How Necessary is That NSA Program?

| Mon Jan. 9, 2006 3:52 PM EST

I haven't been following the NSA surveillance story all that closely, so apologies if some of the points made below have been repeated elsewhere over the past month or so (or heavens, if some of the facts are wrong!), but it seems like there are still a few things worth questioning in, for instance, Kevin Drum's argument today:

[T]he NSA program itself is quite likely a reasonable response to 9/11.... Politically, I continue to think Democrats should make it absolutely clear that what they're attacking isn't necessarily the NSA program itself, but the fact that the president unilaterally decided that he could approve the program even though Congress had specifically forbidden it.
Ezra Klein agrees:
The base controversy here, as anyone following it knows, is legal, rather than operational. I'm on the mailing list for quite a few liberal organizations, politicians, pundits, and bloggers, and not a single one has demanded the NSA program's dismantlement.
Well, "politically" this stance probably makes sense, and obviously any potential law-breaking by the Bush administration is an extremely serious matter and the primary issue at hand, but why not attack the "NSA program itself"? Why not call for its "dismantlement"? Is the dimly-understood NSA program in question, whatever it is, actually a reasonable response to 9/11? If the Bush administration felt it couldn't even get it approved by Congress, perhaps not. Does the program do any good? We don't really know, because the details remain classified. Maybe it doesn't.

Of course the Bush administration says that it's super-effective, but is there any actual evidence that whatever this secret NSA program is—"data mining," perhaps, or some ECHELON-like program—has stopped a single terrorist plot, or led to a single terrorist conviction? (A quick Google search doesn't bring anything up; Joe Klein claims there's "evidence"; but what?) And even if so, could these plots have been stopped or disrupted in some other, less secretive or less invasive way? Yes, nearly everyone will agree that the government should try to spy on al-Qaeda, but that still leaves a lot of leeway on how to go about it.

The track record of the NSA has been pretty poor in the past—among other things, all that high-tech gadgetry failed to notice that India and Pakistan were getting read to explode nuclear bombs in 1998—so why should anyone assume that Echelon or other newfangled surveillance programs are magically more competent and useful for stopping terrorism? Intuitively, it has never seemed so hard to elude the NSA if you really wanted to: a good set of substitution codes in your email and telephone calls, along with perhaps RSA encryption, should help careful terrorists stay undetected. Maybe that's not true and these new and secret surveillance techniques really are that effective, but the long history of U.S. intelligence failures doesn't really give one hope.

Meanwhile, so long as the country's in a permanent state of war whose duration is decided by the whims of the president, and so long as terrorism suspects can be held without trial in secret prisons, any sort of classified surveillance program, especially one that potentially sweeps up large numbers of Americans, looks pretty indefensible. Any program is going to make errors and scoop up the wrong people from time to time, and even if the Bush administration was getting warrants for everything, that's still a lot of innocent people who can potentially be stuffed in Guantanamo Bay or extradited abroad for torture and questioning without judicial oversight. Even a "legal" NSA surveillance program becomes problematic when set against a larger background of lawlessness.

Another, side question: Why is it always acceptable to subject foreigners to data-mining and other forms of intrusive warrantless surveillance, without oversight, if it's not acceptable to subject Americans to the same? Obviously that's what the law and Constitution allows, but in certain cases this seems like an arbitrary distinction to make, especially when we know that innocent foreigners very frequently get swept up and detained without trial by the U.S. government. Meanwhile, the European Parliament, among others, has accused the NSA of using secret intercepts abroad to bolster American corporations or conduct industrial espionage, tasks well outside the NSA charter. So there are real concerns with even perfectly legal forms of NSA surveillance abroad, and other abuses aren't hard to imagine.

(Speaking of which, and perhaps this has been brought up elsewhere already: It's long been suggested that the NSA has gotten around USSID 18, preventing warrantless surveillance in the USA, simply by partnering up with British agencies, which have far fewer restrictions than our spies, and having them spy on Americans for us. It's not something that's ever been proven, I think, but it sounds plausible enough. So in practice the foreign-domestic distinction may not be all that rigid anyway.)

A few weeks ago in the New Republic, John Judis revisited the question of whether we should abolish the CIA, something Daniel Patrick Moynihan suggested in 1996 (even better, see Chalmers Johnson, who actually worked for the CIA for awhile). And why not? Apart from overthrowing elected governments, decimating labor movements abroad, and starting crack epidemics in Los Angeles, the agency doesn't appear to be all that crucial. Its most benign and important function, intelligence analysis, has been bested by unclassified and public sources time and time again.

As far as I know, though, no one has laid out as thorough a case for curtailing (or at least declassifying large parts of) the NSA, but the argument would probably run along similar lines. Here you have yet another unaccountable and possibly ineffective agency—when Bob Drogin of the Los Angeles Times heard the "official" NSA self-defense in 2000, here were their list of successes:

NSA successes are real enough. Over the years, NSA operatives have listened to Cuban captains in their ships and Kremlin leaders in their limos. They bugged the Chinese embassy in Australia, tapped Cali drug cartel phone calls in Colombia and identified the Libyan suspects in the bombing of a Pan Am jet. They even bugged arms control and trade talks.

"If you've got the other guy's basic negotiating plan and his three fallback plans on a piece of paper when you're sitting down, you're in pretty good shape," said a former Reagan White House intelligence official. "That's what the NSA gave us. . . . There was a constant stream of incredibly good stuff.""Incredibly good stuff," they say. But really? Intelligence agencies failed to predict the breakup of the Soviet Union and much of Reagan's cabinet repeatedly insisted that Gorbachev wasn't someone who could be negotiated with. Exactly how useful are we talking here? That, plus accusations that the NSA is involved in political and industrial espionage against our ostensible allies, along with its long history of abuses and law-breaking (even when there has been "oversight"), would probably comprise the bulk of the case for the prosecution here. I honestly don't know how strong that is. Note also that, even if this latest NSA spy program, whatever it does, were "legal" and subject to oversight, Congress has always taken a minimalist approach to babysitting intelligence agencies; legality is no guarantee against abuse (although it's certainly better than nothing).

Maybe that just means that better congressional oversight will take care of all these problems, and the problems with the NSA are nothing the rule of law can't clear up, but then again, maybe not. I don't think saying so has to be considered "civil liberties absolutism" so much as skepticism that these specific programs and agencies are all truly and honestly vital to the security of the United States.

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