Michael Hayden on the Effects of Snowden's Whistleblowing

Former NSA director Michael Hayden lists three effects of the Snowden documents:

  1. “…the undeniable operational effect of informing adversaries of American intelligence’s tactics, techniques and procedures.”
  2. “…the undeniable economic punishment that will be inflicted on American businesses for simply complying with American law.”
  3. “…the erosion of confidence in the ability of the United States to do anything discreetly or keep anything secret.”

It’s an interesting list, and one that you’d expect from a NSA person. Actually, the whole essay is about what you’d expect from a former NSA person.

My reactions:

  1. This, I agree, is actual damage. From what I can tell, Snowden has done his best to minimize it. And both the Guardian and the Washington Post refused to publish materials he provided, out of concern for US national security. Hayden believes that both the Chinese and the Russians have Snowden’s entire trove of documents, but I’m less convinced. Everyone is acting under the assumption that the NSA has compromised everything, which is probably a good assumption.
  2. Hayden has it backwards—this is good. I hope that companies that have cooperated with the NSA are penalized in the market. If we are to expect the market to solve any of this, we need the cost of cooperating to be greater than the cost of fighting. If we as consumers punish companies that have complied with the NSA, they’ll be less likely to roll over next time.
  3. In the long run, this might turn out to be a good thing, too. In the Internet age, secrecy is a lot harder to maintain. The countries that figure this out first will be the countries that do well in the coming decades.

And, of course, Hayden lists his “costs” without discussing the benefits. Exposing secret government overreach, a secret agency gone rogue, and a secret court that’s failing in its duties are enormously beneficial. Snowden has blown a whistle that long needed blowing—it’s the only way can ever hope to fix this. And Hayden completely ignores the very real question as to whether these enormous NSA data-collection programs provide any real benefits.

I’m also tired of this argument:

But it takes a special kind of arrogance for this young man to believe that his moral judgment on the dilemma suddenly trumps that of two (incredibly different) presidents, both houses of the U.S. Congress, both political parties, the U.S. court system and more than 30,000 of his co-workers.

It’s like President Obama claiming that the NSA programs are “transparent” because they were cleared by a secret court that only ever sees one side of the argument, or that Congress has provided oversight because a few legislators were allowed to know some of what was going on but forbidden from talking to anyone about it.

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Posted on July 24, 2013 at 2:52 PM • 53 Comments

Comments

Ken Hagler • July 24, 2013 3:23 PM

That “special kind of arrogance” is commonly known as a conscience. It doesn’t take much to trump the (nonexistent) moral judgement of a bunch of politicians and secret policeman, either. Frankly, I’d trust the moral judgement of a serial killer over those people.

NobodySpecial • July 24, 2013 3:46 PM

So foreign customers dropping Amazon/Microsoft/Google because Snowden revealed they were being spied on – means Snowden, not the NSA, damaged these US companies ?

EH • July 24, 2013 4:04 PM

…the undeniable operational effect of informing adversaries of…

Note that “adversaries” is not qualified. Adversaries of whom?

Hmmmm..... • July 24, 2013 4:08 PM

“But it takes a special kind of arrogance for this young man to believe that his moral judgment on the dilemma suddenly trumps that of two (incredibly different) presidents, both houses of the U.S. Congress, both political parties, the U.S. court system and more than 30,000 of his co-workers.”

Change the words a bit and it sounds like something coming out of Berlin commenting on Schindler and his list.

legion • July 24, 2013 4:12 PM

Frankly, I’d take issue with all of these statements.
“…the undeniable operational effect of informing adversaries of American intelligence’s tactics, techniques and procedures.”
No, it is entirely deniable. As more information comes to light and more uncomfortable questions get asked, it becomes increasingly apparent that, not only were other countries (both friendly and otherwise) not surprised by the NSA’s activities, they are actively doing the same things to their own citizens.

“…the undeniable economic punishment that will be inflicted on American businesses for simply complying with American law.”
As you point out – this is a feature, not a bug. If acting as subcontracted Stasi against their own customers & fellow citizens actually starts to harm businesses, they will be less likely to quitely cooperate with such requests in the future.

“…the erosion of confidence in the ability of the United States to do anything discreetly or keep anything secret.”
This one however, takes pure chutzpah. You’re worried about things like that, Hayden? F*ck you. As an American citizen, I’m more worried about _my_ ability to do anything discreetly or keep anything secret. If my government can’t leave me the ability to do that myself, I don’t give a fuzzy rat’s ass if they can do it themselves.

Mr. Hayden, if you can’t do you your job without violating the Constitution as a matter of basic, standard, everyday operational procedure, then you you purely suck at your job.

Spaceman Spiff • July 24, 2013 5:43 PM

Sheesh! You screw people over and then wonder why they are upset? Hayden is a dickhead…

Nick P • July 24, 2013 7:34 PM

@ Byron

“But it takes a special kind of arrogance for this young man to believe that his moral judgment on the dilemma suddenly trumps that of two (incredibly different) presidents, both houses of the U.S. Congress, both political parties, the U.S. court system and more than 30,000 of his co-workers.”

I’d add that if we were going to do any ad hominems we’d do well to check credibility of parties involved. Almost every entity he named has a long history of questionable judgement and unethical, sometimes criminal, behavior. Hayden too. Snowden, although not ideal, would look quite credible if balanced against them.

Canuckistan Bob • July 24, 2013 8:44 PM

“But it takes a special kind of arrogance for this young man to believe that his moral judgment on the dilemma suddenly trumps that of two (incredibly different) presidents, both houses of the U.S. Congress, both political parties, the U.S. court system and more than 30,000 of his co-workers.”

