Tuesday, May 27, 2014

A Summary of United States of Secrets

Frontline is my favorite news documentary television program.  I do not watch every Frontline but I pay attention to its schedule.  Its in-depth coverage of the origins of the 2008 financial crisis was outstanding reporting and my review of its coverage is my most popular blog post ever. Last week, Frontline once again demonstrated its profound relevance and investigative integrity with a two-part documentary entitled "United States of Secrets."

This three-hours of television journalism blew my mind. "United States of Secrets" is better than any fictional political thriller any author could come up with.  It is a story of vast overreach of governmental authority, unconstitutional acts, and political lying by both the Bush and the Obama administrations. This is the story of how we as a society lost all semblance of privacy and due process of law.

The National Security Agency (NSA) reads every email, every tweet, looks at every photo you upload to "the cloud", analyzes every phone call you make, tracks your movements, all with virtually no judicial oversight and no accountability. This is not even a matter of opinion.  It is a substantiated fact. Here's how that came to be.

The terrorist attacks in the United States on September 11, 2001 stunned our nation like no other singular event since the 1942 Japanese attack on Pearl Harbor.  Very rapidly, the Federal Government's intelligence community mobilized to meet this threat and prevent future incidents. The entire NSA was as surprised by the attacks as anyone.  Their primary purpose was to detect and prevent major attacks upon the United States. They had failed.  It was a catastrophic failure.

Vice-president Dick Chaney sought advice from White House counsel to make certain that President George W. Bush was given all the powers entitled to the Office of the President during times on national calamity.  Chaney's policy was to push the limits of power and keeping pushing until some other political force stopped them. Simultaneously, the NSA developed the internal perspective that they had failed because they had not been aggressive enough with their intelligence gathering operations.  This was largely due to spying operations conducted back during the Nixon administration.  The NSA had its powers curtailed as part of the backlash from the Watergate scandal. NSA spying on Americans was severely limited for the next 30 years.

Former Attorney General Alberto Gonzales describes the basic motivation post-9/11: "We have to remember we had terrorists living in this country for a number of months and we didn't know about it. What else didn't we know? We not only could not connect the dots, we could not collect the dots." Vice-President Chaney directed Central Intelligence Agency director George Tenet to make a "shopping list" of things national intelligence was not allowed to do that they would like to do in order to proceed with an aggressive intelligence response to the situation.

On October 4, 2001, President Bush secretly signed the executive order for "The Program."  At this point the NSA was empowered to monitor all Internet traffic, foreign and domestic, within the United States and all telephone calls being placed within the US.  The stated goal was to detect terrorists before they were known and monitor their activities more thoroughly.  The order was written by Chaney's attorney, not Bush's attorney. Key NSA attorneys, in separate opinions, agreed that the presidential authorization for The Program was constitutional under Article Two.

Emails, texting, Skype activities, everything started to be collected and analyzed.  But there was an urgent need for a data system and protocol sophisticated enough to handle all this data. It so happened that one already existed but had never been fully implemented.  The program was called ThinThread.  This massive computer system featured built-in encryption safeguards to protect privacy.  It had the staggering ability to monitor communications of everyone in the world, anonymously, unless there was a court order which then allowed necessary identities to be known.

The Program was so secret almost no one inside the NSA even knew about it.  So it came as a surprise to some NSA officials when ThinThread was not selected for use by The Program. They were told another program had been chosen to handle the collection process.  That was about the time that massive amounts of servers and related hardware started to arrive at NSA headquarters in Fort Meade.

Before long word of The Program was being leaked within the NSA itself.  Directing servers that were all heretofore pointing outward, beyond the United States, suddenly inward toward the network infrastructure of the US population itself, was causing grave concerns.  Some NSA employees did not feel comfortable with what was happening.

Among the leaking information was the fact that ThinThread was, in fact, being brought into operation - only with all the encryption removed. Everything and everyone was totally visible and collectible and analyzable.  This was boundless surveillance with no judicial or political oversight at all.  It was all top secret.

