.S. Intelligence Community — and the subsequent storm of protest — President Obama appointed a blue ribbon commission to survey the situation and report back with recommendations. Headed by Richard Clarke, chief counterterrorism adviser on the National Security Council in the Bill Clinton and George W. Bush administrations, it included a lifelong CIA professional and a trio of university professors with experience in both law and security policy (one of whom is a colleague of mine and an expert on privacy matters). The contents of their report — just made public — were certain to raise controversy.
I have neither time nor the paid-pulpit to write for you all a detailed description of the panel’s findings. But links to good articles about the panel should suffice. How about you familiarize yourself with their report, then come back here? I’ll wait. You can read their document: Liberty and Security in a Changing World.
Or skim through summaries:
The Right Call on the NSA in the Washington Post.
Protecting Citizens and their Privacy in the New York Times.
== A not-unexpected transition ==
In 1997’s The Transparent Society (TS) — and especially the infamous twilight zone moment on page 206 — I appeared to forecast the 9/11 attacks with chilling detail, then went on to describe the “ratchet effect” process under which a frightened public and Congress would rush to hand new powers of surveillance over to our Professional Protector Caste (PPC).
I also suggested that, as time passed and fears ebbed, there would come rising calls for turning back the ratchet and reclaiming control over the security services. That time has apparently come, spurred in large part by the Whistle Blower phenomenon described in TS.
Still, let’s remember the Big Picture Context of it all… that a time will come, someday, when we are terrified, once again. When all the “Orwellian” talk will seem far less important than empowering our protectors with any powers they claim to need.
Shall we ride this roller-coaster helplessly, oscillating between submission and indignation? Or else, how about this alternative? That we bear that inevitable future trauma in mind now, as we choose which post-Snowden reforms to demand… and which ones have a plausible chance of working?
== What can even possibly work? ==
A. Any surveillance powers we take away from them now will later be given back (as I just said) during the next emergency. And more.
B. It matters far less what members of the PPC see and/or know than what they can do to us. And controlling what they do requires a different set of tools.
C. Any attempt to limit what elites can see or know bears a burden of proof that it is even possible. Not once in human history is there a clear example where society’s elite members were effectively barred from using a technology of surveillance, once it became available. As we saw a decade ago, re Total Information Awareness or TIA (2003), forbidding such powers merely chases them to deeper shadows, in a futile game of Whack-a-Mole.
D. What we need is trust, an ability to know that elites are being held accountable to high standards and to obeying their own rules. The minutia and details of wire-tapping/traffic-analysis/content sampling will change faster than any regulations that we establish. But knowing that the watchmen are being watched – on our behalf – by savvy and trustworthy representatives of the People… that is priceless and immeasurably important.
== The Blue Ribbon Report ==
With those (abbreviated) principles in mind, shall we look at the recommendations of the blue ribbon Clarke Panel?
1. Demanding that the NSA et al stop storing bulk phone and internet metadata, allowing instead for it to be cached by some neutral or commercial site… is a minor palliative. Yes, it would add a step, a party who can ask “where’s your court order?” One parallel is the recent Boston Marathon Bombing, in which the police went door to door, asking to view private security cam footage. In that heinous case, cooperation came swiftly — but they did have to ask. And a sweep for cam images to, say, catch casual Bostonian pot smokers would meet more resistance.
Oh, I am all for this measure. But this is mostly a sop to the headlines. Given that the FISA Court is a rubber-stamp mockery, the obstacle of a “court order” is meaningless. Anyway, let us suppose that the activists’ fond fantasy occurs and that metadata collection is “banned” across the board. And you’d actually believe it? My only response will be a sadly derisive headshake and sigh.
2. Recommended: that fishing for internet-carried personal data should also require a court order. Okay, fine, the Fourth Amendment and all that. Though this – again – depends upon the words “court order” regaining meaning. Also… privately, I think only a fool counts on any Internet content remaining reliably secret. Not when every month another massively “secure” database spills like a broken dike. Case in point, last week’s spill of 40 million credit card records from retail giant Target. Again, sure, let’s do as the panel recommends. But don’t assume it matters.
