Peter Berkowitz

 

Edward Snowden’s theft of massive numbers of National Security Agency (NSA) documents — the Pentagon estimates he copied 1.7 million intelligence files — and the distribution of those documents to journalists who have sporadically published them has damaged American national security interests around the world by delivering to our adversaries sensitive secrets about US intelligence and military operations. The means by which the NSA collects intelligence have been seriously compromised as have been the numerous relationships on which that collection depends, all to the serious detriment of our security.

So far the pilfered documents have not exposed substantial instances of unlawful conduct by the United States government. Nevertheless, much of the public controversy sparked by the revelations about America’s extensive electronic surveillance has revolved around allegations of government wrongdoing.

In fact, it was no secret that the United States government, partly in response to the threat of transnational terrorism, has for many years engaged in the collection of enormous amounts of information about telephone calls within the United States, calls between the United States and other countries, and calls entirely outside the United States, and that the government has been mining the data. It had also been reported, though never officially confirmed, that the government was collecting and mining enormous amounts of data concerning email traffic that passes through the United States.

Less well understood are the complex laws, procedures, and oversight mechanisms that the United States has adopted to protect citizens’ privacy while culling from its vast pool of digital data only information relevant to the nation’s security. To be sure, in an age in which the size, scope, and kind of data are increasing with astonishing speed, those procedures are far from perfect and are in need of regular review and constant refinement.  Our constitutional tradition, moreover, teaches the importance of unceasing vigilance whenever the government exercises power, especially when it does so in secret. The vital national security interests served by electronic surveillance do not lessen the concern about the potential abuse of government power.

In this edition of The Briefing, members of the Hoover Institution’s Jean Perkins Task Force on National Security and Law deftly explore the complex considerations — technological, legal, political, and strategic — that should inform government’s ability to conduct electronic surveillance and keep secrets while protecting citizens’ rights and ensuring democratic accountability.

My colleagues provide no easy answers.  They do bring into focus the hard issues involved in reconciling the claims of security and of law in a dangerous and digital age.

Berkowitz’s piece is the first in a series of nine essays to be published over the next week and a half. Return to the Briefing daily for new insights from Benjamin Wittes, Jack Goldsmith, Matthew Waxman, Jessica SternShavit Matias, Tod Lindbergh, Ruth Wedgwood, Philip Bobbit, and Kenneth Anderson focusing on intelligence gathering in a digital age.

Peter Berkowitz is the Tad and Dianne Taube Senior Fellow at the Hoover Institution, Stanford University, where he chairs the Jean Perkins Task Force on National Security and Law.

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Benjamin Wittes

 

We all know the story: A liberal government finds itself embarrassed by intelligence collection activities. So it appoints a senior panel of Wise Men to recommend reforms. The Wise Men rein in the intelligence community, proscribing a series of practices that had once been the bread and butter of collection. The intelligence community feels betrayed, micromanaged, and unvalued.

Sound familiar? It should. It’s the beginning of John LeCarre’s famous book, Smiley’s People.

The context in the book is a bit different from our current controversies over the president’s Review Group, the NSA, and bulk metadata collection. LeCarre’s story is about British intelligence officers, not American. Its background is the Cold War confrontation with the Soviets. And the controversies in it involve human intelligence collection, not technical collection.

Yet for me anyway, Chapter 4 of Smiley’s People is a kind of urtext of our current situation — a piece of fiction that captures nearly all of the forces now operating in the NSA debates with an economy of words nothing else I have read compares with. In the key exchange, Oliver Lacon, a political overseer of the service, explains to George Smiley, who has been plucked from retirement in the middle of the night after a former agent is murdered: “[Y]our successor [as head of the agency] decided on certain far-reaching changes of intelligence practice.” Lacon expounds at some length. The following excerpts offer a flavor:

“One of the less controversial exercises of the Wise Men, George — one of their first duties — conferred upon them specifically by our masters — enshrined in a jointly drafted charter — was stock-taking. To review the [agency’s] resources worldwide and set them beside legitimate present-day targets.”

