"Is the law good, is the law bad?" Why the NSA debate over legality is so misguided

It's amazing what the intelligence community can get away with -- if the one standard is whether something is legal

By Heather Digby Parton


Published November 19, 2014 8:09PM (EST)

Rand Paul, Mitch McConnell          (AP/Manuel Balce Ceneta/Reuters/John Sommers II)
Rand Paul, Mitch McConnell (AP/Manuel Balce Ceneta/Reuters/John Sommers II)

It was just about six and half years ago that the Senate voted to amend the 1978 FISA act after it had been revealed in the press that the administration was spying on Americans without warrant and were using the nation's telcom industry to do it. The bill was described this way by the ACLU:

· Gives the president broad new powers to spy on innocent Americans’ phone calls and emails – even when they have no connection to terrorism. It legalizes mass, untargeted and unwarranted spying on our international phone calls and emails.

· Restricts judicial oversight of the surveillance program. The FISA court will not know who, what or where will actually be monitored, and the government can continue a spying program even after it has been denied by the court.

· Provides retroactive immunity to the telecommunications companies for their role in the president’s domestic spying program. The test in the bill is not whether government certifications sent to the companies were actually legal – only whether they were issued.

If you'd like to refresh your memory this Rachel Maddow clip from the night before the vote lays out the state of play very clearly:

That vote caused quite an uproar on the left, particularly among those who were concerned with civil liberties, because the vast majority had gone all in for Senator Barack Obama in the presidential primary largely on the basis of his approach to national security and he had explicitly promised to support a filibuster of this bill if it came to the floor. He voted for the bill instead thus marking the first scales to fall from the eyes of some civil libertarian supporters. Not all of them were upset of course. In fact, this comment from a Daily Kos diary made it all the way to the New York Times and it reflected a theme among many Democrats that continues to this day:

“The FISA bill is obviously imperfect, but I do not believe that a serious Presidential candidate can afford to vote ‘no’ on legislation that is intended to help prevent terrorist attacks. If Obama were to oppose the bill as a whole, he would be handing McCain — who didn’t even bother to show up and vote today — a huge opening to scare voters and paint Obama as weak on terrorism.”

That candid rationale works pretty much for every elected member of the government and at least partially explains why no matter what is revealed about intelligence agencies abusing civil liberties, the end result is always two steps forward for the intelligence agencies for every one step they're yanked back.

Last night after Senate Patrick Leahy pulled rank, Harry Reid reluctantly put the latest version of "intelligence reform" on the docket. It was called the USA Freedom Act and was substantially better than that bill from 2008. It was also substantially better than the House bill that was passed earlier this year after all those alleged GOP civil libertarians watered it down to nothing. The Senate bill didn't survive a Republican filibuster, only managing to garner 58 votes, 2 votes short of the required 60. All the Democrats voted for it along with 4 Republicans. Senator Rand Paul said he voted against the bill because he felt it wouldn't get the job done. Senator Mitch McConnell spoke for the rest of the GOP hawks when he proclaimed:

At a moment when the United States is conducting a military campaign to disrupt, dismantle and defeat ISIS, now is not the time to be considering legislation that takes away the exact tools we need to combat ISIS.

If it had passed it would have been the first time since FISA was created in 1978 that they'd taken even the smallest steps to pull back the powers of the intelligence agencies rather than expand them. It's only been 36 years.

The ACLU endorsed this one saying:

It's not perfect, and it only deals with one narrow surveillance authority, but here's why the ACLU supports the bill as introduced:

It ends bulk collection and significantly limits the ability of the government to conduct dragnet surveillance under Section 215 of the Patriot Act...

If the government abuses its authority, this bill could ensure we would find out about it...

The bill would place someone inside the FISC to advocate for us.

All that sounded good. But saying it's far from perfect is an understatement. Civil liberties watchdog (and Salon contributor) Marcy Wheeler did not support the bill for a number of good reasons. Her main problem with it is very much worth considering because it speaks to a fundamental problem with intelligence community oversight by congress in general. Yes, it will potentially foreclose some of the abuses we've seen in recent years. But changing the law, legalizing specific activities while placing others off limits, is like plugging one hole in the dike. Let's just say the intelligence agencies have shown themselves to be very creative when it comes to finding ways to "legally" do what it wants to do.

One story from the Bush era shows just how clever they can be. As related in the great Frontline documentary The United States of Secrets, there came a moment when all the top members of the Justice Department threatened to resign over the president's illegal wiretap program. It was probably the most serious crisis of its kind since the Saturday Night Massacre during Watergate, with the potential for the administration to become mired in a constitutional crisis. But the Intelligence community found a work-around:

NARRATOR: The warrantless e-mail data collection was shut down. The crisis was averted. But at the White House, they were determined to resume it.

RYAN LIZZA, The New Yorker: And so there— there’s sort of a literally, you know, sort of sifting through the FISA law. They’re sifting through the Patriot Act trying to find existing laws, existing authorities, you might call it loopholes, to justify these programs.

NARRATOR: General Hayden was sent to the secret FISA court to convince a judge to restart it.

MICHAEL HAYDEN: Could we get a court order to authorize this? And so we began a very aggressive program with the chief judge of the FISA court at that time, Judge Kollar-Kotelly, to take that part of the program that had been stopped and present it to her to see if we could get an order to allow that program to go forward.

