Not mine. Just another
article penned by a bored, retired Commander from Plymouth. A history of
spying...
American Intell and the
Birth of the Signals Intelligence Directorate/SIGINT
In June 1942, the bulk of the Japanese
fleet sailed to seize the Island of Midway. Had Midway fallen, Pearl
Harbor would have been at risk and U.S. submarines, unable to refuel
at Midway, would have been much less effective. Most of all, the
Japanese wanted to surprise the Americans and draw them into a naval
battle they couldn't win.
The Japanese fleet was vast. The
Americans had two carriers left intact in addition to one that was
horribly damaged. The United States had only one advantage: It had
broken Japan's naval code and thus knew a great deal of the country's
battle plan. In large part because of this cryptologic advantage, a
handful of American ships devastated the Japanese fleet and changed
the balance of power in the Pacific permanently.
This -- and the advantage given to the
allies by penetrating German codes -- taught the Americans about the
centrality of communications code breaking. It is reasonable to argue
that World War II would have ended much less satisfactorily for the
United States had its military not broken German and Japanese codes.
Where the Americans had previously been guided to a great extent by
Henry Stimson's famous principle that "gentlemen do not read
each other's mail," by the end of World War II they were
obsessed with stealing and reading all relevant communications.
The National Security Agency evolved
out of various post-war organizations charged with this task. In
1951, all of these disparate efforts were organized under the NSA to
capture and decrypt communications of other governments around the
world -- particularly those of the Soviet Union, which was ruled by
Josef Stalin, and of China, which the United States was fighting in
1951. How far the NSA could go in pursuing this was governed only by
the extent to which such communications were electronic and the
extent to which the NSA could intercept and decrypt them.
The amount of communications other
countries sent electronically surged after World War II yet
represented only a fraction of their communications. Resources were
limited, and given that the primary threat to the United States was
posed by nation-states, the NSA focused on state communications. But
the principle on which the NSA was founded has remained, and as the
world has come to rely more heavily on electronic and digital
communication, the scope of the NSA's commission has expanded.
What drove all of this was Pearl
Harbor. The United States knew that the Japanese were going to
attack. They did not know where or when. The result was a complete
disaster. All American strategic thinking during the Cold War was
built around Pearl Harbor -- the deep fear that the Soviets would
launch a first strike that the United States did not know about. The
fear of an unforeseen nuclear attack gave the NSA leave to be as
aggressive as possible in penetrating not only Soviet codes but also
the codes of other nations. You don't know what you don't know, and
given the stakes, the United States became obsessed with knowing
everything it possibly could.
In order to collect data about nuclear
attacks, you must also collect vast amounts of data that have nothing
to do with nuclear attacks. The Cold War with the Soviet Union had to
do with more than just nuclear exchanges, and the information on what
the Soviets were doing -- what governments they had penetrated, who
was working for them -- was a global issue. But you couldn't judge
what was important and what was unimportant until after you read it.
Thus the mechanics of assuaging fears about a "nuclear Pearl
Harbor" rapidly devolved into a global collection system,
whereby vast amounts of information were collected regardless of
their pertinence to the Cold War.
There was nothing that was not
potentially important, and a highly focused collection strategy could
miss vital things. So the focus grew, the technology advanced and the
penetration of private communications logically followed. This was
not confined to the United States. The Soviet Union, China, the
United Kingdom, France, Israel, India and any country with foreign
policy interests spent a great deal on collecting electronic
information. Much of what was collected on all sides was not read
because far more was collected than could possibly be absorbed by the
staff. Still, it was collected. It became a vast intrusion mitigated
only by inherent inefficiency or the strength of the target's
encryption.
Justified Fear
The Pearl Harbor dread declined with
the end of the Cold War -- until Sept. 11, 2001. In order to
understand 9/11's impact, a clear memory of our own fears must be
recalled. As individuals, Americans were stunned by 9/11 not only
because of its size and daring but also because it was unexpected.
Terrorist attacks were not uncommon, but this one raised another
question: What comes next? Unlike Timothy McVeigh, it appeared that
al Qaeda was capable of other, perhaps greater acts of terrorism.
Fear gripped the land. It was a justified fear, and while it
resonated across the world, it struck the United States particularly
hard.
Part of the fear was that U.S.
intelligence had failed again to predict the attack. The public did
not know what would come next, nor did it believe that U.S.
intelligence had any idea. A federal commission on 9/11 was created
to study the defense failure. It charged that the president had
ignored warnings. The focus in those days was on intelligence
failure. The CIA admitted it lacked the human sources inside al
Qaeda. By default the only way to track al Qaeda was via their
communications. It was to be the NSA's job.
As I have written, al Qaeda was a
global, sparse and dispersed network. It appeared to be tied together
by burying itself in a vast new communications network: the Internet.
At one point, al Qaeda had communicated by embedding messages in
pictures transmitted via the Internet. They appeared to be using free
and anonymous Hotmail accounts. To find Japanese communications, you
looked in the electronic ether. To find al Qaeda's message, you
looked on the Internet.