In late October 2001, three NSA officials in charge of ThinThread took early retirement on their on volition.  All were opposed to how their massive data collection system was being used by The Program.  A fourth member, NSA senior executive Thomas Drake, stayed on despite voicing grave concerns. He finally took these concerns before the NSA General Counsel who confirmed that the operation was completely legal, citing numerous documents signed by numerous lawyers.  What's more, the employee was told "these are extraordinary times, they require extraordinary measures.  Please don't ask anymore questions."

Next, the NSA began secretly working with all major US telephone companies to get access to their data. An NSA official decided to go to congress with what was happening. He approached Diana Roark, a key Republican intelligence staffer, and informed her that there was a massive program enacted "for the collection of domestic communications. A collection in dragnet fashion. A collection on everybody." The Republican staffer was "aghast because this constituted a compete reversal of NSA policy."

Roak immediately went to key congressional Republicans. She found no sympathy.  These congressional leaders had already been briefed secretly at the White House weeks before. Everyone felt it was best for the country.  By summer 2002 The Program was in full stride. Roark states: "I argued very strongly that they needed to have the protections restored.  I told them that if the administration did not do this, they should insist that the system be killed, stopped.  I said it was unethical, immoral, politically stupid, illegal and unconstitutional. And stop.  And when this comes out all hell is going to break loose."

She was summoned directly to meet with General Michael Hayden, the head of NSA.  Roark questioned Hayden on why the encryption was not being used.  Hayden only answered that "what we are doing is lawful and what we are doing is effective." Hayden stated he felt The Program fell within the powers of the President as outlined in Article Two of the Constitution.  Hayden then asked Roark to stop lobbying against The Program and keep her knowledge of it to herself. Though concerned, she agreed to remain silent.

The Foreign Intelligence Surveillance Agency (FISA) was setup in the aftermath of Watergate to ensure that all government wiretaps were authorized by a court order and to issue warrants for such activity if the evidence justified it.  In 2003, key players at FISA were becoming aware that the government was obtaining information on certain people inside the US without any warrants at all.  Thomas Tamm first tried to speak to his superiors at the Department of Justice about what was going on.  He got nowhere.  Then he spoke with a powerful senate staffer who advised him to keep quiet.

Jack Goldsmith was selected by Chaney to head the President's Office of Legal Counsel, charged with reviewing the legality of top secret operations. When it came time to learn about The Program, Goldsmith thought it was odd that he was summoned to the Vice-President's (not the President's) counsel's office.  But the original authorization for the The Program was stored in a safe under Chaney's supervision. Goldsmith did not react the way Chaney thought he would. "The Program was an example of the administration going it alone, in secret, based on inadequate legal reasoning and flawed legal opinions."

Relations between Justice Department and the White House became contentious.   Goldsmith felt that what was happening was a massive felony against tens of millions of Americans. Chaney and his key advisers vehemently disagreed and reintegrated that The Program was absolutely necessary to prevent further terrorist attacks.  The Program had to be reauthorized every 45 days by the Attorney General.  At this point the Attorney General refused to sign the re-authorization due to the amount of dissent within his office.

Chaney had his own counsel draw up a new order only this time there was a place for the White House counsel to sign, rather than the Attorney General.  At this same time, over 190 people were killed in 10 separate al Qaeda attacks in Madrid, Spain.  It was obvious that the terrorist organization was still alive and thriving.  General Hayden agreed to accept the re-authorization signed by White House counsel instead of by the Attorney General.  The Program continued.

Over at the Justice Department, Goldsmith prepared his resignation.  Dozens of department officials were prepared to join him, they were so sure that both the authorization and the activities of the government were illegal.  Even the head of the Federal Bureau of Investigation expressed his intent to resign over the aggressive actions of Chaney and his counsel, Alberto Gonzales.

With two dozen Bush political appointees threatening to resign, the President had no choice to address them directly. This was 2004, an election year, and Bush's chances for reelection would be threatened by such a mass high-profile resignation within his own political appointees. Bush met privately with the FBI director.  It was suddenly clear that Chaney had not informed Bush about all of this in-fighting. Bush instructed the FBI director to "fix this."  The unauthorized collection of warrantless data within The Program was shut down.  The crisis was averted.

