Managing NSA’s Public Image

It’s silly to expect a spy agency like the NSA not to spy. But the NSA — and Congress — should do more to rebuild public trust

Joshua Foust
Jul 9, 2013 · 6 min read

Once all the intrigue of Edward Snowden fades away, we are going to be left with some weighty issues to ponder. Is the NSA some out-of-control Orwellian agency, spying on everyone to create a police state that will repress us into submission? Is the system of checks and balances fundamentally broken, or is there some middle ground where executive power can be retrained? Is there a better balance we can strike between operational security and safeguarding civil liberties?

Last week, Director of National Intelligence James Clapper issued a public apology for his misleading testimony before the Senate in March of 2013: “Faced with the challenge of trying to give an unclassified answer about our intelligence collection activities, many of which are classified, I simply did not think of Section 215 of the Patriot Act,’’ Clapper said, referring to the numerical provision for the phone tracking program.

There is a lot to debate about Clapper’s poor phrasing during his testimony, including whether it was even appropriate of Senator Ron Wyden to directly ask Clapper about a classified program in open session. But it is also clear that Clapper committed a major gaffe: Instead of responding with something like, “The intelligence community obeys the law; I can provide further details in closed session,” he stated an untruth. He lied.

The consequences of that lie are still being worked out. Government officials deliberately misleading the public is a big enough problem under ordinary circumstances, but an intelligence official being caught lying right before a series of scandalous revelations about the intelligence community’s conduct is extremely damaging. It creates the public perception that the administration is systematically misleading the public about the scope and intent of its policies.

In fact, many will argue just that: The government is lying about its intelligence activities. But of course it is. Complaining the government lies about espionage is a tautology; by definition, intelligence activities involve lying and misleading. The bigger question is whether the government is behaving properly despite lying about what it does — this is where oversight comes into play.

Oversight is arguably where the entire NSA debate will end up mattering the most. It seems clear that the surveillance programs causing such uproar follow the letter of the law, but that may not be enough. The question is whether there is any way to safeguard against abusive-but-legal policies when an agency operates in a state of near-total secrecy.

So far, there is no evidence that the NSA has systematically abused its position — and when it’s been caught exceeding its mandate it has been scaled back. Despite widespread, completely legitimate fears that dragnet mass surveillance will oppress American public life, it hasn’t happened yet.

The Obama administration has briefed Congress dozens of times on its surveillance activities — that’s why so many Senators have been surprised at the outcry. It’s normal for them. The Huffington Post received one list of such briefings from an administration source, listing 22 separate meetings. Did the administration properly describe the NSA’s full range of activities? Did Congress ask the right questions? We don’t know but it appears that at least some form of oversight took place.

In addition, despite unusually high approval rates for surveillance requests submitted to the Foreign Intelligence Surveillance Court, officials insist it is not a rubber stamp. A high rate of approval, they argue, merely reflects the collaborative relationship between intelligence agencies and the court. Because they work with the court to make sure their requests are likely to be approved, they say, the high approval rate is misleading.

There is a big difference between “no oversight” — the current charge du jour in the NSA debate — and “oversight I find inadequate.” Without further details, we cannot say for certain whether the oversight the NSA and other agencies are subjected to is sufficient or not. Absent confirmatory evidence that there are strict safeguards in place — “trust us” does not work when officials have been caught lying — all that is left is a deep seated dislike at the depth and breadth of surveillance being conducted regardless of the law.

If the FISA Court rejected more requests, the public would likely feel better about the review process — even though it would indicate that the government had been making a higher number of improper requests, it would lend the impression that the court serves as a check on government power. Right now, the conventional wisdom has solidified around calling the FISA Court a rubber stamp, regardless of whether that’s true.

The impossibility of suing the court is a major problem as well. The so-called Clapper ruling, decided 5-4 in the last week of the Supreme Court’s session this year, prevents court challenges to surveillance. It is an affront to common sense: Because an aggrieved party with a reasonable belief it has been surveilled by the government cannot prove such activity (after all, it’s secret, and the government can’t be compelled to confirm surveillance because it’s secret), it does not have standing to sue the government.

Such circular reasoning has become a feature of legal challenges to intelligence operations in America. Last January, a federal judge in Manhattan ruled that the government cannot be compelled to release a legal memo authorizing the summary execution of American citizen Anwar al-Awlaki because the “thicket of laws and precedents” that keeps everything so secret it is above challenge. “The Alice-in-Wonderland nature of this pronouncement is not lost on me,” the judge wrote, saying it had created a legal environment that amounted to “a veritable Catch-22.”

It is a difficult balancing act. The U.S. intelligence community is subjected to far more public scrutiny than any other intelligence service on the planet — and even then it operates largely in secret. Congress has a unique opportunity to step in and shed some light on the nature of intelligence operations. The circular legal structures that allow for secret interpretations of secret laws need to be made open. It won’t be easy: Senators Ron Wyden and Jeff Merkley have tried to change laws to require more open legal reasoning for intelligence operations but both were voted down by their fellow Senators. The House of Representatives seems even less amenable to scaling back secret intelligence activities in the name of counterterrorism.

The intelligence community also needs to be more upfront about the tradeoffs inherent to this discussion. Most members of the public are not trained in counterintelligence: They do not understand the damage or lost opportunities that come from certain kinds of openness. Public education about how those tradeoffs will play out in real life — even if it results in some lost effectiveness in some quarters — is a vital step toward rebuilding trust that intel operations are in the public interest.

Then again, it’s possible none of these scandals are really constructive at all. It could be that the hesitance to revisit the most expansive surveillance activities are little more than protecting the intelligence community’s rice bowl in an era of persistent budget cuts. We also don’t know how effective any of these programs are, again because secrecy prevents the government from bragging about most successes.

What’s clear, however, is that the social contract between the public and the secret operations happening under our noses is changing. Whatever the past was like, it is soon going to be unacceptable to perform worrying or even distasteful activities with a reasonable assumption they will stay secret. Details might still be concealed, but operations (and their legal bases) realistically will not be.

It will put the U.S. at a disadvantage: Russia and China do not subject their intelligence agencies to the sort of public scrutiny the NSA and CIA face. But that is the choice the public is creating. Secrets cannot stand the way they once did. Rather than fighting a desperate rearguard action to preserve what’s left, the intelligence community and Congress should be working on how to strike a better, more publically acceptable balance.

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