RYAN LIZZA: Hayden personally meets with Judge Kotelly of the FISA court on two Saturdays to make the pitch, to explain how they’re going to do this. And Kotelly eventually rules that this is legal, that the NSA can indeed collect all of the Internet metadata going to and from the United States. And they use this authority — that previously was used to trace numbers going to and from a single telephone — for everybody.

NARRATOR: Kollar-Kotelly’s secret ruling relied on a controversial interpretation of a 25-year-old Supreme Court case.

BARTON GELLMAN: This was, frankly, a huge stretch. The idea that you could use this to justify the collection of trillions of pieces of Internet metadata surprised a lot of people when it came out in the Snowden archives. But that’s where they went.

NARRATOR: The program was back on line, bigger than ever.

MICHAEL HAYDEN: That part of the program, over which there was a grand dispute in the spring of 2004, was resumed in large measure under a different legal theory by the fall of 2004.

Just because the Justice Department believed the program was illegal didn't mean Michael Hayden couldn't go searching for a compliant FISA judge to secretly legalize it. And so he did. The crisis was averted and everyone was happy.  It is on that basis that the government is able to claim that the massive dragnet of everyone's communications is legal, which apparently satisfied everyone involved. Evidently nobody cared much whether it was actually useful and certainly nobody cared whether it was right. It was now legal and constitutional, at least according to one member of a secret tribunal.

This new paper by legal scholar Margo Schlanger is an important analysis of the fundamental concept all these spies and analysts rely upon: that they can do whatever they want as long as it isn't explicitly illegal. In these two short blog posts, written in anticipation of a longer article to be published shortly in the journal Democracy, she traces the history of how the Intelligence Community came to rely on legalism to define its boundaries. It's important to note that this reliance on legal opinion and analysis from within the congress, the agencies and courts was a huge improvement over what came before --- which was nothing. Prior to the investigations in the 1970s there was no oversight and no legal framework and the result was that the Intelligence agencies ran amock, spying on Americans, infiltrating dissident groups, running domestic propaganda campaigns and much more. The revelations of that era were shocking and propelled the congress to take a role in oversight.

But this has proven to be inadequate. Oversight is essentially toothless, the secrecy undermines the ability of legal challenges to see the light of day and the FISA Court has proved to be a rubber stamp as that Michael Hayden anecdote above shows. Schlanger makes the important point that the focus on legality and rights creates an incentive for lawyers, lawmakers and judges to simply look for ways to justify what the intelligence community tells them is necessary to protect the nation rather than seek to perform the "balancing" act that most people agree is necessary for a free society. And, if that doesn't work, the congress can usually be prevailed upon to "legalize" what what was previously illegal under the same logic. In other words, the system is imbalanced not just because of ideology or politics or lack of legal guidance, it's imbalanced because the structure that relies on the law and the constitution as its only guide is inherently imbalanced. (Again, it's better than it was before the 1970s, but that's literally saying nothing.)

Schlanger concludes her second blog post piece with this:

To sum up, neither the Constitution nor FISA aims to optimally balance security and liberty—and well-understood difficulties in congressional intelligence oversight mean that new statutes are unlikely to fill that gap. Likewise the existing foundational Executive Order, 12333, is at the very least out-of-date. Accordingly, intelligence legalism and its compliance mindset, cannot achieve optimal policy. Its concomitant empowerment of lawyers is real and important, but does not deputize a pro-civil-liberties force. Indeed, legalism actually both crowds out the consideration of policy and interests (as opposed to law and rights), and legitimates the surveillance state, making it less susceptible to policy reform.

She will offer some innovative ideas about how to balance liberty and security in her longer article in the Democracy journal.

This is a vital conversation to have as we confront the challenges of dealing with new technologies and the very human desire to use whatever capabilities available to them to achieve their specific goals. Passing the USA Freedom Act may or may not have done much to change the dynamic. The optimistic view was that it might at least throw a few roadblocks in the way. But our experience of the past 35 years shows that the existing system of legislative and legal oversight is simply not enough when you are dealing with complex technologies in an environment of secrecy. It's time to rethink the whole scheme, particularly in light of comments like these from the new head of the NSA Admiral Michael Rogers:

"You can argue, is the law right, is the law good, is the law bad? That's a fair discussion for us as a society, as a nation, to have," he said. "But every review to date has come back [saying] that NSA fully complies with the law...

"It's been particularly frustrating for [our] workforce. They are citizens just like you. They come to work every day and they say to themselves, 'I've got an important mission. I've got a framework as to how I execute that mission. How do I go about generating the insights we need to help defend the nation?' They do not — do not — come to work and say to themselves, 'Hey, how can I systematically override the laws and the authorities that I've been granted?'"

Later in the same talk, when asked how he recruits young tech types to the NSA, he joked that he says:

"We're gonna let you do some really neat stuff. Some really neat stuff that, quite frankly, you can't legally do anywhere else."

That's the problem. Just because someone, somewhere has said something is legal, that doesn't make it right.

By Heather Digby Parton

Heather Digby Parton, also known as "Digby," is a contributing writer to Salon. She was the winner of the 2014 Hillman Prize for Opinion and Analysis Journalism.

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