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Five In-Your-Face Thoughts in Defense of the NSA

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Monday, September 9, 2013 at 2:32 PM

The NSA has been somewhat less in the news the past few weeks, thanks largely to Syria. That’s going to change in the coming days, when the latest tranche of declassified materials becomes public. The Justice Department conceded last week in a court filing in a FOIA case, the Electronic Frontier Foundation reports, that it will release: “[O]rders and opinions of the FISC issued from January 1, 2004, to June 6, 2011, that contain a significant legal interpretation of the government’s authority or use of its authority under Section 215; and responsive ‘significant documents, procedures, or legal analyses incorporated into FISC opinions or orders and treated as binding by the Department of Justice or the National Security Agency.’”

It may be that the government’s prior release of its white paper on Section 215—combined with a certain NSA fatigue—will inoculate it to some degree against the torrent this release would otherwise unleash, making the details of the program and its legal justification seem a bit like old hat. But I suspect not—that we are, instead, on the brink of a new onslaught. So I thought this would be a good time to make some broad high-altitude points in the defense of the NSA.

These points are, I want to stress, pretty obvious—so obvious that I find it a little odd to be making them. But the truth is that they often get overlooked. So in the current environment, they bear emphasis and reemphasis.

First, the NSA is an intelligence agency, and intelligence agencies collect intelligence. The NSA collects a huge amount of data. It spies on other countries and their leaders. It tries to make sense of the material it collects using data-analytic techniques. It breaks encryption systems that its potential targets use to protect their communications. It develops relationships with private companies that can provide it data. And it engages in activity that is illegal in the countries against which it operates.

As we used to say in grade school, “Duh!” That’s why we have a signals intelligence agency.

Critics of the agency, at home and abroad, trot out many of these facts as damning indictments. Brazil and Mexico and our European allies are outraged—or pretend to be—that we spy on them. Our domestic conversation is laced with fear of the sheer size of NSA collection, as though data volume is what makes Big Brother big. But the criticism is silly. Of course, the agency collects a large volume of material. An intelligence agency is not a think tank or a university. It doesn’t just read newspapers, collect what’s public and analyze what such data say. “We steal secrets,” former NSA and CIA director Michael Hayden put it in the excellent movie about Wikileaks that used this arresting phrase as its title. This is what spy agencies do. The NSA is good at it—very good at it.

I, for one, think that’s a great thing.

Second, what the agency is actually doing is far less threatening than what people think it is doing. The tone of the conversation about NSA activity is so over-the-top that the agency’s actual activity gets lost in the story. The intelligence community’s own efforts to explain itself have been less than brilliant, but the truth is that the NSA has implemented its set of broad authorities in a tightly-controlled fashion. One can argue that the authorities in question are too broad, or one can argue that the controls should be tighter still. But it’s hard to look at the details of the actual programmatic activity of the NSA and emerge as alarmed as one would reasonably be on reading the screaming headlines.

The disparity, and it is a vast one, between the story in those headlines and the story in the details is partly the product of a lot of shoddy journalism. But it’s partly also a product of the technical and legal density of the subject matter. The costs of entry to the conversation about how the NSA is spying on millions of Americans is low. The cost of entry to a serious conversation about what the agency is doing, how it is doing it, and how both interact with relevant statutory and constitutional law is not low. It’s very high. And a great many more people—journalists, members of Congress, and members of the public—thus feel pulled to the story about an out-of-control spy agency. It’s so much easier, and it maps so neatly onto all of the post-Watergate prejudices of our political culture.

Third, while a lot of people aren’t interested in the details, those details really matter. At the time of the last document release, Lawfare published a series of detailed posts describing what the released documents actually said (we will do the same with this week’s disclosures). Very few people read them. Taken together, they attracted a few thousand readers, according to Google Analytics. By contrast, nearly 30,000 people read one day’s worth of our coverage of a possible Syria AUMF. The contrast gives you some idea of just how few people really want to understand what did and didn’t happen when the FISA Court declared part of the 702 collection process deficient on statutory and constitutional grounds. Yet the number of people who feel entitled to express an opinion—often a very strong opinion—on the same subject is much larger.

