Recriminations, Pendulum Swings, and What is Probably Happening at NSA

By Benjamin Wittes
Friday, September 13, 2013, 9:03 AM

This is speculation. I have no hard facts or evidence to support it. But I am convinced to a moral certainty that NSA is scaling back certain collection.

That is not something I say with pleasure or triumph but, rather, with frustration, sadness, and worry.

Imagine you were a high-level decision-maker in a clandestine intelligence agency. Imagine that you had played by the rules Congress had laid out for you, worked with oversight mechanisms to fix errors when they happened, and erected strict compliance regimes to minimize mistakes in a mind-bogglingly complex system of signals intelligence collection. Imagine further that when the programs became public, there was a firestorm anyway. Imagine that nearly half of the House of Representatives, pretending it had no idea what you had been doing, voted to end key collection activity. Imagine that in response to the firestorm, the President of the United States---after initially defending the intelligence community---said that what was really needed was more transparency and described the debate as healthy. Imagine that journalists construed every fact they learned in light of the need to keep feeding at the trough of a source who had stolen a huge volume of highly classified materials and taken it to China and Russia.

What would you do? Here's what: You'd take a hard look at your most forward-leaning programs---and you'd turn them off. You would do this using words like "prudential" and "current environment"---of course standing by the programs' legality in some formal sense, just as the president has stood by you in some formal sense. But just as the president has let the intelligence community swing in the wind, limiting his own exposure by making the problem all your own, you would cut your losses. You wouldn't even be wrong to do so.

And you would do it knowing somewhere in your heart that some day, the pendulum would swing the other way and there would be recriminations for turning those programs off, just as there are now recriminations for having such programs online. You would even know that many of the same people would be responsible for the mutually contradictory recriminations. You would know that after some big attack or intelligence failure, the scoop that you turned off collection tailored to the sort of information you needed to stop that event would be just as irresistible to the Washington Post and the Guardian as was the story that you ran riot over Americans' civil liberties. You would know that the papers would be just as careless with the facts. You would know that the same members of Congress who are today outraged at what your agency is doing would wax outraged then at what it isn't doing. And you would know that almost nobody will bother to know what they are talking about before having very strong opinions about how you fell down on the job and thus bear responsibility for both the smoldering ruins of some federal building somewhere and for destroying American values.

As I say, I have no evidence that this scaling back is taking place, and I don't know what the programs or activities on the blade end of the prudential meat axe look like---so until you look out over those smoldering ruins, feel free to disregard this post and regard it as the alarmist fear-mongering of an apologist for the national security state. But for the record, I dissent from the retrenchment I believe is going on. And here's the standard I would propose for the reevaluation of collection programs and activities that might seem too edgy today given the circumstances: If they were lawful and defensible and necessary pre-Snowden, they are lawful and defensible and necessary today.