. . .

Lacon hesitated a moment longer, then continued: “Now as a result of this axe-laying — this stock-taking, if you prefer — on the part of the Wise Men, certain categories of clandestine operation have been ruled ipso facto out of bounds. Verboten. Right?”

Prone on his sofa, Strickland incanted the unsayable: “No coat-trailing. No honey-traps. No doubles. No stimulated defections. No émigrés. No bugger all.”

After listening to a bit more, particularly about how the émigré groups — one of which his dead former agent previously headed — had been “dustbinned,” Smiley finally responds: “What utter nonsense.”

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Jack Goldsmith

 

Principals reviewing intelligence collection should reinstitute use of the so-called “Front-Page Rule,” said President Obama’s Review Group on Intelligence and Communications Technologies in its Recommendation 18. “That informal precept, long employed by the leaders of US administrations, is that we should not engage in any secret, covert, or clandestine activity if we could not persuade the American people of the necessity and wisdom of such activities were they to learn of them as the result of a leak or other disclosure.”

Whether a secret or covert intelligence action should be carried out if the American people would not approve is a “bizarre question” to many intelligence officials, according to veteran Washington Post national security reporter Walter Pincus.  “In some 40 years of covering intelligence, I have never heard of such a rule, nor have several former senior intelligence officials with whom I have talked,” Pincus added.  Nor, according to Pincus, do these officials think the rule makes sense.

It might seem odd that the Review Group calls for a return to the Front-Page Rule, and that some intelligence officials question its validity.  Intelligence officials obviously worry about the impact of public disclosure of secret intelligence actions, and the possibility of leaks sometimes leads the executive branch not to pursue a planned intelligence action.  Moreover, intelligence officials take steps in advance of an intelligence action — including extensive lawyer approval and congressional consultation and reporting — to shield against recriminations once the action becomes public.  Memoirs of senior intelligence and national security officials over many decades make plain that they consider the consequences of future public disclosure at the time of engaging in secret intelligence action.

It does not necessarily follow, however, that officials should limit their secret actions to those that they think the public would approve of once disclosed.  One might think, as the intelligence officials who spoke to Pincus argued, that as long as the action is lawful under domestic law, the president or senior intelligence officials can pursue secret intelligence actions on behalf of US national security even if they believe the American people would not approve of such action if disclosed.  One might see executive discretion to act as part of the president’s larger discretion, grounded in Article II, to carry out US foreign policy and preserve national security in accord with his best assessment of US interests, regardless of what citizens think between elections.

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Matthew Waxman

 

The government often does a poor job of defending its most secret intelligence programs when they become public through leaks.  There are some obvious and largely structural reasons for this, including that the agencies conducting the programs are not designed for public relations and that defending intelligence programs may require disclosing even more sensitive information than has been leaked.  The government also, however, tends to fall into some traps that may be avoidable, and an advantage of robust external oversight may be to help ensure that internal justifications will — if necessary — be persuasive to the public.

The most recent example of the government’s difficulty in publicly defending leaked intelligence programs is the telephony metadata program run by the National Security Agency, and disclosed in documents released by its former employee Edward Snowden to the media.  To some extent the government seemed to cripple itself for political reasons in mounting an aggressive defense in this case: the Obama White House took the position that this and other surveillance programs should be re-examined and it held senior officials back from some efforts at public debate.

Many of the problems the government experienced in defending this and related surveillance programs are not unique, though.  They resembled those that arose during other recent disclosures in which the government launched an aggressive and unapologetic public relations campaign, such as in the case of the Bush administration’s enhanced interrogation program.

That the government, and especially the most secretive intelligence agencies, would be poorly suited and practiced to defend sensitive intelligence programs is unsurprising for several reasons.  First, intelligence agencies are culturally oriented toward secrecy and caginess, not toward working with the media and other public outlets. Second, mounting a public defense usually requires officially declassifying some program details or clearing sensitive information for public release.  Not only are these processes cumbersome — usually too slow for media cycles, and certainly much slower than the capacities of skeptics or opponents to launch critiques and allegations — but they have a watering-down effect that results in very general statements with scant detail to back them up.