But Chaney and Hayden immediately began an aggressive campaign to obtain legal authorization through FISA. Eventually, FISA agreed with their arguments and The Program was up and running again about six months later. On the campaign trail, Bush repeatedly stated that the NSA operations were only directed at individuals where a court order had been issued.  Indeed this was partly true. Orders were being issued and activities were more heavily directed in these areas.  But, simultaneously, Bush did not reveal that, in fact, there was a wiretap and internet data collection on every single person in the United States.

Meanwhile, Tamm, who knew nothing of the threat by the higher echelon of the Justice Department to resign, decided to leak information to The New York Times.  But the Times was already investigating the story from previous reporting efforts. Tamm's revelations added fuel to the fire. The Times contacted Hayden for comment on the possibility that The Program might exist.  Hayden sounded the alarm.  The White House met with the Times.  This was still 2004.  It was still an election year.  Once again, pressure from The White House defused the situation. The matter was simply too sensitive to be made public and there was, apparently, substantial legal basis for the constitutionality of the activity. Exposing The Program would jeopardize national security. Ultimately, the editors at the Times decided to back off.

But not for long.  In December 2005 the Times decided to run the story and reveal the existence of The Program.  What changed their mind was the fact that one of their own reporters was threatening to publish a book with the information in it.  The editors debated among themselves. They were summoned to the White House.  Bush made a personal plea, stating that they would endanger lives of Americans if they printed the story.  But this time the story ran and it shocked the world.

Bush went on the attack.  In a nationally televised address he admitted that The Program existed. Bush admitted that he had authorized the NSA to eavesdrop on known terrorists and to monitor their activity.  What he did not mention was that The Program was doing much more than that.  It was collecting data on everyone in the United States. The trillions of telephone calls and trillions of emails that The Program was analyzing was not a part of his address.  What Bush stated seemed reasonable.  The wider dragnet aspects of The Program remained secret and were not mentioned in the Times report.  And The Program continued without serious opposition.

General Hayden held his own press conference.  He told everyone: "This is targeted.  This is focused. This is about al-Qaeda.  One end of any call targeted is always directed outside the United States."  This was blatantly untrue but it sounded reassuring to the American public.  Frustrated key NSA and Justice Department personnel, hearing the political spin, now started leaking details to the Baltimore Sun and The New York Times about the expansive nature of The Program. Chaney went ballistic about the leaks and ordered Attorney General Alberto Gonzales to track down the leakers.

After months of investigation with nothing to show for their efforts, the FBI finally raided all the homes of the key suspects including Diane Roark.  All these individuals had their hard drives and other technical equipment confiscated from their homes. Some were found to contain classified information. The government decided to prosecute.  By now it was 2008, another election year. And Barack Obama was promising to create the most transparent administration in history. Obama promised no more illegal wiretaps, no more ignoring the law "when it is inconvenient." Those raided by the FBI were now hoping that an Obama election would keep them out of prison.

In the waning days of the the Bush administration, there was a final push to make The Program permanent with an attempt to pass The FISA Amendments Act of 2008. President Bush stated: "Without this law our ability to prevent new attacks will be weakened. And it will become harder to uncover terrorist plots." Candidate Barack Obama faced a choice as to whether or not to vote for this bill.  Obama needed to look strong against terrorism, he needed to look presidential.  Over widespread criticism from his own party, Obama voted in favor of the bill.

Obama won the election.  Only after he began his security briefings as President did Obama learn the full extent of The Program.  The President's intelligence advisers strongly favored The Program. Upon hearing all the information, Obama became convinced The Program was necessary and he would own it.  The NSA was now spending more than $10 billion a year capturing communications of people in the United States and around the world.