Sounds kinda like something Caiaphas would say…

Dirk Praet • July 24, 2013 8:55 PM

@ Bruce

  1. I call speculation. For all we know, China, Russia, Israel and probably some other nations already had all details about the programs revealed by Snowden, including the operational intricacies that so far have remained unpublished. If an organisation has several tens of thousands of people on its payroll, and some additional hundreds of thousands of contractors, it is unlikely that Snowden would be the first or the only person ever who has leaked intel. Competent terrorists, intelligence agencies (that were not involved) and security professionals have assumed the activities brought to light by Snowden for quite a while. This leaves only the incompetent terrorist and the general public as “adversaries” who didn’t know or at least didn’t assume so.
  2. Fully agree with your point. It’s completely naive – bordering on hybris – to assume for a minute that they could have kept this secret for ever, and the economic damage caused to said companies should have been an important issue in business impact analysis/risk management when setting up these programs. At this time, we also don’t know which companies were forced into them, and which ones more or less voluntarily enrolled in the hope of generating additional revenue streams from the government.

Finally, there is the small issue of USG, NSA, DoJ and companies alike knowing all too well that these programs would be totally violating non-US laws such as the EU Data Protection Directive and the impact thereof on EU-US Safe Harbour and other agreements.

  1. I’d say it goes much further than the erosion of confidence in the ability of the US to do anything discreetly or keep anything secret. As a consequence of Snowden’s revelations, many US citizens are losing or have totally lost confidence in all three branches that have been colluding in this questionable mass surveillance. And even more so outside the US, where more and more people are calling out POTUS and USG for the hypocrites they are.

why.ask.my.name • July 24, 2013 8:58 PM

On Hayden’s statement about Snowden’s “arrogance”:

Snowden was the only faithful person – young or old – who was aware of these systems.

He was faithful to conscience (not some imaginary thing as the detractors would argue, and take note — that is how much of a conscience they have left).

He was faithful to the constitution. The constitution is a powerful document, which helped to found the modern “free world”. Combined with the constitution was the concept the founders had in mind of what that freedom means, and what threats it faces. These, also, were very enlightened concepts.

He was faithful to the people, and to the future people. If the US was not the major superpower on the planet, that they were the founding nation of freedom who had gone totalitarian would be a sad footnote. As it stands it is an abomination.

It is Hayden and his peers who are the arrogant ones. And, right now, they are sitting pretty. We can guess they know very little of the negative possibilities of these surveillance powers. Which means they know very little of Nazi Germany, of Stalinist Russia, of North Korea, of Maoist China, and countless other past and current totalitarian states. This also shows he knows nothing about Hoover’s abuses or how his abuses perverted the political and legal system.

It shows they know nothing of how not only can these systems be abused, but how they can not be controlled. Which says they should never have been in charge.

(Why are bad men and women put in charge of nations, is an entirely different subject matter. And, according to as much as they know, there is no “why” to it.)

It all sounds good for these guys while their pride is in full swing, and they will continue to beat their chests at the sky and say, “There is none greater”.

Darwin • July 24, 2013 9:02 PM

Hayden is a fascist pure and simple. He is an enabler of the confluence of state, military and corporations which is the definition of fascism.

why.ask.my.name • July 24, 2013 9:58 PM

Everyone in foreign nations who was concerned about the Americans spying on them were already aware of these systems. They may have just suspected it, but they would have operated as if it was the case.

This same case is true for all of the people themselves involved in these systems or advocating them.

They are aware they themselves are being watched. And they have some very dim level of cognizance of how those watching them are completely competent in using that information they get from spying on them.

They are simply lulled into complacency by their own pride; a product of having a lifetime of doing bad things and never having to pay for any of that.

Those watching them simply have not yet used that information against them. That is their business. It is an old business. They always collect their debts.

Nathan • July 24, 2013 10:09 PM

The current surveillance regime is right because 30,000 bureaucrats can’t be wrong?

Good luck with that angle, NSA stooges.

Chilling Effect • July 24, 2013 10:13 PM

I wonder if the “groupthinking” intelligence leadership might ever consider that the best way to stop leaks and maintain necessary operational secrecy might be to welcome transparency, oversight, and the Rule of Law rather than shoving more and more of the government behind a curtain of secrecy.

As more and more activity occurs behind that curtain, more and more people will have access to classified information. That means a greater chance of some of them becoming troubled and outraged at what they learn. Specifically, that our leaders have apparently decided that the institutions of the constitutional form of government are incompatible impediments to their War On Terror. Thus, to secure the Homeland, they have decided it’s necessary to create a classified dictatorship of secret laws rubber-stamped by secret courts, where they’re free to surveil anyone they want, any way they want, without checks and balances and other “legacy” constraints getting in their way.

Someone who learns that classified truth may well decide that they would rather risk harsh vengeance (which seems to be the classified dictatorship’s version of justice, judging by the treatment of Bradley Manning) than to live under a regime that resembles East Germany more than the United States.

Perhaps if our leaders decided to earn the respect and credibility of the public by waging War on Terror according to the Rule of Law rather than skulkily working to circumvent it, people who are part of the system would not feel compelled to violate their obligations. And it’s even possible that we might be willing to accept the loss of some of our liberties and privacy if we could be certain it was truly necessary and effective, and that oversight, checks, and balances were maintained. What Snowden has revealed is that we should be more afraid of our own government than our ostensible enemies.

It’s becoming increasing apparent to me that the real danger to national security is the obsessive secrecy that apparently conceals a unilateral decision that the United States must be transformed from an open society with a transparent credible government into an authoritarian security state with secret laws and secret courts.