When they do reach out publicly on intelligence issues, government officials  usually think they are being much more transparent than they are, or than it seems to those on the receiving end of information.  The result is that outreach efforts can backfire: journalists or advocacy group members invited for briefings can leave frustrated and led-on, rather than engaged.

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Shavit Matias

 

There is clearly an obligation of accountability by states to their own citizens. There is also, however, a growing expectation — and often times obligation — of accountability by states to international institutions, organizations, actors, and the public.  These obligations arise not only in foreign affairs and war-and-peace-related issues, or when there is a clear violation of another state’s rights, or in matters of human rights or laws of war, but also in numerous areas that were traditionally considered domestic ones. While this is not usually the focus when discussing core questions of secrecy and accountability, there are emerging international processes — which are quickly and at times chaotically developing — that are evolving to have bearing on this issue as well.

Quite counterintuitively, in the last twenty years, one can see a growing (albeit grudgingly and selectively at times) compliance by states with at least some of the expectations of international reporting or investigations. States are increasingly subjecting themselves (whether willingly or otherwise) to international reporting requirements, investigations, and monitoring. The reporting, monitoring and international investigation teams are in almost every area imaginable, including trade, finance, banking, government contracts, environment, human rights, intellectual property, health, education, transportation, democracy practice, law enforcement and judicial proceedings, military investigations, compliance with the laws of war, nuclear issues, methods and practices of combating money laundering and terrorism, combating corruption, and combating human trafficking. States yearly submit dozens of voluminous reports to UN bodies and other institutions under bilateral and multilateral treaty obligations — to the OECD, World Bank, IMF, regional trade groups, WTO, and FATF, just to name a few — as well as to other states, including in instances where there is no treaty or legal obligation to do so but there exist other interests in providing information.

In these processes states are increasingly finding themselves reporting, addressing and providing detailed information — sometimes what was before considered sensitive information — to international actors on issues that in the past have been considered purely domestic, or, in extreme cases, information relating to national security interests. Depending on the case the reporting may be subject to verification, and the report and investigation conclusions many times will be available online for all to see, including other international institutions, international dispute settlement mechanisms, and international courts. The reporting verification or investigation process in any of these areas may be complex, including hundreds of questions posed to states whether in written or oral form, the submission by states of reports of hundreds of pages in minute detail, verification by teams of international investigators, hearings, and more.

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Jessica Stern

 

“Every age has its own kind of war,” Clausewitz prognosticated in the early 19th century.[i]  And the corollary is that every age has its own kind of intelligence requirements and seductions. The terrorist and sub-state enemies we face today are hard to find, mutable, and globally spread, with constantly shifting agendas, locations, and alliances.  They exploit vulnerabilities and lawless areas wherever they can find them — on the Internet, in war zones, in the chaos that has emerged out of the Arab Spring.   The al Qaeda movement, among the most dangerous of these enemies, is deliberately targeting Americans for recruitment.   All of these characteristics, together with advances in monitoring technologies, would seem to make signals intelligence a uniquely and irresistibly useful tool.

Equally important, protecting American lives from terrorist attacks usually involves violence.  The enemy is playing jujitsu, using the unavoidable collateral damage that accompanies military action as a propaganda tool to recruit others to its side.  Even drone strikes — an increasingly discriminating weapon — are a propaganda boon for the enemy.  Thus, our “kinetic” responses to terrorism enhance the enemy’s ability to spin its false narrative — that the US aims to harm Muslims and destroy Islam.

