Stating the Obvious About Surveillance

In a recent interview, Director of National Intelligence James Clapper made the following – and painfully obvious – statements about the betrayals and disclosures of National Security Agency leaker Edward Snowden:

I probably shouldn’t say this, but I will. Had we been transparent about this from the outset right after 9/11 — which is the genesis of the 215 program — and said both to the American people and to their elected representatives, we need to cover this gap, we need to make sure this never happens to us again, so here is what we are going to set up, here is how it’s going to work, and why we have to do it, and here are the safeguards. … We wouldn’t have had the problem we had.

And, that:

I don’t think it would be of any greater concern to most Americans than fingerprints. Well, people kind of accept that because they know about it. But had we been transparent about it and say here’s one more thing we have to do as citizens for the common good, just like we have to go to airports two hours early and take our shoes off, all the other things we do for the common good, this is one more thing.

To be fair, the Obama administration has never maintained that Clapper was the smartest guy they have – and, to be totally diplomatic here, he also served in the Bush Administration as the intelligence undersecretary at the Defense Department, and with a similar reputation.

However, let’s think a minute about what he said, and take it – a step at a time – from the most clear-cut and obvious situations to the more controversial ones. I recall going through a similar exercise with a new attorney general when I was deputy counsel for intelligence policy at the Justice Department and later for more than a few senators when I was bi-partisan general counsel for the U.S. Senate Select Committee on Intelligence. On a more mundane level, I even did it for my mom, and she got it right away.

Here is the thought progression needed to fully understand why we do what we do – or even more specifically, why NSA does what it does:

First: Assume that we know, from very reliable human sources, that “Mr. X” is putting money together and sending it on to terrorist organizations to use in financing terror operations worldwide. If X were in the United States, we could get a criminal wiretap on him or a Foreign Intelligence Surveillance Act wiretap, because X’s behavior easily satisfies the thresholds for both. If X was not a so-called “U.S. Person” and lived overseas, for example, he would be a typical target for a FISA wiretap.

Second: As we run the wiretap on X, we are constrained by a set of what are called “minimization” rules, which require us to “flush” the material that isn’t relevant to our investigation, such as when X orders a pizza or talks to his daughter. But we won’t know which communications are in that category until someone listens to them and makes a minimization decision – usually a line or case supervisor. Sometimes this process is intense, as the wiretap may only be authorized for a limited period and won’t be renewed unless it produces something useful. However, as a fail safe, we have learned to keep a log of all numbers called into or out of X’s tapped line so we could retrieve them if they turned out to be productive in the context of the entire investigation of X or X’s terrorist organization. For example, the pizza order could turn out to be code for a specific recipient of X’s money. Again, these would be kept in a log that would have a limited lifetime and an even more limited access of people.

Third: Nothing so far would – or should – surprise or be of concern to any responsible critic from a privacy standpoint. (Some of the most vocal privacy critics believe that the FISA is unconstitutional, but they rarely say so because it’s a view which is not shared by even a respected minority of legal scholars.) Nevertheless, there are some aspects of even the most routine FISA surveillances that sometimes create unusual policy or legal issues. Some examples: X discusses the killing of his daughter with his wife because the daughter has “dishonored” the family by her relationship with her boyfriend. This actually happened, and the U.S. Attorney General had no problem making the information available to local law enforcement for state prosecution of X and his wife for the murder of their daughter. Next example: X either calls or gets a call from a congressman; there are long-standing protocols for this situation as well.

Clapper opined that had we just been transparent about the so-called “Section 215” program, Snowden wouldn’t have been able to get the media leverage he had with his disclosures of information about the program. Well, yes, that’s probably true. This is because the Section 215 program comes of no real surprise to those who have thought responsibly about protecting ourselves from terrorist attack.

The 215 program is simple: We keep a record of all inbound and outbound calls, texts and emails that come to or from our target – Mr. X – who is in the business of financing worldwide terrorism. We need a way to identify who and where these communications are coming from, and a way to rule them out – or in – as appropriate targets for separate FISA surveillance. And, as has been reported, by far most were ruled out, for one reason or another.

In fact, if you put together the combined probabilities of the number of communications to the targeted person – Mr. X – and the number of those communications with a connection or relevancy to terrorism, and then compare that small number to the totals of everyone else’s communications to everyone else, the privacy implications are, as judges say, “de minimis”, i.e., so small as to be insignificant from a legal or constitutional perspective.

So, if that’s what Clapper meant, then he is finally right. However, it should not have taken Snowden’s treachery for him to explain it in an understandable and persuasive manner.

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