One of NSA Director Keith Alexander’s cruelest feats? Forcing some of his fiercest critics (us) again to defend American self-interest and the role and purpose of intelligence. Despite NSA’s (and the Community’s) wanton, flagrant contempt for both. If Neocons were America’s malignant Id at her moment of apogee, then as Nemesis follows Hubris, they ushered in her over soon decline. NSA and the Community, engorged on national security self-entitlement, scuttled behind as ever-present shadow.
We get no pleasure writing that. Nor seeing so much needless and perhaps irretrievable ruin in Snowden’s aftermath. Much of it gleefully celebrated by those who care nothing for American interests, privacy or otherwise. It takes a big man to bring down an epoch in American and global history, they say. So why are Alexander and Snowden perfectly, coevally so small?
The seemingly ancient preceding post here about Obama’s first NSA-focused press conference reads quaintly now. We see in stark relief the cost of this Administration’s (typical) passivity. That’s not to excuse or diminish NSA’s stunning, profoundly stupid (and so totally unnecessary) transgressive acts. But we all should be clear about one distinction – intolerance for NSA’s transgressions is not embracing others’ attempt to exploit political fallout to see America diminished.
What does that mean? Snowden and NSA are part of a larger protracted struggle to damage American moral and social authority. This campaign is many years old. Its goal? To so badly damage the entire American Brand — if you will –it’s ultimately delegitimized, from international security to Hollywood’s global impact to technology leadership.
And then when the tarnish is undeniable, to toss the American Brand aside like a spent can of Diet Coke. To be replaced by someone else’s hegemonic brand. Some U.S. domestic critics openly wish this and seize on Snowden. While a vocal, fringe minority, they are heirs to Romans cheering in 476 or SDS kids chanting Ho, Ho Ho Chi Minh.
Naturally, international actors of all sorts exploit the global confusion. Can you blame them? What a chance to mainstream their American deconstruction agenda into US political discourse, cynically feigning common moral outrage and goals. Who? Start with every authoritarian country to whom Snowden pleaded for refuge. Add Europe and others who have long sought to hasten a post-American order (while clinging to its benefits).
That dream of savoring a soda can’s crunch sound is a ways off. And is unlikely, too. Still, they get a nice consolation prize. Imagine them seeing the spectacle of Americans ripping their own political guts out for them. The whole tawdry process is not totally unlike an unthinking, wounded shark hungrily feasting on its own bloody entrails. Gnashing away. Sure, *that’s* a jarring image. Granted. But is it totally inapt?
Flailing among specialist circles, mass media, and of course, political actors resemble our shark. Just one packaged leak in the media, like chum in the water, goads them into paroxysms of further self-immolation. In real life, the snapping shark can’t help itself. And Americans can’t distinguish among intolerable domestic abuses of statute, Constitution and foreign intelligence collection.
One way for sure NOT to be that shark and shut down the agendas of others? Focus on our own key question: “How do liberal democratic republics function in today’s digital world with intelligence?” We believe the shift from the analog to digital worlds adds far deeper challenges than traditional oversight approaches and legal solutions can accommodate. When NSA and FBI complained of the incipient digital world in the 1990s for their collection, few understood the much broader challenge of adopting legal and oversight fundamental approaches. First step? The War on Terrorism’s [sic] self-righteous exaltation of Ends trumps Means needs to overthrown. We must reverse the Community’s arrogant assumption that they always will be the Who to our Whom (in that famous phrase).
Which brings us full circle to where we began: Keith Alexander’s truly evil conjuring trick. Here the Stiftung actually, subjectively to “defends” him and NSA (writ large, only) even in this extraordinarily oblique way. It’s appalling to us. We hope for you, too.
Make no mistake. We really did oppose PATRIOT *at the time* on Capitol Hill. Even in the shock of late 2001. Talk about spitting into the wind. We absolutely and categorically agree that John Ashcroft (whom we discussed when meeting in 2000s here) et al. later were right to stand up to Cheney/Fredo/NSA. We have been conducting this skirmish since the early 1990s in one way or another from post-Clipper Chip CALEA (with the FBI/FCC themselves cut outs playing cut outs again) and so on. NSA’s willful misleading of FISC after Ashcroft’s stand (made famous in one FISC decision’s foot note) shows a long running and profound contempt for rule of law and the Constitution. Long story short.
But the solution is not wanton tearing down. We do not have to be that shark.
We believe liberal democratic republics have legitimate and proper foreign intelligence requirements that can co-exist with our Constitution. And the balance in law and accountability can be found in a digital world. This is just a possibility. Nothing more. Will America make it real?
The prognosis isn’t great. What Obama and Community apologists do not understand is that effective constitutional oversight can never rest on empty proceduralism. In fact, empty proceduralism is exactly what Bill Casey – and significantly, his protege David Addington – hoped from the start would destroy oversight in actual practice. The political theater of hollow pretense. Bill Casey got his way. Just 20 years later.
Oversight works when it is premised on a practical, operational system of checks and balances. We utterly reject the Federalist/Cheney/Executive Branch ‘cultists’ that the alternative, separation of powers model, providing compartmentalized responsibilities is appropriate, legally sound or workable. The tatters of the actual 1980 Intelligence Oversight Act framework are inherently salvageable — provided that Congress and Senators especially remember they are not a Duma but a co-equal branch of government. The House institutionally is probably lost to this for a generation if not more as on many other issues.
But we hold no illusions. Regulatory capture is inevitable regardless of subject. Anyone designing regulatory systems knows this to be true. SSCI and HPSCI long ago succumbed as say the SEC and FCC have in their respective silos. The hardest work ahead is re-imagining what effective congressional oversight should be. Congress as an institution simply may no longer be capable of such broad creative undertakings.
SSIC reported out a bill that essentially enshrines the status quo as the New Legal. Committees of jurisdiction rarely seek to knock over their own rice bowl. Leahy’s Judiciary is slight more aggressive, suggesting that parts of PATRIOT may not have been so good after all. (None of these people spoke up earlier on the sunset re-authorizations beginning in the mid 2000s). It’s also smart politics, laying down various markers for future compromise, passage and conference if it gets that far. We now think it will, eventually.
We asked earlier “How do liberal democratic republics function in today’s digital world with intelligence?” A related one is can an answer be found with a representative democracy bludgeoned by a broken Congress. Remember that shark we spoke of? Without a working Congress, asking that chomping shark to stop and think makes it all moot.