Our constitution used to be our nation’s treasure, a unique source of strength, pride, and authority in the world community. What Snowden has revealed is that our leaders now consider it vulnerability that needs to be circumvented when it can’t be eliminated. What the terrorists began, our own leaders are working to finish. I’m sorry, but I cannot believe that protecting America requires the preemptive destruction of what makes America worth protecting.

Michael Moser • July 24, 2013 10:38 PM

…the undeniable economic punishment that will be inflicted on American businesses for simply complying with American law.”

The only thing that can change these policies is if the big tech companies stand up and state that snooping is bad for business. I think that’s why he lists this threat as number 2 (undeniably).

Nick P • July 24, 2013 10:42 PM

“the undeniable economic punishment”

It’s also funny he’s worried about arrogance and economics. He was the one who supported the Trailblazer project that wasted $1.2 billion in taxes. All the while, he ignored his bright minds that opposed the program while proclaiming to be the one making NSA management more “open.” That means he was a wasteful, hypocritical, and a fool.

Note: It might not have been “waste” if the NSA/military executives were intended beneficiaries. Many people moved back and forth between high paying positions during that SAIC contract.

jake • July 25, 2013 1:02 AM

statements from any intelligence official must always be parsed keeping in mind that the entire function of an intelligence organization is to commit crimes and lie to people on behalf of the nation they represent. the whole “war on terror” or whatever the justification du jour happens to be, their response will be the same: “blah blah blah, preservation of national security is more important than your rights”. i would like to think that eventually someone in charge of one or more of these organizations would realize “holy shit, maybe we would do more for the good of the people and overall national security by actually respecting their rights and still protecting them against foreign intelligence operatives”. it is exactly these rights that US intelligence services have so blatantly trampled on that have made the US a great place. sabotaging your own infrastructure: MISSION ACCOMPLISHED.

minor spelling error “we need to cost of cooperating” –> “we need the cost of cooperating”

Wesley Parish • July 25, 2013 1:09 AM

“…the undeniable operational effect of informing adversaries of American intelligence’s tactics, techniques and procedures.”

This is nonsense and should be called out as such. I suspect the Soviets got more out of the USS Vincennes’ shooting down of Iran Air Flight 655 than they found out through conventional spying means. As a matter of fact, one can read their entire discussion of SDI countermeasures in the light of that mass murder.

As a matter of fact, since the US has spent the last two decades lecturing the Russians and the Chinese on civil liberties and the wholesomeness of the freedom of speech and so on and so forth, it is a fair bet that they had already filled in the holes and determined the tactics, techniques and procedures. It’s just the application of mathematical analysis techniques to non-mathematical real-world situations, in the way that cryptology is the application of mathematical techniques to linguistic patterns, etc. Yawn.

“…the erosion of confidence in the ability of the United States to do anything discreetly or keep anything secret.”

Corrigendum: the erosion of confidence in the ability of the United States to do anything intelligent or behave sanely given the constraints of constitutionally responsible government …

Nobody believes that any government can do anything discreetly or keep secrets for any great length of time. The Soviets tried that; so did the Third Reich; the various incarnations of national government in France, both monarchist and republican, tried that; need I go on?

It’s rather whether or not a given government can do anything intelligent or sane in any given circumstance, that creates confidence or destroys it. And the US Federal Government is its own worse enemy in that regard.

Simon Cozens • July 25, 2013 1:09 AM

Congress has provided oversight because a few legislators were allowed to know some of what was going on but forbidden from talking to anyone about it

This is why I find it so amusing that the Obama administration slammed the Amash amendment for not being “the product of an informed, open or deliberative process.”

Eh, that might be because Congressmen having informed, open deliberation about the NSA would be illegal.

tensor • July 25, 2013 1:12 AM

I so completely, totally, fully and truly believe that the system which left an unsupervised twentysomething holding piles of secrets can protect me from terrorists. In fact, I sincerely recognize this is the best possible protection my money can buy. Snort

As our Emperor Security demands prosecution for the thief who stole his weightless finery, I have some advice for his miserable little lackey, Hayden: thank your stars you don’t live in a just society, where you’d now be on very public trial for wasting government funds. The damning evidence? Your NSA pay stubs.

Vinzent • July 25, 2013 1:16 AM

http://www.investigativeproject.org/3035/al-qaida-use-of-encryption

I think that makes point 1 pretty obsolete. The only “damage” I can imagine – now that the rest of the public knows it is being watched – is that the general use of encryption tools may rise, thus the probability that someone using encryption is also a bad guy may become lower.

I hardly consider that “damage”. So far it doesn’t seem that the US government made any distinction between bad and good guys, anyway.

JeffH • July 25, 2013 2:54 AM

So, essentially, the smear/distraction campaign continues, and is significantly biased towards ‘look at all the damage done’ so as to attempt to control/reverse public opinion. Hardly surprising from (former) government drones, but disappointing nevertheless.

This has been a stellar opportunity for people like Hayden to be balanced, neutral, to argue for sense, to call for calm & rational behaviour, to acknowledge flaws when they are brought to light, like our (worldwide) intelligence communities are supposed to. It wouldn’t be even terribly hard to portray themselves as the good guys (from a public relations point of view). I count Hayden as speaking for the NSA as you don’t quote him as ‘former NSA director’ in CNN unless you expect to get an opinion piece from someone akin to the NSA’s thinking.