The result, for the agency, is a debate that is remarkably resistant to disclosures of information unless they come from Edward Snowden and remarkably resistant to the sort of fine-grained details on which the actual difference between legality and lawlessness necessarily depends.

This brings me to my fourth point: the NSA’s activities are legal. We are not living in the age of COINTELPRO or the Watergate-era intelligence scandals. We are living in an age in which the intelligence activities about which we harbor anxieties take place pursuant to statute and subject to judicial review. People may object to the government’s interpretation of Section 215, about which I have my own doubts, but nobody can argue that it is a lawless or crazy interpretation of the statute; in fact, it’s on its face quite plausible. And it’s one that the courts have approved, and to which Congress has assented. Similarly, nobody can deny that Section 702 grants sweeping collection powers with regard to communications by persons reasonably believed to be overseas; that’s the point of the law, and it’s the reason the FISA Amendments Act was controversial as a legislative matter. Yes, there have been errors and compliance issues, as there are with any government (or private sector) program. And yes, there was a substantial dialog with the FISA Court over one component of Section 702, in which the court held that component unconstitutional, forced changes to it, and referred to two other incidents in which the government had misrepresented aspects of 702 collection to the judges. But this sort of back-and-forth is little different from the iterative discussion that takes place between, say, the courts and a big city police department over the conduct of searches or, for that matter, the discussion between any agency and the courts that review its activities. They are examples of the mechanisms Congress set up to keep the NSA within the law doing just that.

Many critics of the NSA elide this point by insisting that the Constitution—specifically, the Fourth Amendment—forbids such activity, even if the statute purports to permit it. But the constitutional law here actually doesn’t get them very far. The doctrine is quite permissive with respect to data held in the hands of third parties, and it’s almost-infinitely permissive with respect to collection against non-U.S. persons overseas. The result is that rote invocations of the Constitution as some kind of trump card against the big bad intelligence agency that wants to collect data generally falls flat, no matter how emotionally satisfying it may be to people who choose not to understand the law.

Let me put this point as simply as I can: The NSA can collect a gargantuan quantity of telephone and internet data without violating any statutory or constitutional law. And nearly all of the current debate involves activity that either clearly or arguably falls on the legal side of the line. To the extent that people argue against the legality of what the NSA is doing, they are generally arguing that the courts should have ruled other than the way they did. But in our society, what defines an agency’s legal authority is what the courts actually ruled, not what later critics think they should have ruled.

In other words, fifth, this is not a scandal but a policy debate. It’s not, no matter how the press or advocacy groups may present it, a matter of an intelligence agency run amok. It’s largely a question, rather, of whether we are or are not comfortable with where we have set the parameters of lawful collection—both in statutory and in constitutional law. This is an entirely legitimate discussion, but the language of scandal is actually obscuring it. Instead of waxing indignant that the NSA is collecting domestic telephony metadata in bulk under both judicial and congressional supervision,we should be asking whether and under what circumstances–and under what statute–we want the intelligence community to have access to such material, and whether we are willing to live with the heightened risk restricting access may entail. Instead of the endless bleating—much of it factually fanciful or based on constitutional theories that simply ignore Supreme Court precedents—about a rights-defying intelligence agency that’s systematically monitoring our internet communications, we should be discussing what rules we wish to govern collection of overseas telephone and internet traffic by non-U.S. persons, what protections we wish to see built in, and what relationship we wish the agency to have with the service providers who manage the bit streams.

These are not easy questions, and there’s more than one possible answer to them. But it’s hard to believe we will optimize the policy goods at stake in these discussions if we continue to pretend the task at hand is to rein in J. Edgar Hoover.