3. Transparency in the system… (all right, there’s my word). Allow and require that phone and internet providers announce publicly the general nature and number of disclosure orders they receive from the government. Now we’re getting somewhere. Even without the specifics, we the people will get a sense of what’s going on. But I’d go much farther. For example, there should be an expiration date on releasing all specifics about who and what was being trawled. An utter maximum of fifteen years with a “fleet average” disclosure time of five years.
Numbers 4 & 5 & 6 all try to parse distinctions between Americans and non-Americans. Part of this is to reassure foreigners and allies — a necessary measure if Pax Americana is to retain any leadership cred. These recommendations also attempt to maintain an archaic special status for U.S. citizens, in the context of an equally archaic mission statement for the NSA to aim its gaze only at foreign threats. Finally, the panelists add some rigmarole to require fine parsing of rights not-to-be-spied-on, including promises that foreign data-sifting will only go after Really Bad Things. Okay, sure, why not? If I had been on the panel, I’d have helped write these. Though I find political posturings tedious.
Only now — at last — we get to the important parts — recommendations that might actually matter. Where some actual good might come out of the panel’s findings.
7. Our legal system — indeed our market economy, democracy and science, too — are all based on one fundamental premise, adversarial comparison of competing views. Only competition pierces delusions. Moreover, any “court” that is not effectively adversarial is no court at all.
Hence, the panel recommends that “Congress should create the position of public interest advocate to represent the nation’s interests in the protection of privacy and civil liberties before the Foreign Intelligence Surveillance Court (FISA). In addition, the decisions of the court should be far more transparent; they should be declassified whenever possible.”
8. The panel further proposes that “Congress should create a strengthened and independent Civil Liberties and Privacy Protection Board with authority to review government activity relating to foreign intelligence generally, and not only for counterterrorism, whenever that activity has implications for civil liberties and privacy.”
These two (number 7 & 8) go after the heart of the matter. We should not concentrate on demanding blindness where it cannot ever be verified and where some future panic will reverse every assurance. Rather, we should act vigorously to end our own blindness to what is going on, within the Intelligence Community (IC).
Sure, that community needs tools of secrecy in order to do their jobs. But it must always be TACTICAL secrecy, limited in scope and duration and always under the gaze of savvy, perceptive overseers who are not members of the Club. Yes, those overseers should be trustworthy, discreet, security cleared and all that… heck almost any American retiree would have been more reliable than the community’s own insiders, Bradley Manning and Edward Snowden! But we need assurance that someone nosey, smart and always-questioning will be looking over the shoulders of these folks we are entrusting with vast power.
Recommendation number seven makes a stab at this by setting up an advocate to make the FISA Court adversarial, instead of a mockery. But I’d go farther. There should be several such advocates, all of them with proper security clearances of the highest trust, but diversely appointed by and answerable to a variety of elements and stake-holders, including private groups, even perhaps adversarial ones such as the Electronic Frontier Foundation. Sure, I’d negotiate any degree of vetting that the Community requires in order to ensure that the actual overseers are discreet, but ultimately these positions have to be adversarial in the truest sense, or no trust can be established.
Further, there must be some way to evaluate the Court’s performance, its balance and continuing credibility. That means an appeals process that actually looks into complaints and can effectively deter sweeping fishing expeditions or voyeurism. Finally, as I will reiterate and first proposed in my novel EARTH (1989), there must be a clock of expiration on the secrecy of its orders. Without that measure – ending secrecy after its tactical value has expired — there is no credible accountability at all.
Likewise the membership of any “independent Civil Liberties and Privacy Protection Board” must be eclectic. Such boards are all-too often captured by the agencies or industries they are charged to supervise. Its members must be vetted, cleared and discreet, of course. But they must be appointed from a pool selected from — (or at least trusted-by) — as wide a sampling of American interests as possible… or there will be no trust.