If the NSA were truly an organisation that deserves to remain operational, they’d be saying ‘yes there’s damage done, but ok, we also over-stepped, our bosses (the American people thank you Mr Hayden, not some bunch of bureaucrats) are pissed, and greater transparency is clearly needed’.

Notably, I say this with double meaning. The NSA firstly should be stating these things because it’s the right thing to say (and do). Secondly they clearly are useless at PR and how to portray themselves. As an organisation devoted to communications & analysis of what people say (and don’t say), this is genuinely astonishing.

Instead, we get opinion pieces like this that make anyone associated with the NSA look like former Stasi who got a job in the US after the Curtain fell. What’s next, non-people?

sheppo • July 25, 2013 3:52 AM

Snowden did that, or the NSA did that when the project went live? It sounds like a typical statement from a government agency shifting blame rather than admitting their own failures. Gotta secure that funding!!

Aspie • July 25, 2013 4:35 AM

@Byron makes a good point. Much of what politicians and their minions say is logically flawed or at the very least divisive and questionable.

As far as the goverment’s feature-creep in surveillance, this is a natural concomitant to technological advances. Without a legislative branch that is tech-savvy, diligent and truly independent (immune to threats from the shadows), then the controls imposed will always fall short of wider interests.

But is the cat already well outside the bag and legging it across the nearest field? If the IC has so many dirty secrets to use against anyone who could oppose it (including prospectives) are we back to the bad old days of Hoover?

wiredog • July 25, 2013 6:11 AM

.the undeniable economic punishment that will be inflicted on American businesses for simply complying with American law

From John C. Dvorak at PCMag:

Microsoft, despite denials, appears to be in bed with the NSA. Apparently all encryption and other methods to keep documents and discussions private are bypassed and accessible by the NSA and whomever it is working with. This means a third party, for whatever reason, can easily access confidential business deals, love letters, government classified memos, merger paperwork, financial transactions, intra-corporate schemes, and everything in between.

With that said, do you really want to buy a Microsoft product? Do you want to buy anything that gives easy access to snoops poking around at their leisure? If you’d think twice about this, then why would a foreign government rely on Microsoft Office with any confidence? Personally, if I were any foreign government or corporation, I’d stop using all Microsoft products immediately for fear of America spying on me. Nothing can be secret.

Dinah • July 25, 2013 7:23 AM

Hayden’s #3 comment reads like every cop movie: the rookie whistleblower is told by the captain that if he outs the bad cops then people’s trust in the department will erode. This complicit captain doesn’t blame the bad eggs who have caused reason for erosion of trust, but only blames our whistleblowing hero. This logic sounds silly on the silver screen and it sounds silly coming from Hayden.

TheDoctor • July 25, 2013 8:02 AM

Here in germany the #2 backlash is getting in it’s tracks.

We have a “Federal Commissioner for Data Protection and Freedom of Information” and this government agency gives foreign corporations clearance for data handling according to the Safe Harbour Treaty.

Without such a clearance no Facebook, no Amazon, no Google can do personal data related business in germany.

The agency stopped all new applications for such clearances and they are reconsidering the existing clearances.

…and they can deal out hefty fines…

Picador • July 25, 2013 11:11 AM

The open contempt for democracy in these comments is really breathtaking. All of the “costs” boil down to complaints that the American people are able to interfere with the unpopular, secret operations of their government.

dbCooper • July 25, 2013 11:45 AM

“…the undeniable economic punishment that will be inflicted on American businesses for simply complying with American law.”

This statement from Hayden, and similar statements from members of the executive and legislative branches of the government are what really trouble me.

These folks are making the determination the surveillance actions are lawful. This needs to be decided by the judicial branch, SCOTUS, and not the secret FISC. Only then will we know the actions were (are) lawful.

David • July 25, 2013 2:14 PM

If I remember my facts correctly Osama Bin Laden did not use the internet, nor had any electronic footprint outside of his compound. He had couriers bring him materials by hand (hard drives, and USB key fobs).

How does spying on the US population “aid” the enemy when they don’t even use the technology that the NSA is spying on????

Oh, are we talking about a different “enemy”??

John • July 25, 2013 3:38 PM

<

blockquote>How does spying on the US population “aid” the enemy when they don’t even use the technology that the NSA is spying on????

From the US Military Oath of Enlistment:

I, (NAME), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.

It would appear that the only way to reconcile this oath with the current actions of the NSA in particular and the US Government in general is if the general population of the US has been determined to be “the enemy” – or, perhaps more likely, that you’re now an enemy until proven otherwise. The optimist in me hopes that isn’t the case. The realist in me thinks there may well be a secret ruling being interpreted as having declared the US Population “the enemy”.

If you start from the assumption that the US population has been declared “the enemy”, then informing the US Population that they’re being spied on does, in fact, aid the enemy…

Different View • July 25, 2013 4:40 PM

I’ve come to different conclusions after thinking over Hayden’s statement, your post, and some of the comments. Each point in turn:

1 – Damage to national security

The problem is that the US sustains serious damage simply by virtue of the increased probability that Snowden’s stash has been compromised. Expensive operations must be altered or abandoned; methods that may have required significant investment cannot be trusted; and sources need to be reassessed or downgraded. Regardless of your perspective on the ethics of Snowden’s, or the US Government’s, actions, this conclusion seems inescapable.

2 – Corporate cooperation

Hayden’s point is that interested parties in foreign countries (i.e. foreign electronic communications providers and those invested in them) will use the legally required compliance of American companies as leverage to pressure their own governments into providing greater shelter and support for non-American companies, even though foreign governments have the same practices and requirements in place.