The surveillance programs disclosed by Edward Snowden clearly horrify privacy enthusiasts.  But to some students of terrorism, they are, at worst, a lesser evil, in that they are less likely to be useful in the enemy’s psychological-warfare campaign than are other counter-terrorism tools.   They do not seem to target any particular ethno-religious group, but all groups everywhere, thereby reducing the propaganda benefits to the enemy.  The fact that these programs target Americans as well as others makes it even harder for al Qaeda to point to this particular quiver in the wars on terrorism as a way to “prove” that the West aims to destroy Islam (although it is no doubt true that al Qaeda will find a way to use Snowden’s revelations — not only to improve its counter-intelligence, but also in its propaganda war against us.) For all these reasons, among others, some students of terrorism favor intelligence and covert action as more effective responses to terrorism, at least over the long term, than overt war.  But that doesn’t mean that the operations disclosed by Snowden are legal or ethical.  (I will leave the legal evaluation to my colleagues.)

How do we evaluate the ethics of intelligence?   In the paragraphs below I propose a series of questions — developed by theologians, philosophers, or scholars of intelligence to assess earlier military or intelligence dilemmas — which might usefully apply to the current debate initiated by Snowden’s leaks.

The first questions relate to just war.  The surveillance programs disclosed by Snowden, at least so far, clearly pass the hurdle of jus in bello, which requires proportionality of means, the avoidance of unnecessary harm, and noncombatant immunity.  In this regard, signals intelligence would seem to be a relatively benign component of the war on terrorism.

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Ruth Wedgwood

 

In recent years, consumed by the war against al Qaeda, we have addressed secrecy and accountability in a homegrown way — concerned with information the American executive branch has kept to itself, what was shared with the Congress (though a transcript is often not made at the instance of both parties), and who should take the blame for things that go wrong.  This has been a preoccupying exercise, for no one likes to be labeled as the father of an irregular event, and when made the object of surveillance, the American people tend to be jealous of their privacy.  The collection of MUDS and LUDS — now famous as telephone ‘metadata’ — may be familiar to every street prosecutor (or at least, to this former fed), but it has indeed not required even a search warrant in a criminal investigation.  This will not lessen the startle of John Q. Citizen — who does not like to suppose that someone could be following his every move.

But in welcoming public discussion of accountability in the campaign against terrorism, we have allowed evasion of a different aspect of decency — the question of how we address the circumstances of conspicuous violence and mass destruction in civil wars.  This is, so often, tantamount to another form of terrorism, since armed factions often deride the idea of an organized state and have no scruple about attacking civilians.

We have set up international war crimes tribunals to deal with the cruelties of terroristic acts in recent civil conflicts, but we have allowed the bending of their judicial neutrality to suit a politics of convenience.  The fact that such acquiescence has many authors does not improve its rank flavor, for it is the opposite of accountability.  Despite the high idealism of investigators, lawyers and judges, more than crumbs have been swept under the rug, to preserve a record that suits the evolving politics of friends and allies.  Criminal courts should be known by what is prosecuted and punished, not what is shredded or buried in their files.  An “arrangement” of the French variety also leads to a rank distortion of the historical record, inconsistent with any ideal of even-handed justice.  Certainly it undercuts a policy of deterrence, instructing that much will be forgiven, and indeed forgotten.

Two examples should suffice for this meme of evasion, with its averted eyes of silence.  The first is the civil conflict in Rwanda, which cost the lives of nearly one million people.  At the urging of the United States, a Hague war crimes tribunal was established by the UN Security Council, acting under the chapter 7 powers of the UN charter.  The court was given a mandate to examine any violations of the law of war, as well as acts of genocide and crimes against humanity during the bloody events of the calendar year 1994.  Investigations and prosecutions were, of course, supposed to go where the law would take them, without playing favorites.

It was logical that UN prosecutors would focus first on the terrible slaughter in spring 1994 — when some 800,000 Tutsis and others were beaten and cut to death by the brute means of cudgel and machete, wielded by the legions of Hutu Interahamwe.  The witnesses to these crimes were still resident within Rwanda, and the active cooperation of the victorious Tutsi regime was necessary to make the charges stick.