Is this a big enough swivel for you? From ho-hum yawns to flaming radicalism? Can you see the theme? I care less about what our protectors know than what they can do.
I have elsewhere offered a number of additional suggestions for trust-building measures that would assure citizens they have regained supervision powers (even by proxy) over their public servants.
Foremost among these would be to create the high office of Inspector General of the United States (IGUS) who would then take command over the IG inspectorates dispersed everywhere in government, removing them from appointment or pressure by the secretaries and directors they are charged to oversee. I would also establish panels of well-vetted, cleared and discreet Fair Witnesses chosen from a large pool of randomly picked citizens…
…but by now you well-understand parameters of my militant radicalism. All measures that are actually effective will be at this end, increasing “sousveillance” or the ability of citizens to regain authority and sovereignty, less paranoid about how much our protectors see than watching carefully what they do.
The flip side — which is, alas, getting all the attention by press, politicians, punditry and public — telling our PPC not to use new powers to see, is a nonsensical endeavor and doomed to fail. It is a puerile and futile distraction… which may be why that side of things gets all the attention.
== The Mavens Finish Up ==
Our panel’s ninth recommendation goes back to the fantasy-land called private encryption, promising to keep government hands off and to allow private ciphers for citizens and corporations. Yeah right. Oh, I have no objections to this provision, just cynicism. In the nineties I told all the encryption fans that all their fancy algorithms and libertarian fantasies would not matter… nor have they mattered, nor will any of it matter in the future. Yawn.
Point number ten suggests that the Intelligence Community backpedal from the insanely stupid use of ‘trusted’ contractors, low level military enlistees and other potential leakers. A completely unneeded proposal, as the IC is right now pulling in such contract work as fast as it can, bringing back in-house many of the services that had been farmed out in the 1980s and 2000s fetish to “privatize” – a mania that never delivered efficiencies or cost-savings and simply demolished security. With two upshots:
First, Bradley Manning and Edward Snowden have made sure that it will be much harder for there to be more Bradley Mannings and Edward Snowdens. That bolt has been shot and – mixing metaphors – all the low hanging revelatory fruit has been plucked.
Moreover, no one in the IC will go to jail for anything that those two revealed, for one simple reason: in fact, nearly everything that they revealed was legal. Much was embarrassing, and the two henchmen-gone-wild did us a service by restarting this whole conversation! But on the level of heinous illegality, they barely qualified as “whistle-blowers,” at all.
Second, and despite that, I have long believed that Whistle Blower laws badly need updating. Manning and Snowden and Julian Assange represent not aggrieved individuals but a personality type that abounds within America and the West. A character trait that we have nurtured and fostered and propelled with three generations of Suspicion of Authority (SoA) memes in nearly every Hollywood film. These fellows serve to represent a general category, one that will not go away.
Hence, the government and all other elites need to gather meetings and discuss (with the rest of us) how to make lemonade. How to ensure that this trait keeps shining light on matters that badly need discussion… while by that token convincing a vast majority of potential Snowdens that the system (for all its faults) is listening, and perhaps deserves loyalty for another year.
It is a tightrope act, a striving for balance that is the price of complex, enlightenment civilization. We should now study and discuss just what a whistle-blower is and how we can maximize the benefits of this deeply American impulse to denounce what you think may be wrong, while helping to make sure that future Mannings and Snowdens weigh every factor, and have systemic means to point out error that will net-benefit the society that fostered them. There are dozens of clever ways to do this…
… and they must await another time. Suffice it to say that I’m glad we are engaged in this conversation, and to play my own weirdly radical role in it.
Look. Our parents and their parents passed through crises and adjustments and ructions worse than any that we now face; so why the failure of pragmatic confidence? We are capable of fine-tuning a republic and civilization, even while we are riven by a trumped-up and wholly unnecessary Civil (culture) War.