He’s not talking about a shift in consumer preference for companies with better privacy safeguards against the government. So I think your argument doesn’t quite address his point.

3 – Confidence in the ability of the US Government to keep a secret

You say that this might be a good thing, in that it alerts governments to the fact that keeping information confidential is difficult given information technology. I suppose the underlying claim is that, if governments everywhere see how easily information can escape, then governments may be more likely to be deterred from undertaking illegal or unpopular actions by the possibility of exposure.

Granting that, the governments most likely to be deterred would be democratic governments, i.e. governments that, while certainly imperfect, are more constrained and responsive to law than any other. By contrast, authoritarian and otherwise non-democratic governments would be less deterred, even though these governments are much more likely to engage in conduct that we would want to be deterred.

So the benefits are really:

  • some measure of reduced likelihood of illegal or unpopular acts by democratic governments

while the cost is:

  • decreased coordination and cooperation among democratic governments, which implies
  • decreased ability of democratic governments to counter malicious actions by private actors (including international terrorist organizations)
  • decreased power of democratic governments (comparing simply their power with greater and with less cooperation/coordination) relative to non-democratic governments.

I think Hayden gets the better on this point.

4 – the “how dare he” reaction to Snowden

I’m sympathetic to your point, but also to Hayden’s. We’re a democracy, with elected representatives to vote upon laws that determine what and how the government may attempt to gain access to information. Also, recognizing that confidentiality is important to the efficacy and efficiency of some government functions, we have laws governing how and when government may classify certain information.

I think the key question is whether the laws in question are legitimate choices by a democratic government. That is, even though we may think that judicial oversight could be stronger (perhaps we’d include a kind of devil’s advocate in the proceedings, with a greater diversity of judges, with more public reporting of court opinions), or legislative oversight could be stronger, we agree that the existing law is a legitimate choice. If it is, then while we might seek to change the law via legal avenues, we should not attempt to obviate the law via illegal avenues.

This is a much harder question than the issue of whether the laws in this case are as good as we’d prefer. And it seems defensible, on the basis of some of Snowden’s statements (e.g. the Constitution only enables the government to spy on foreign governments against which Congress has declared war), that Snowden did not give due consideration to this question. That is, he simply decided he knew better – he answered the easier question regarding whether the law met his own preferences – without investigating the harder question regarding whether someone might reasonably think differently.

Quite obvious • July 25, 2013 6:19 PM

@Different View:

4 – the “how dare he” reaction to Snowden: (legitimacy of law)

Problem is that with FISA you actually do not know which law is being applied and whether or not that law has passed the democratic process.

Part of the democratic process is that “demos” knows the rules and therefore can appeal them (or change them via legal avenues)

Michael Moser • July 25, 2013 6:56 PM

One more comment about the importance of the money argument:

If one is all for snooping then the sited argument is ‘national security’ – a very pressing concern. If one is against snooping then the only argument one has are ‘civil rights’ – this is a matter of principles, meaning that is not of immediate concern; there is always something more urgent to override matters of principle.

If one states that snooping is bad for business then this again moves the argument against snooping into the realm of urgent issues.

Clark and Son • July 25, 2013 7:08 PM

My viewpoint is that there’s got to be a (pro-NSA) position out there to explain why disclosure is a bad thing and that this shouldn’t happen (ever?). Most of this is just rhetorical jousting to allow sound bytes or provide (philosophical) cover to those really high up who might have to answer very hard deep national (constitutional) questions. They will never answer operational questions so number 1 really doesn’t exist. It’s quite existential. It will never be ‘undeniable’ in reality.

I think all questions are simply hand waving defenses — number one especially.

Theory for 1:
As an experienced nation state adversary(?) — one cannot be so naive after so many years to not understand the mission of the NSA. I’m not aware that operational or tactical information has been explicitly revealed — NSA collection of every bit of information that travels around the globe should be obvious to any professional security leader for the last 20 years?! It was pretty much revealed in 2003 with the little boxes at AT&T. So — now that someone has provided a means of having TO deny — yes there may be questions about deniability (I expect any question about what NSA is actually doing to be answered with — ‘I cannot say’ or some weird – ‘this is the best truth I can provide’). What we want from government is a public question — does America want secrets to be kept, those secrets could be about things which are very ugly and perhaps against the fundamental principles of right, freedoms, and government scope. Were do you find safety?

Theory on 2:
Please explain more why American businesses might be harmed by this secret government policy? Do you (NSA) believe now that collection has been elucidated explicitly rather than inferred and deniable (but the same operation) that consumers will react differently? Why? Doesn’t NSA provide all the safeguards and anonymity of the innocent with their programs? Is there something that we should be concerned with?

No theory on 3 — just, so what. I’d like to know who is making deals with whom which might affect ME as a citizen. Secret negotiations seem to be all the rage now. No confidence really in a government that seems really quite selfish.

The morality thing — in some circles your morals are at best and most easily described by the things you purchase. You should be a consumer of goods — a worker for the economy. Feel good by your monetary success and this shall be the metric of your moral superiority. Right — Wrong … not worth the argument.

Dirk Praet • July 25, 2013 8:12 PM

@ Different View

  1. I refer to my previous coment. Statistically, it is highly improbable that Snowden is the first and/or only person who has managed to leak intel on NSA’s operations. The principal damage done to national security is that the general public both inside and outside the US is now aware of what’s going on too. I bet the Russians, the Chinese and many others have known for years, with or without Snowden’s stash having been compromised.
  2. … even though foreign governments have the same practices and requirements in place.