The technological skills necessary to run The Program and keep it effective required a large number of private contractors to do the work, to obtain the data and store it in ways that could be massively analyzed with sophisticated tools.  One such contractor was Edward Snowden, who had special clearance to work on many parts of The Program simultaneously.  When Snowden learned that Obama had decided to keep all of The Program with all of the millions of warrantless searches in place, without any change from the Bush-Chaney intentions, he began to consider the possibility, like so many before him, of leaking information.  Only this time he had more direct information about The Program and far greater access to data stored within The Program than any of the previously mentioned whistler blowers.

Obama did nothing to stop the prosecutions of the alleged leakers that began late in the Bush administration. Ultimately, however, none of those under investigation were ever charged. The matter was slowly allowed to die quietly with a few receiving minimal fines and orders for community service. Meanwhile, Snowden learned from the other whistle blowers. Snowden knew he had to have a lot of genuine data, not hearsay.  He capture 1.7 million classified documents and began to reach out to a different set of journalists.

This is where Part One of the two-part Frontline report ends. In Part Two, "Privacy Lost", the Snowden leak, the largest intelligence leak in US history, is detailed.  It covers the development and expansion of the PRISM Program.  Also, the second part of this outstanding documentary discusses how corporate America, like Google and AT&T, began to collect data on internet usage in order to drive specific advertising revenue. Within these corporations, privacy was thought to be protected by various encryption routines.  But the US government, under the Obama administration, brought most major internet services providers into The Program. When some of these corporations attempted to keep the government out, the NSA simply hacked into these corporations, hacked into the very infrastructure of the Internet hubs in the US and all over the world, greatly amplifying the data collected. The Program today is more at massive than every before.

General Hayden understands the controversy about The Program.  He does not come across as some power-crazed individual.  He seems highly reasonable and even empathetic as long as you understand he has a job to do and he intends to do that job.  "You want to draw the box differently? You want to have the NSA work in a smaller box?  I got it.  But before you do that you have to understand what the cost might be. We live inside a democracy and public will matters in a democracy. I just hope that it is informed public will and, frankly, when the decisions are made you understand the cost."

But Barton Gellman frames the discussion in differently.  "So where we are now is that we are in a place where we live behind one way mirrors. Corporate America and law enforcement and the national security state know so much about us. And we know so little about them. We know little about what they are doing, how they are doing it. And we can't actually hold our government accountable because we truly don't know what it is doing."

I can not recommend this Frontline program enough.  It is three hours of television every American should watch.

Personal notes:  General Hayden wants us to have informed public opinion about a massive surveillance program that is completely secret and completely beyond the law in its operations.  How is that even possible?  What is it exactly we are being informed about General? Moreover, and this is, in my opinion, perhaps the most terrifying single fact about all this, Obama was highly public and rhetorical in his opposition to NSA activities prior to his election, but he decided to keep everything and change nothing regarding The Program when he became President - given that, doesn't this mean that what Obama was told in his initial national security briefings made it clear how effective The Program actually is at fighting terrorism?  Which begs the question, how prevalent is the terrorist threat that all of us have to monitored in order to prevent further attacks?

I think The Program is likely very effective.  And I also think that it is a direct violation of our individual liberties.  This sort of mass cataloging of an entire population is exactly what the Gestapo did in Germany in the 1930's.  Only The Program is far more powerful.  I know of no greater and more fundamental quandary we face as a people in America. A government that knows almost everything about you - from your emails to your telephone calls to your health records - can be a benevolent caretaker and protector.

But personal liberty is a myth, a whim of our government, and one day that government might decide, for whatever reason, to cash in on all the other data, the non-terrorist data that it has been cataloging on you and me for the past dozen years. What is to prevent this data from being used to get that person for porn on their PC and get that person for emailing a friend about the great marijuana at the party last week? Is this not, at the very least, a violation of the principle of checks and balances our government was founded upon?  Is it not, more importantly, a violation of our Fourth Amendment rights? Right now they can bust just about anybody for anything, just as the Gestapo did under Nazi Rule or the KGB did under Soviet communism.  They have all the cards.  We are living in a surveillance state.  It is not much more of a step from there to become a full-fledged police state.

No comments: