The NSA and "Intelligence Legalism"

Interesting law journal paper: “Intelligence Legalism and the National Security Agency’s Civil Liberties Gap,” by Margo Schlanger:

Abstract: This paper examines the National Security Agency, its compliance with legal constraints and its respect for civil liberties. But even if perfect compliance could be achieved, it is too paltry a goal. A good oversight system needs its institutions not just to support and enforce compliance but also to design good rules. Yet as will become evident, the offices that make up the NSA’s compliance system are nearly entirely compliance offices, not policy offices; they work to improve compliance with existing rules, but not to consider the pros and cons of more individually-protective rules and try to increase privacy or civil liberties where the cost of doing so is acceptable. The NSA and the administration in which it sits have thought of civil liberties and privacy only in compliance terms. That is, they have asked only “Can we (legally) do X?” and not “Should we do X?” This preference for the can question over the should question is part and parcel, I argue, of a phenomenon I label “intelligence legalism,” whose three crucial and simultaneous features are imposition of substantive rules given the status of law rather than policy; some limited court enforcement of those rules; and empowerment of lawyers. Intelligence legalism has been a useful corrective to the lawlessness that characterized surveillance prior to intelligence reform, in the late 1970s. But I argue that it gives systematically insufficient weight to individual liberty, and that its relentless focus on rights, and compliance, and law has obscured the absence of what should be an additional focus on interests, or balancing, or policy. More is needed; additional attention should be directed both within the NSA and by its overseers to surveillance policy, weighing the security gains from surveillance against the privacy and civil liberties risks and costs. That attention will not be a panacea, but it can play a useful role in filling the civil liberties gap intelligence legalism creates.

This is similar to what I wrote in Data and Goliath:

There are two levels of oversight. The first is strategic: are the rules we’re imposing the correct ones? For example, the NSA can implement its own procedures to ensure that it’s following the rules, but it should not get to decide what rules it should follow….

The other kind of oversight is tactical: are the rules being followed? Mechanisms for this kind of oversight include procedures, audits, approvals, troubleshooting protocols, and so on. The NSA, for example, trains its analysts in the regulations governing their work, audits systems to ensure that those regulations are actually followed, and has instituted reporting and disciplinary procedures for occasions when they’re not.

It’s not enough that the NSA makes sure there is a plausible legal interpretation that authorizes what they do. We need to make sure that their understanding of the law is shared with the outside world, and that what they’re doing is a good idea.

EDITED TO ADD: The paper is from 2014. Also worth reading are these two related essays.

Tags: academic papers, courts, national security policy, NSA

Posted on July 27, 2016 at 6:47 AM • 9 Comments

Comments

Wes Reynolds • July 27, 2016 8:04 AM

Well said, Bruce. This type of check and balance is basic to the rule of law in America.

AlanS • July 27, 2016 8:52 AM

@Bruce

I think you are running a little behind the times. This paper has been around since late October 2014 on SSRN, was previewed in a series of posts by Schlanger on Just Security, and was part of the blog discussion here at the time e.g. here, here and here.

This paper shouldn’t be read without also reading Christopher Sprigman’s The NSA’s Culture of “Legal Compliance” Still Breaks the Law and Jennifer Granick’s critical response to Schlanger’s compliance argument: The Surveillance State’s Legalism Isn’t About Morals, It’s About Manipulating the Rules (cross-posted here).

Either way, if the public laws that Congress passes don’t mean what they say, then compliance is just lipstick on a pig. Chris Sprigman wrote about this here at Just Security, and he sees the culture of lawyering at the NSA, far from assuring the agency’s lawfulness, as actually aiding and abetting the essential lawlessness of the mass surveillance programs. “There is a danger here that the role of the NSA’s lawyers – and this goes for both De and DeLong – creates the appearance but not the reality of lawfulness, and, in the end, does not vindicate the law, but subverts it.” If Chris is right that De and DeLong and the agency’s other lawyers have very little, if any, input into the Administration’s interpretation of the agency’s legal authority (and neither lawyer has claimed to have such input), then NSA lawyers aren’t empowered, they are rubber stamps. De is the agency’s general counsel, responsible to ensure that the agency’s employees operate within the law. Yet he emphasizes repeatedly that he relies on the expansive interpretation of the NSA’s authority that he says has been approved by Congress, and the courts, and the Administration. De hasn’t engaged with the arguments that the agency is overrunning whatever surveillance authority Congress and the courts have actually given it. Margo argues that legalism actually both crowds out the consideration of policy and interests (as opposed to law and rights), and legitimates the surveillance state, making it less susceptible to policy reform. Chris says that De and DeLong’s approach to agency lawyering is actually lawlessness in disguise.

Clive Robinson • July 27, 2016 8:57 AM

@ Bruce,

We need to make sure that their understanding of the law is shared with the outside world, and that what they’re doing is a good idea.

Hmm if that happens certain parts of the IT industry tied up with the I in MIC will be on for very lean times.

At the end of the day Jo Sixpack if asked will say surveillance will/is stopping terrorism and if asked in those terms will say it’s a good idea.

However rephrase it as invading Jo Sixpack’s “own” personal/lifestyle privacy and they will say it’s not a good idea even if they have previously agreed with the “if you are doing nothing wrong then you’ve nothing to hide” idiocy.

Personal “me and mine” questions frequently produce different answers to impersonal “them bad people” qurstions, even though the scope covers both.

Joe Onepack • July 27, 2016 9:31 AM

Pondering whether the NSA compiles with legal constraints and respects civil liberties is like asking whether a pedophile complies with statutory age of consent restraints and respects the rights of vulnerable individuals.

They have never thought “Can we (legally) do X?”. Rather, they simply ask 1. “Can we technically do X?” and 2. “Can we manufacture an ex post facto legal interpretation that will be rubber-stamped?”. The answer to both of these
questions is, of course, yes.

