Cybersecurity

Shane Harris on General Alexander

By Jack Goldsmith
Friday, September 13, 2013, 9:04 AM

Shane Harris has a long piece in FP about NSA Director Keith Alexander entitled The Cowboy of the NSA.  Harris shows, with nice detail and color, how Alexander has engaged for years in an all-out drive to collect more and more data.  But as the title suggests, the thrust of the story is that General Alexander has been insensitive to legal constraints in his quest for more data.  At the beginning of the story, Harris ominously says that General Alexander’s predecessor, General Michael Hayden – who famously (and often) said his job as NSA Director was to have his cleats on the chalk-line of legality – worried about General Alexander’s compliance with the law.  Harris quotes an unnamed “former intelligence official who has worked with both men,” who says: “Alexander tended to be a bit of a cowboy: 'Let's not worry about the law.  Let's just figure out how to get the job done.  That caused General Hayden some heartburn.”

I have no particular brief for Alexander, but the problem with Harris’s heavily-anonymously-sourced story is that nothing in it supports the (anonymous) claim that Alexander was a “cowboy” who did not “worry about the law.”  The closest Harris comes to support is an episode before Alexander became DRNSA, in late 2001, when he was in charge of the Army's Intelligence and Security Command.  Harris says that Alexander asked NSA for raw, unanalyzed meta-data, and “bridled” when NSA refused on legal grounds.  According to an anonymous source (who could be the same anonymous source), Alexander “said at one point that a lot of things aren't clearly legal, but that doesn't make them illegal.”  Harris does not say whether Alexander said this in connection with the meta-data episode.  But even if he did, this sounds a lot like General Hayden’s famous chalk line metaphor.  It also sounds like Alexander, in the months after 9/11 was looking for novel ways to find the enemy, and was exploring the limits of every legal constraint to do so.  Again, that does not distinguish him from General Hayden, or from anyone else in the executive branch at the time.

Nothing in Harris’s story beyond this episode supports the claim that Alexander was indifferent to legal constraints.  To the contrary, Harris’s story suggests that everything Alexander actually did in seeking to collect more data was supported by law.  (For example, Harris says: “The PRISM program operates under a legal regime, put in place a few years after Alexander arrived at the NSA, that allows the agency to demand broad categories of information from technology companies.”)  Moreover, Harris says that Alexander's desire to expand the Defense Industrial Base (DIB) information sharing arrangements from defense contractors to Wall Street firms “has never been fully implemented, largely due to legal concerns.”  (My emphasis.)  Harris then quotes the same anonymous official saying that “Alexander has ignored that Fourth Amendment concern” inherent in expanding the DIB to Wall Street.  But of course Alexander didn’t ignore the Fourth Amendment concern.  When the lawyers, probably from DOJ, told him he couldn’t do it, he didn’t do it.  That dynamic – an intelligence official proposes a novel and aggressive counterterrorism method, lawyers shoot it down – happens every day, and is the way the world is supposed to work.  Without something more, it does not show that Alexander was not worried about the law.

Nothing else in the story supports the charge either.  Of course, the NSA has violated its authorities – violations that, as the documents this week and in past weeks show, NSA self-discovered and reported.  Perhaps Alexander’s push for more data, and his desire to have his cleats on the chalk line of legality, are related to these compliance problems.  But Harris does not draw that connection.  Finally, one might question whether the NSA’s activities pursuant to FISA orders are in fact lawful in ways that will ultimately be supported by the Supreme Court.  But again, nothing in Harris’s story ties that issue to General Alexander.