That may be the case, and Huawei as well as ZTE have been accused of doing so to the point that US lawmakers have been pushing for a product ban. Following the same logic, how can the US have any problem with foreign governments calling for similar bans on US companies that are doing the same ? Because the US are the good guys ?

An additional point is that most private persons as well as companies, and especially government agencies probably prefer being spied upon by domestic agencies they at least have some leverage over, than by foreign agencies to which they are nothing more than cattle and have zero control over. Moreover, and with the exception of Huawei and ZTE, I know of no other non-US governments/companies that are currently proven to have such systems in place. Granted, and let’s not be naive: I know of some good candidates that are rumoured to do so, but for which no hard evidence is on the table today.

  1. I think you’re missing the point. Everybody will agree that it is necessary to keep operational details of intelligence agencies secret in order for them to do their work. It’s an entirely different thing to withhold from the general public that all their communications are being watched and that such systems have been put in place without there ever having been any public debate about it. I reiterate a point that has been made by many in this context: in a democratic society, there is no place for secret orders issued by secret courts based on secret interpretations of the law, and with only minimal oversight in place.

  2. …We’re a democracy, with elected representatives to vote upon laws that determine what and how the government may attempt to gain access to information.

When a former US president (Jimmy Carter) says that his country does not have a functional democracy anymore, I think there is at least reason for some minor concern. When the principal author of the Patriot Act (Sensenbrenner) says that it was never drafted to grant the administration the powers the government (secretly) interprets Section 215 as, there may be reason for some additional concern. Under the rule of law, the way an administration and its department of justice interprets the law cannot be secret. No citizen can be expected to understand or abide by the law if the administration or DoJ interprets it in ways he/she is kept in the dark about.

Contrary to your assumption, I think Snowden has given a great deal of consideration to the question whether or not to reveal the secret mass surveillance and the way all three branches have been colluding to put it in place. Given the very small majority with which the Amash/Conyers amendment was voted away yesterday, it would seem that quite a lot of Congressmen are starting to see it the same way.

Figureitout • July 25, 2013 9:09 PM

Everybody will agree that it is necessary to keep operational details of intelligence agencies secret in order for them to do their work. It’s an entirely different thing to withhold from the general public that all their communications are being watched and that such systems have been put in place without there ever having been any public debate about it.
Dirk Praet
–You certainly have a way of wording reality very smoothly and elegantly. It’s a European trademark for sure, I definitely see it in Germans more so than most others. Crisp, clean, and sharp. Maybe it’s the linguistic skills of Belgians, they’re very talented in that area as I never had to worry about learning Flemish b/c damn near everyone spoke English!

I really don’t know why it wasn’t huge news that a former president of this country called it non-functioning democracy.

Sounds more like “Different View”‘s perspective is the same one being crammed down my throat. I think it’s nonsense w/o getting to explicit. Go view the legislative process, talk to your legislators; do you even know who your legislators are?!

John Campbell • July 25, 2013 9:23 PM

Conscience…

Well, I doubt that Snowden will ever answer “I was only following orders”.

I may disagree with how much detail is exposed but the basic issue of trust in the secrecy-obsessive organizations… and the people who are supposed to be providing oversight… needs to be raised.

Who do YOU trust.

And why, oh why, are people expected to turn a blind eye to these kinds of things just because they are ordered to?

mfeldt • July 26, 2013 2:25 AM

@DifferentView


Hayden’s point is that interested parties in foreign countries (i.e. foreign electronic communications providers and those invested in them) will use the legally required compliance of American companies as leverage to pressure their own governments into providing greater shelter and support for non-American companies, even though foreign governments have the same practices and requirements in place.
He’s not talking about a shift in consumer preference for companies with better privacy safeguards against the government. So I think your argument doesn’t quite address his point.

That’s not the point – it doesn’t matter who is punishing the companies, it matters why they are being punished (if they are). And here, the cause maybe Snowden’s revelations, but the reason is clearly the NSA’s actions.

Al • July 26, 2013 5:12 PM

I think what people are often overlooking is that the real problem with the Snowden story is that the NSA is blackmailing everyone one from Pelosi. We can’t have a realistic conversation about data security matters but we can’t tell whether people are saying what they think or what the NSA, etc. made them say.

Also: it seems to me that Google began making more efforts to get me to give it all of my email addresses around the time Google Translate got better. Maybe the NSA is paying Google to find out everyone’s backup email addresses with translator technology.

Wesley Parish • July 26, 2013 8:14 PM

One thing it might be worth mentioning in relation to point 2:
“…the undeniable economic punishment that will be inflicted on American businesses for simply complying with American law.”

Ars Technica has an interesting article on the Three Degrees of Separation between me, you and the gatepost. Now according to what this article tells me, the NSA is well within the three degrees of separation between it and those wishing harm on me and mine. And there are a number of major US IT companies in bed with the NSA, willingly or not. And as we have seen from the Snowden effect, people get affected by having access to such power over such a vast number of people. Snowden revolted; others may just suck it up and suck it in, then go looking for markets on the which to sell. It’s a high probability.

Now does the average citizen of the world want to get any closer to the likes of Bin Laden than they already might have? If they are with the likes of Microsoft and Microsoft sells to NSA and inside the innards of the NSA someone makes secret private deals with Bin Laden, they are already well within those three degrees of separation. So is the entire NSA, and thus the NSA and Microsoft would need to be pre-emptively bombed back to the Stone Age.

Different View • July 27, 2013 10:41 AM

@Dirk:

1 – my point has nothing to do with whether foreign governments were already aware that the NSA was conducting the type of surveillance reported recently in The Guardian and The Washington Post.