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Tod Lindberg

The Mail of Others

 

How big a deal is the revelation of widespread National Security Agency data mining operations directed at our European allies, or the NSA listening in on the cell phone of German Chancellor Angela Merkel? On one hand, there has certainly been a public uproar about an overweaning and disrespectful America whose intelligence services are either out of control or, worse, doing exactly what American leaders would like them to do. American ambassadors have been called on the carpet and foreign leaders have spoken out in indignation. Offense has been taken and apologies sought. On the other hand, there has been little talk about a critical rift in transatlantic relations, such as accompanied the George W. Bush administration’s decision to go to war with Iraq in 2003. On the contrary, the Obama administration’s NSA scandal now seems likely to pass from the scene without major consequence.

Our German allies seemed especially troubled over the NSA story, not least for the reason that the German press corps sensationalized to the point of gross inaccuracy its reporting on the leaked documents renegade NSA contractor Edward Snowden disseminated. If Germans thought the NSA was reading their email and routinely listening in on their cell phone calls, they could be forgiven, since that was the tenor of the reporting.

Of course the actual NSA program was focused on metadata collection — not the content of calls and emails, but which numbers and IP addresses connect with each other and when. But these details emerged only after the initially sensationalized coverage hardened an impression of indiscriminate snooping.

As for listening in on Angela Merkel’s cell phone, the United States was guilty as charged. Doing so was almost certainly an error of judgment on the part of US officials. But what kind of error — one of prudence or of principle?

Reflecting on the events, many commentators have concluded that the US should have eschewed such surveillance because officials should have reasoned that any potential benefit from the snooping would be outweighed by the damage that would be done in case of disclosure. This consequentialist reasoning is certainly more relevant than ever now that the United States is finding it so much harder to keep its secrets. The likelihood of disclosure may indeed constitute sufficient reason to refrain from such surveillance.

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Kenneth Anderson

 

Press publication of selections from Edward Snowden’s purloined National Security Agency documents has focused attention on issues of surveillance.  In the months and years before those May 2013 revelations, however, the secrecy and accountability debate focused on drone warfare, not on NSA surveillance.  In the drone warfare secrecy and accountability debate, at issue was (and still is, just muted today) public disclosure of drone strikes and targeted killing by the CIA, operating under the authority of Title 50 of the United States Code.

The end of the first Obama term saw critics sharply intensify a public campaign aimed at politically, morally, and legally delegitimizing drone warfare. The campaign continues today. Those who unapologetically endorse drone warfare need to understand that the soft underbelly of counterterrorism conducted using drones and targeted killing is the legitimacy of these programs’ secrecy, accountability, and oversight. Legitimacy is the soft underbelly in that it is vulnerable and needs shoring up; it’s vulnerable because in a democracy, where government is accountable to the people, of course such issues have to be addressed.  If they are not, continually and forthrightly, silence raises questions about whether the American people should believe their own officials as to what these programs do and how they do it.

Many critics, to be sure, regard accountability and oversight as a procedural stalking horse for delegitimizing drone warfare as such, and particularly drone programs conducted by the CIA.  No process of either targeting or transparency will ever be enough; they will happily take whatever gains are offered by way of transparency as grounds to ask for more.  The appetite grows with the eating.  Irrespective of political goal, however, critics are not wrong to question the adequacy of the accountability mechanisms and oversight of these programs.

Clearly, there is room for certain reforms of secrecy, accountability, and oversight structures, but reform should proceed under two fundamental premises. First, there are legitimate government secrets. Second, accountability and oversight are the responsibility of the political branches alone, not of unelected and unappointed individuals such as Edward Snowden. These two premises are, importantly, not merely claims of politics or national security necessity; they are propositions about legitimacy and its terms.  Moreover, this is not simply a call for transparency in the form of more speeches and statements by senior officials, though those have been a vital tool of articulating national security law and its evolution, and of defending its legitimacy.  It is about reform at the statutory level — and one might begin with Title 50’s definition of “covert action” as a prelude to oversight processes that flow from it.

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