Playing to the Edge: American Intelligence in the Age of Terror (47 page)

It was also made more difficult by the president’s 2008 campaign, which sought to put distance between himself and the Bush administration. There is no doubt he intended to be judgmental in his first inaugural when he said, “As for our common defense, we reject as false the choice between our safety and our ideals.”

Compare that with his June 2013 explanation of NSA activities: “But I think it’s important for everybody to understand . . . that there are some trade-offs involved. . . . You can’t have a hundred percent security and then have hundred percent privacy and zero inconvenience. You know, we’re going to have to make some choices as a society.”

The president seemed to be splitting the difference again, as he did with the release of the DOJ memos on CIA back in 2009 (chapter 20). But he was in a tough spot. Both his foreign and domestic agendas were
in tatters as the failure of his intelligence agencies to keep their secrets roiled constituencies here and overseas. The usually phlegmatic president reportedly showed visible anger in small group settings.

And the Snowden revelations kept on coming, often timed for maximum embarrassment and crafted for maximum impact. The
Los Angeles Times
,
USA Today,
and the
Washington
Post
all piled on a September Glenn Greenwald–Laura Poitras screecher in the London
Guardian
: “NSA Shares Intelligence Including Americans’ Data with Israel,” the clear implication being that NSA was casually handing off US person information to a dicey ally.

Those kinds of articles seemed to regularly catch the administration flat-footed as responses were forced to go through a cumbersome interagency vetting that often produced a response that was tepid, stripped down, late, or nonexistent. In fact, in this particular case, for someone with
any
knowledge of how signals intelligence works, there was an obvious alternative story line, but one not even suggested in the coverage.

I claim no operational knowledge of this alleged activity, but in my experience—when working with an ally and forwarding SIGINT “take” to them—a memorandum of understanding is usually drawn up so that US privacy is protected even in the unlikely event that US person data is incidentally swept up. The MOU is actually a plus for US privacy. But
that
interpretation never quite made it to the public story.

Another page-one headline in an August 2013 edition of the
Washington Post
blared, “NSA Broke Privacy Rules Thousands of Times per Year, Audit Finds.” I parsed the data for that one in a short piece for
USA Today
, pointing out that

all the incidents were inadvertent; no one claimed that any rules were intentionally violated. All of the incidents were discovered, reported and corrected by NSA itself.

Fully two-thirds of the incidents were composed of “roamers”—legitimately targeted foreigners who were temporarily in the United States (and thus temporarily protected by the Fourth Amendment).

I explained a “roamer” in more detail. Picture a legitimate foreign intelligence target who, unbeknownst to NSA, enters the United States. Now the target makes a cell phone call from the States, not collected in the air here, but made in such a way that it is routed back to its home network (for billing purposes) before heading to its intended recipient. It looks every inch like a foreign call and is collected as such, until it becomes apparent, because of the content of a particular call or certain aspects of the intercept itself, that the call originated in the United States. At that point collection is stopped and the inadvertent collection (the “privacy violation”) reported—even though the caller remains a legitimate target and NSA will be all over him again once he leaves the United States.

I added that other “violations” included database queries, searches of data already collected. The document the
Post
relied on revealed that in one three-month period,
there were 115 incidents of queries being incorrectly entered, mistakes like mistyping or using too-broad search criteria. That’s 115 out of 61 million inquiries.

I didn’t put it into the op-ed, but I did have an alternative headline for the
Post
piece: “NSA Damn Near Perfect.”

The backstory on my
USA Today
op-ed was instructive. The
Post
broke its story on Thursday.
USA Today
wanted to run competing point-counterpoint editorials the following Monday. It invited NSA to write the contrary view, an opportunity that the agency embraced. By late Saturday night, though, I had heard that NSA was despairing of getting interagency (read White House) clearance for its response. Shortly afterward,
USA Today
turned to me.

I wrote the piece on Sunday morning and had it cleared for classification that afternoon. That NSA was prevented from doing the same is beyond explanation, and the fact that someone—ten years out from NSA—could muster a coherent argument suggests that this wasn’t akin to splitting the atom.

The administration really didn’t want to take this on, and the president pointedly did
not
make a morale visit to Fort Meade as George Bush did six weeks after the exposure of Stellarwind.

But the administration’s reticence did not save it from criticism at home or abroad. Foreign leaders were weighing in as much as the president’s domestic political opponents, since Snowden and his journalistic accomplices hadn’t confined their broadsides to questions of US privacy. They alleged US penetration of Chinese computers and US coverage of Russian president Dmitry Medvedev’s satellite phone, and they did that early while Snowden was on the run in Hong Kong en route to Sheremetyevo Airport, outside Moscow. They later added charges of spying on foreign leaders in Germany, Brazil, Mexico, and elsewhere.

Europe seemed especially outraged, echoing the turn-of-the-century kerfuffle over the alleged Echelon program (chapter 2). The president must have been personally stung when a writer in
Der Spiegel
effectively announced the end of Europe’s love affair with him: “Before, we could at least think, it’s just Bush. There is a better America. But now we know; there is only one America.” Quite a change in European sentiment, since the president was awarded the Nobel Peace Prize after only a few weeks in office largely for not being George Bush.

The president likely took no comfort when Stewart Baker, former NSA general counsel, summed up a lot of American intelligence community views when he observed that the only surprising aspect of the European response was their ability to recycle their outrage without any obvious sense of embarrassment. In their private moments, most IC veterans were irritated that neither their own nor European political leaders would publicly admit the obvious: that espionage was an accepted international practice and the US Constitution’s Fourth Amendment protection against unreasonable search was
not
an international treaty.

At one point there were so many foreign leaders—or intelligence heads on behalf of their leaders—coming to Washington for “explanations” that there were actually scheduling challenges for the IC leadership.

Actually, President Obama had nailed it when he once complained to a foreign audience that “some of the folks who have been most greatly offended publicly, we know privately engage in the same activities directed at us.” And he got to the heart of the matter when he pointed out, “So
even though we may have the same goals, our means are significantly greater.”

But it also became clear that the administration was rethinking how NSA targeted global communications. In addition to the “just because we can doesn’t mean we should” concession, the president admitted that there were “questions in terms of whether we’re tipping over into being too intrusive with respect to the—you know, the interactions of other governments.”

The president went on to add, “We are consulting with other countries in this process and finding out from them what are their areas of specific concern.”

Let me attempt to restate that. We were asking other countries what of our possible espionage against them made them most uncomfortable?!

Clearly policy and politics demanded that the president take a conciliatory tone. There is necessarily at least a little bit of theater involved here.
Public
allegations of specific espionage require “victims” to be outraged. They also require “perpetrators” to look into the matter.

Fine. But overachieving here would be dangerous. Director of National Intelligence Clapper bared a bit of his soul when he said he was facing a demand for exquisite intelligence that he had to collect without risk, without embarrassment, and without threat to anyone’s privacy or commercial bottom line. He labeled it “immaculate collection.”

And 2014 was indeed the year of rolling back.

Following Snowden’s allegations that the United States was listening to German chancellor Angela Merkel’s cell phone, a senior US official told reporters that the United States had “made a decision not to pursue surveillance on dozens of heads of government.” Dozens. That’s at least twenty-four and probably more.

The president announced, “If I want to know what [foreign leaders] think about an issue, I’ll pick up the phone and call them.” Okay, but that sounds naive or disingenuous, since what foreign leaders tell the president may not be exactly what they tell their foreign minister or defense minister or intelligence chief after they hang up.

Even before that announcement, Reuters was reporting that the
president had ordered an end to electronic surveillance of international organizations like the United Nations, the World Bank, and the International Monetary Fund. Many understandably applauded those reports. After all, they reasoned, these institutions were not adversaries.

Whatever the truth of the reports, though, we should be careful with that argument. It smacks of the Greenwald-Poitras-Snowden theme condemning alleged suspicionless surveillance. That attitude conflates law enforcement and intelligence. Intelligence collection is not confined to the communications of adversaries or of the guilty. Rather, it’s about gaining information otherwise unavailable that would help keep Americans safe and free. There’s a difference.

American intelligence suffered mightily in the 1990s when human intelligence collectors were told to stand down and not talk to “bad” people. We would create the same effect again if we tell signals intelligence collectors they cannot listen to “good” people.

Then there was a flood of stories that CIA had “curbed spying against friendly governments in Western Europe.” That was in response to charges that CIA had suborned an officer in Germany’s intelligence service. I have no special knowledge about the truth of that allegation or the supposed American response, but the currency of the story was proof enough that there was a high level of skittishness in American espionage.

The intelligence community was also working hard on the president’s commitment to extend to foreigners overseas US person–like privacy protections on holding and using data collected on them. From all accounts it was slow going. One observer only half-jokingly commented to me, “We don’t even know what that means.” Little surprise there. The American intelligence community and American law had never before extended the concept of the Fourth Amendment to foreigners abroad.

Traditionally, American SIGINT has been limited by the demands of the Fourth Amendment and defined by the demands of American security. Absent political guidance to the contrary, if you were not protected by the US Constitution and your communications contained information that would help keep America free and safe, information that would not
otherwise be available to the US government, it was game on. In those circumstances, the privacy of foreigners overseas was not in the job description of the director of NSA.

When I was at NSA I received my fair share of political guidance to stand down on particular targets. There are indeed factors other than optimal intelligence collection that should influence our actions. But those were retail exceptions. This looked wholesale.

So, before we lock ourselves in, it might be wise to think through the long-term implications. President Obama reflected current and historic reality when he said that “the United States only uses signals intelligence for legitimate national security purposes and not for the purpose of indiscriminately reviewing the e-mails or phone calls of ordinary folks.”

Why shouldn’t that operational reality be standard enough? What additional administrative burdens can we afford to place on a system that is already stressed keeping up with the demands of a very turbulent world? And what unneeded caution would such a legal and policy regime impose on a bureaucracy that we cannot afford to be risk averse?

We’ve actually seen a version of this movie before, pre-9/11, when intelligence and law enforcement agencies played back from the “wall” that had been erected between them. As fateful as that was, it at least had the merit of being about
American
constitutional rights. This is not.

And a final question. Is anyone traveling with us? Is any other nation working to extend its domestic constitutional protections to foreigners when it comes to foreign intelligence collection?

I didn’t think so.

 • • • 

I
GOT TO DELIVER
a little of this hard message personally at the Munich Security Conference in February 2014. I was on the agenda (and I’m serious here) at ten-thirty at night onstage in the bar of the host hotel. My copanelists included former congresswoman Jane Harman and my old German counterpart, August Hanning. With everyone swilling Pils and such a touchy topic, it promised to be an interesting session.

Without confirming any US intelligence operations, I talked about how leadership intentions were a high-priority target for any nation. I then freely admitted that Angela Merkel was a true friend of the United States, but asked the audience about her predecessor, Gerhard Schröder, who did a variety of things inconsistent with the American view of the world. We had different points of view on the Iraq war and with regard to his approach to Russia. Then there was the Gazprom billion-euro loan guarantee that seemed to be rewarded with a lucrative board appointment shortly after he left office. “Intelligent statecraft,” I asked, “or something more?”