My point involves the trove of documents that Snowden has not released, i.e. documents that he, and Greenwald, say do expose operational secrets of the NSA that would harm the NSA.

The US must assume that those operational secrets – again, from documents not disclosed to the media – are either compromised, or are more likely to be compromised.

That, by itself, requires the US to alter existing operations, rely less on existing methods and sources, and invest more heavily in alternatives. And that is damaging to national security.

2 – we’re not talking about the same thing. Hayden’s point relates to cases where, for example, a French comm company uses popular reaction to the NSA coverage to get the French govt to adopt more protectionist measures in favor of the French comm company. The rationale offered to the French people is, “the French comm company will protect your secrets better.” But the truth is that the French comm company – and the American subsidiary that would do business in France – are both equally subject to French law which gives the French govt just as much, if not more, access to information as the US government.

Your point is that other governments may want to protect their comm companies to enhance their national security. That may be true, but it has nothing to do with Hayden’s point.

3 – my point here involves the question of whether the US is able to keep any information at all secret. Your point involves whether the US should keep court interpretations secret. These are two different things.

4 – It’s often difficult to separate the application of law from the description of law, particularly in the area of judicial interpretation. To keep operational methods secret, it may be necessary to redact anything in a court’s opinion that allows those methods to be deduced (or just estimated with a significantly high level of probability). But in doing so, we will lose an important part of why the court decides as it does. There is a tradeoff between operational security and public transparency, but it’s not quite as clear cut as “secret law” vs “open law”.

Let’s be clear that we do know what law the FISC applies. That law is open and publicly available. What we don’t know is how the FISC would resolve inevitable ambiguities of law when applied to certain types of situations. To be uncertain as to how a court, or an administrative agency, or the executive, will interpret and apply a law isn’t entirely unusual, and in fact we often tolerate such uncertainty as a matter of choice. In certain instances, we also don’t know after the fact as to how a court or executive precisely analyzed the law as applied to certain facts, as the facts themselves are kept secret. This isn’t unique to the FISC.

Now, no question, there is a choice here to be made between public transparency and operational secrecy, and it’s a choice that exists along a continuum. That is, we can have varying degrees of public transparency; it’s not a discrete, binary, either/or type of choice.

Currently, with respect to electronic surveillance of foreign intelligence targets or international terrorist organization targets, we have chosen a policy which is weighted towards operational secrecy. FISC court opinions are sometimes released, though redacted, and doubts about a release tend to be resolved in favor of protecting operational secrecy.

The rule of law is nonetheless protected by the independence of the judiciary. Judges who sit on the FISC, and on the FISC of Review, are all sitting federal judges, appointed for limited terms by the Chief Justice of the US Supreme Court. These judges are not agents of the executive branch.

If any evidence collected by a measure authorized by the FISC is used in court during a criminal prosecution, the accused will be able to have access to the information and to challenge the legality of its collection. This is no different than “sneak and peek” search warrants, or indeed any warrant for electronic surveillance (including more “ordinary” wiretaps used in criminal investigations); these can be challenged if and when they are used in court against the accused, but not before.

We can certainly, if we choose, select a different choice along the spectrum, requiring for example more disclosure of FISC opinions, and less operational secrecy. We can even decide, if we wish, that an individual must be notified whenever a court is considering allowing electronic surveillance of him, and allow the individual to challenge the surveillance in court before it ever occurs (obviously, there are serious disadvantages to this choice). But that’s a choice we should make as a democracy, through existing democratic mechanisms.

name.withheld.for.obvious.reasons • July 27, 2013 11:06 AM

@Different View

My point involves the trove of documents that Snowden has not released, i.e. documents that he, and Greenwald,say do expose operational secrets of the NSA that would harm the NSA.

Okay, so as long as we protect the NSA then everything is oki-doki. Thanks for clearing that up for me. Do you know where I can get my government issued brown shirt?

And that is damaging to national security.

Could you please ascribe the term “National Security”, use it as specific to any action or operation. For example; does it include troop movements, battle plans, ration and supply lines, strategic theatre planning, military operational comms, ammo depot locations, the addresses, phone numbers, or email addresses of military personnel or other international military forces. This vagary about the term national security is ridiculous. I just don’t have the time to address the rest of your assertions.

Dirk Praet • July 28, 2013 8:56 PM

@ Different View

  1. I should have been more clear by explicitly stating that SIGINT and HUMINT divisions at the PLA, FSB, Mossad and probably some others not only were aware of what was going on, but were also familiar with many if not all details contained in Snowden’s treasure trove. The chances that only one idealist out of about a million folks with clearances was able to get this information and pass it on IMHO are about as likely as you and me getting killed in a simultaneous terrorist attack spread over two continents by 7PM tomorrow.
  2. We are talking about exactly the same thing. Picture Hayden’s newspaper boy revealing in the neighbourhood that his wife has been having a secret affair with the pool cleaner and that this has been going on for years. What is the more likely scenario after scrutinising the evidence ?

a) The pool cleaner getting fired pretty much all over the neighbourhoud by concerned husbands and Hayden filing for divorce because both have betrayed his trust ?
b) The newspaper boy getting fired and depicted as a drug crazed highschool drop-out, violating employer-employee trust and sticking his nose into stuff he has no business with.

In the first scenario, it really doesn’t matter whether or not the next pool cleaner will shag his wife too or even run off with her. The essence of the matter remains that a number of US based companies – willingly or unwillingly – not only have violated the trust of their users but probably quite some laws and regulations in countries all over the globe.They are now getting the bill for that, and righteously so.