There are no indications that lawlessness ceased in the 70s, unless the author has been asleep for the last three years following the Snowden disclosures. Zero weight is given to individual liberties, else massive data and fusion centers wouldn’t be under construction as we speak, to ‘protect us’ from threats less probable than dying from a bee-sting.

The terrorist bogeyman narrative really is getting a little thin at this stage, and I strongly recommend the propagandist screen-writers re-work their b-grade material.

The only panacea would be the de-funding of the NSA – a proposal only narrowly defeated in the recent past – and a complete re-organization of the intelligence services who have gone rogue. They are completely incompatible with the professed goals of a democratic state.

TimH • July 27, 2016 10:41 AM

No matter what the governing laws state, no matter what compliance and oversight strictures are put in place, it boils down to: nobody in NSA or FBI goes to jail if any laws are broken. In fact, it’s just the whistleblower that is ever prosecuted.

The culture of Congress is, and always has been, that they want the intelligence that is promised (and more recently, not really delivered), but don’t want to be told if the law is skirted.

Similar situation with police corruption and violence. Prosecutor has to show mens rea (cop knew it was wrong at the time of the action) to get a conviction again a LEO. Difficult hurdle. Will Congress fix that legal nicety?

de La Boetie • July 28, 2016 6:01 AM

In my view, some lawyers involved in advising the NSA and the MIC generally should be hauled up in front of the legal bar to explain their actions. It should not be acceptable to take secret legal interpretations to charlatan limits, when there is no realistic prospect of them being challenged in court – after all, that is what makes the law and the rule of law real.

But instead, they get paid huge amounts of money, and zero risk.

As in the case of psychologists involved in torture, the governing body (APA in that case) has been asleep on the job, and should be far more proactive in providing ethic guidance to their members, and enforcing standards of decency and yes – rule of law. Even – gasp – upholding the constitution as so glibly promised by the politicians. It usually comes out eventually. And disbarring those who provide this bent advice to the MIC – it brings them into disrepute. When the public clearly see different rules for the powerful (particularly those done in secret with no realistic prospect for redress – e.g. the lack-of-standing disgraces that have littered this area) – then we have a huge problem.

@TimH makes an essential point about the lack of anyone breaching the regulations actually going to jail – after all, the “loveint” criminals would just be told off. There has been a similar discussion about the Investigatory Powers Bill, where the original version at least did not make it a criminal offence to breach, what is by any standards an extremely serious crime.

In the UK, a recent Investigatory Powers Tribunal has found (in relation to an Amnesty complaint), that there have indeed been multiple breaches of mass surveillance (freelance snooping on celebs for instance), yet the people handling those checks are directly in the line management, there is no independence, and psychologically, it’s well know that you look after your “own” and buddies – the organisation and wider can get knotted.

More widely, I fail to understand, other than for reasons of empire building by senior managers, why the NSA has been so disastrous at keeping the support of the public. The lack of contrition since Snowden has been deafening – even if their operations had been completely lawful, they should not and must not keep the policies secret. Yet their actions have been the opposite of restoring trust.

There has been a similar issue in the case of legal advice for the Iraq war, made by the Attorney General to the UK PM and cabinet – he clearly changed his tune under political pressure. Only partly exposed by the Chilcot report.

Berkman Center for Truth, Justice and The American Way • July 28, 2016 3:04 PM

Under EO 12333 Sec. 1.6(b), all heads of IC elements must report possible criminal law violations to the Attorney General. Raise your hand if you think that Brennan reported this mass murder:

https://www.academia.edu/8776021/The_Snipers_Massacre_on_the_Maidan_in_Ukraine

https://eadaily.com/en/news/2015/04/20/presidential-candidate-in-poland-says-poland-and-cia-were-behind-maidan-and-maidan-snipers

Raise your hand if you think Brennan reported these breaches of the FCPA and the War Crimes Act:

http://www.lrb.co.uk/v36/n08/seymour-m-hersh/the-red-line-and-the-rat-line

Of course he did. And DoJ prepared legal pretexts for his manifestly illegal acts. And if it’s something really bad like 9/11 Gladio he just hides it with eyes-only foreign liaisons under P.L. 104-132.

The intelligence community is a criminal enterprise and its impunity is a US vital interest. The president is a subordinate spokesmodel for it. Until you can blurt out this exhaustively-documented international consensus, these thinkpieces will have all the impact of a Boy’s State prize essay.

tyr • July 28, 2016 11:36 PM

Here’s another peach about the way governments
define legality.

Apparently they didn’t learn anything from the
Nuremberg trials.

https://www.jacobinmag.com/2016/07/cia-torture-bush-cheney-waterboarding-interrogation/

Frederick the Great banned judicial torture
and he was positively incensed by a court
decision that deprived a citizen of his
livelihood, because the court had done this
in his name. Citizens of USA should share his
outrage because these things are being done in
our name. It takes a special kind of mealy-
mouthed hypocrite to debate turning an innocent
loose after a bureaucratic mistake, which has
been done far too often in these cases.

de La Boetie • July 29, 2016 9:06 AM

Another factor in the way the legal system is bent by the NSA and government is the disgraceful exploitation of public funds to defend and delay cases which a rational person would not, and often in cases where the public interest is obvious.

Clearly, the law serves the rich, and who richer than the state.

This is also reflected, I think, in the salami-slicing way they keep on coming back with discredited and repeat legislative proposals, which have to be fought, every time, by privately funded, and often pro-bono lawyers and organisations, which saps their resources.

Meanwhile, everything the state does is funded to the hilt, and the misuse of public money is simply not punished, there’s no accountability.

Schneier on Security

The NSA and "Intelligence Legalism"

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