Schneier on Security

Skeptical • December 16, 2013 10:28 AM

Lawfare post cited in the first comment is a useful corrective to some inaccuracies in the New Yorker article. Both are worth reading.

As to some of the comments here re: President being blackmailed…

Two Presidents, from both parties, majorities of Senators and Representatives, from both parties, and multiple independent federal judges, have all endorsed either the practical need for the program, or the legality of the program, or both.

Isn’t it possible, just possible, that becoming familiar with the institutional safeguards in place against abuse, and that becoming familiar with the use for this type of program, might lead one to conclude as the President clearly has?

The alternative explanations are all variations on “government is evil” (agencies are blackmailing politicians, etc.) or “government is incompetent” (the intelligence agencies and law enforcement agencies are idiots when it comes to anti/counter terrorism).

Neither is terribly satisfying as an explanation.

But once you admit that there is room for reasonable disagreement on this issue, you’ve made the activity of leaking highly classified documents on this issue much less defensible, while also removing the right to be indignantly outraged by the program (if the program is a reasonable choice, it would be odd to be “outraged” at those who chose it, even if one’s own choice would have been different).

As much as I enjoyed Lizza’s article, one of its real deficiencies (the Lawfare post identified others) is its nearly complete omission of procedural safeguards as part of the story. Lizza covers the court-ordered and court-monitored safeguards on the telephone metadata by writing that the “court required some new oversight by the Justice Department and new rules for accessing the database, but it was a nearly complete victory for the agency.” Unfortunately it is impossible to assess these programs, and particularly the telephone metadata program, without understanding the safeguards in place. Those safeguards are an enormous part of why, and how, the FISC approved the metadata program as legal. Glossing over them with the barest of vague references isn’t enough to inform the reader of an essential part of the story.

Skeptical • December 17, 2013 1:28 PM

Anon, What safeguards? As the FISA documents show the NSA was willingly violating the orders it was given.

Violations that NSA themselves disclosed to the court. Violations which the court was extremely unhappy about, which required a thorough investigation, which required remedies which the court approved.

The safeguards in place require that certain standards of suspicion be met before the database can be accessed. To ensure that those standards are being observed, there is monitoring by the Department of Justice, the NSA’s Inspector General, continued reporting to the FISC, and continued reporting to Congress.

Look, no one at NSA wants to be the subject of a federal prosecution or congressional hearing. They actually do want to play inside the confines of the law. And everyone in the IC is all too aware of how quickly conduct winked at by one administration can turn into scandal under another administration. The only real shield they have against politics is the law.

Dirk, But the only way we are ever going to get conclusive answers is by having a full public debate and instating a new Church Committee with full investigatory powers.

We’re going to dump tons of classified information into the public domain in order to discuss whether it was legitimately classified? Come on. We agree that a lot of signals intelligence work is legitimately classified, right?

As to the Church Committee… the Church Committee was created during a time when there was very little – none, really – congressional oversight of the intelligence agencies. And intelligence work in those days was bound by little more than the Keith decision. Today though, partly as a result of those days, there’s a robust mechanism of congressional oversight (they were aware of the metadata program), and signals intelligence within the United States and in connection with US persons is subject to judicial approval and oversight, all within a framework of law.

I don’t think this is true in your case, but some people I suspect carry in their heads a picture of intelligence agencies from the 50s and 60s, when the institutional reality today is dramatically different. And I suspect that is why the myriad institutional safeguards put in place after the Church hearings are discounted for those people.

It also raises serious questions about whether the US still is a functioning democracy or has become a capitalist plutocracy where those in power can govern at will through secret interpretations of the law by secret courts issuing secret orders to secret agencies executing secret programs.

Well let’s see. The agencies aren’t secret, of course. “No Such Agency” hasn’t existed as such for decades. The courts aren’t secret either. You can see who sits on them, when they were appointed, when their term expires. Now, some of the court decisions and of course the programs on which the court is deciding are kept classified. But that’s no different than any other federal court. Nor is anything “at will.” The courts are independent; the judges are independent; Congress is independent. If you want to implement a program, there are a variety of legal and political loops to jump through first. The government IS very powerful, but it’s a power constrained by and divided by (deliberately so) multiple institutions, rules, and interests.

The idea that the US is not a representative democracy is absurd. That some legal opinions are classified (as they are everywhere) has no bearing on that question.

Blagotag, “Clearly?” You’re “clearly” wrong. See how I just made the exact same argument you did? Just baldly asserting the thesis without actually citing any evidence? You don’t have access to the president’s mind. You “clearly” just made this up.

Except you missed everything before “clearly”. You missed the fact that so many other persons, from both parties, have in fact decided that these programs are legal, or prudent, or both. If you want to believe that someone is blackmailing the President, or that he has some nefarious reason for holding on to these programs, go right ahead.

In a democracy, we have a responsibility to make informed decisions.

Which includes decisions as to how to empower governments to keep certain matters confidential from the public. Which we’ve done through law. And by the same means, we’ve put in place a system of checks and balances, and oversight, to ensure that the necessity of confidentiality for some matters does not become a cloak of criminality. Your level of comfort or discomfort with the secrecy we’ve empowered certain parts of the government to have should depend on your level of knowledge about those checks, balances, and oversight mechanisms.

If this program was what the American people wanted, they wouldn’t be hiding it.

That’s an astonishing assertion. Do you really believe that? No program kept classified is wanted by the American people – for if it were wanted, then it would be revealed?