  1. That question has been answered with a strong “no”. The more people are in on a secret, and the bigger the subject matter covered, the more likely it is that sooner or later it will come to surface. Such is the nature of all things secret. Believing otherwise is either incredibly naive, or bordering on utter incompetence, which in extreme cases like this for all practical purposes is indistinguishable.

  2. This goes to the heart of the matter, and your argument is pretty much that of the current and previous administrations when you say:

Currently, with respect to electronic surveillance of foreign intelligence targets or international terrorist organization targets, we have chosen a policy which is weighted towards operational secrecy.

It goes much further than operational secrecy. Many people today are asking themselves whether or not the blanket surveillance revealed by Snowden is legal, and if so, whether or not it is constitutional. Although ultimately this will be up to SCOTUS to decide, I have very serious doubts about it and I bet you a fine bottle of single malt that all of these secret programs have been put in place under the “national security” flag of secrecy because all three branches knew very well that it wasn’t and that there was simply no way in hell they would ever get the Constitution amended in the usual way as to reflect the powers they so desperately craved for in their “war on terror”. So they reverted to secret interpretations of Patriot Act and FISA instead. In 2012, the FISC approved all 1,856 government requests. Since 1979; it has declined just 11 of the more than 33,900 surveillance requests made ( http://online.wsj.com/article/SB10001424127887324904004578535670310514616.html ). That’s no oversight. That’s a rubber stamp.

The analogy with Hayden’s wife and her lover are clear: love (or lust) does not supercede the pre-nup. If she felt she had everything to lose by informing Haydn about her affair, leaving him or trying to get their current arrangements revised, then her only option was to keep it secret.

I fully agree with you that change, preferably, comes through the way of democratic process. But when people start to experience that these have been subverted by a ruling elite – itself a above the law – to the point that following said processes will only lead them as a lamb to the slaughter, than history has shown us that change will come through the barrel of a gun. Or the modern equivalent of laptops and flashdrives.

amanfromMars • July 28, 2013 11:57 PM

Hi, Bruce,

What are we to imagine BT does with the information which flows through their ISP to customers. Or are we to be led to believe that virtual security bods and real live time boffins batting and battling for British Telecom are not into snooping and analysing flows of information for future business requirements/global opportunities and for possible irregular and unconventional activity which might be harmful and disruptive and destructive, rather than creatively constructive and novel?

Methinks, marking their scorecard and remarking on their performance, they need to do significantly better in the field, for they be leading nothing to anywhere anyone would be wishing to follow, and as be evidenced by all current news channels and media outlets.

Jon • July 29, 2013 6:58 AM

“Snowden fled to China with several computers’ worth of data”

I keep reading this, or variations of this. Exactly how much is a computer’s worth of data? Are there any realistic estimates out there on how much data Snowden might have taken, and how much of it has been leaked?

Why the multiple computers anyway? External hard drives would be easier to carry. Is there a good operational reason for doing so? I’d have thought arriving in China with multiple PCs in a bag would be a great way to ensure the evil maid came to your door first.

BF Skinner • July 30, 2013 7:22 AM

Daniel Ellsberg described his reasoning for disclosing the Pentagon Papers in his memoir Secrets.

He described a classified culture where People on the inside see themselves as better informed than little people. During a war that everyone knew was unwinnable without killing every N.Vietnamese alive.

It was obvious to everyone else. People, without access, people in the streets of the US KNEW that the war was unwinnable bythat point. And on the inside that’s what the MacNamera report said in no uncertain terms.

Everyone, that is, except POTUS and SECDEF. That’s all it took.

After Nixon’s win. Ellsberg tried to get Kissenger interested in the MacNamera report because how different could two presidents be than Johnson and Nixon? Yet Nixon kept the war going for years more.

Nixon, now on the inside, thought his priority was to maintain American prestige.

BF Skinner • July 30, 2013 7:56 AM

@mfeldt
“Do these encryption master keys actually exist?”

I guess it depends.

We know there are for Carbonite. Other companies can be assumed to have them for ease of maitenance and perhaps to comply with litigation and legal demands.

MikeR • August 1, 2013 8:38 AM

To me, the overwhelming “security concern” here is a purely-social one. This thing is, by definition, the ultimate pork-barrel: Trillions (that’s with a “T”) of dollars a year .. Billions of dollars each day .. being dispensed to anyone who can utter the magic words, “nine wun-wun.” All of it in secret. It’s not just “plausible deniability.” The programs officially do not exist.

There’s no concern for what might happen to someone else’s data system, no concern for whether or not people want to be spied-upon, and no concern for whether it is useful or even harmful. It’s a trillion-dollar top-secret paycheck, and that’s where it stops … except for the concern of “how to make it even bigger.”

In the early 20th Century, Maj. Gen. Smedley Butler, USMC, identified this threat with his talk, “War Is A Racket.” Fifty years later, Gen. Dwight D. Eisenhower named “the Military Industrial Complex.” Even then, though, “Ike” spoke confidently of “two fine, well-equipped hospitals,” never imagining that the day would come when the consumption of money for “War, Incorporated” would put in jeopardy an ordinary American citizen’s ability to go into one of them without bankruptcy.

“Vacuuming the Internet” is a multi-Trillion dollar expenditure; a “no fly zone” represents a profit, to someone, of $4 billion dollars a month. There is no PUBLIC discussion of these things, i.e. among people who have no “skin in that game” and who therefore might feel that the money would be better-spent in some other way — the poor, the sick, the hungry, the uneducated, roads, schools, medical care.

It’s secret and it’s bottomless. Thus, a ravenous cancer. That, to me, is BY FAR the greatest threat of all.

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