But with a global, sparse and dispersed
network you are looking for at most a few hundred men in the midst of
billions of people, and a few dozen messages among hundreds of
billions. And given the architecture of the Internet, the messages
did not have to originate where the sender was located or be read
where the reader was located. It was like looking for a needle in a
haystack. The needle can be found only if you are willing to sift the
entire haystack. That led to PRISM (a mass data collection program)
and other NSA programs.
The mission was to stop any further al
Qaeda attacks. The means was to break into their communications and
read their plans and orders. To find their plans and orders, it was
necessary to examine all communications. The anonymity of the
Internet and the uncertainties built into its system meant that any
message could be one of a tiny handful of messages. Nothing could be
ruled out. Everything was suspect. This was reality, not paranoia.
It also meant that the NSA could not
exclude the communications of American citizens because some al Qaeda
members were citizens. This was an attack on the civil rights of
Americans, but it was not an unprecedented attack. During World War
II, the United States imposed postal censorship on military
personnel, and the FBI intercepted selected letters sent in the
United States and from overseas. The government created a system of
voluntary media censorship that was less than voluntary in many ways.
Most famously, the United States abrogated the civil rights of
citizens of Japanese origin by seizing property and transporting them
to other locations. Members of pro-German organizations were harassed
and arrested even prior to Pearl Harbor. Decades earlier, Abraham
Lincoln suspended the writ of habeas corpus during the Civil War,
effectively allowing the arrest and isolation of citizens without due
process.
There are two major differences between
the war on terror and the aforementioned wars. First, there was a
declaration of war in World War II. Second, there is a
provision in the Constitution that allows the president to suspend
habeas corpus in the event of a rebellion. The declaration of war
imbues the president with certain powers as commander in chief -- as
does rebellion. Neither of these conditions was put in place to
justify NSA programs such as PRISM.
Moreover, partly because of the
constitutional basis of the actions and partly because of the nature
of the conflicts, World War II and the Civil War had a clear end, a
point at which civil rights had to be restored or a process had to be
created for their restoration. No such terminal point exists for the
war on terror. As was witnessed at the Boston Marathon -- and in many
instances over the past several centuries -- the ease with which
improvised explosive devices can be assembled makes it possible for
simple terrorist acts to be carried out cheaply and effectively. Some
plots might be detectable by intercepting all communications, but
obviously the Boston Marathon attack could not be predicted.
The problem with the war on terror is
that it has no criteria of success that is potentially obtainable. It
defines no level of terrorism that is tolerable but has as its goal
the elimination of all terrorism, not just from Islamic sources but
from all sources. That is simply never going to happen and therefore,
PRISM and its attendant programs will never end. These intrusions,
unlike all prior ones, have set a condition for success that is
unattainable, and therefore the suspension of civil rights is
permanent. Without a constitutional amendment, formal declaration of
war or declaration of a state of emergency, the executive branch has
overridden fundamental limits on its powers and protections for
citizens.
Since World War II, the constitutional
requirements for waging war have fallen by the wayside. President
Harry S. Truman used a U.N resolution to justify the Korean War.
President Lyndon Johnson justified an extended large-scale war with
the Gulf of Tonkin Resolution, equating it to a declaration of war.
The conceptual chaos of the war on terror left out any declaration,
and it also included North Korea in the axis of evil the United
States was fighting against. Former NSA contractor Edward Snowden is
charged with aiding an enemy that has never been legally designated.
Anyone who might contemplate terrorism is therefore an enemy. The
enemy in this case was clear. It was the organization of al Qaeda but
since that was not a rigid nation but an evolving group, the
definition spread well beyond them to include any person
contemplating an infinite number of actions. After all, how do you
define terrorism, and how do you distinguish it from crime?
Three thousand people died in the 9/11
attacks, and we know that al Qaeda wished to kill more because it has
said that it intended to do so. Al Qaeda and other jihadist movements
-- and indeed those unaffiliated with Islamic movements -- pose
threats. Some of their members are American citizens, others are
citizens of foreign nations. Preventing these attacks, rather than
prosecuting in the aftermath, is important. I do not know enough
about PRISM to even try to guess how useful it is.
At the same time, the threat that PRISM
is fighting must be kept in perspective. Some terrorist threats are
dangerous, but you simply cannot stop every nut who wants to pop off
a pipe bomb for a political cause. So the critical question is
whether the danger posed by terrorism is sufficient to justify
indifference to the spirit of the Constitution, despite the current
state of the law. If it is, then formally declare war or declare a
state of emergency. The danger of PRISM and other programs is that
the decision to build it was not made after the Congress and the
president were required to make a clear finding on war and peace.
That was the point where they undermined the Constitution, and the
American public is responsible for allowing them to do so.
Defensible Origins, Dangerous Futures
The emergence of programs such as PRISM
was not the result of despots seeking to control the world. It had a
much more clear, logical and defensible origin in our experiences of
war and in legitimate fears of real dangers. The NSA was charged with
stopping terrorism, and it devised a plan that was not nearly as
secret as some claim. Obviously it was not as effective as hoped, or
the Boston Marathon attack wouldn't have happened. If the program was
meant to suppress dissent it has certainly failed, as the polls and
the media of the past weeks show.
The revelations about PRISM are far
from new or interesting in themselves. The NSA was created with a
charter to do these things, and given the state of technology it was
inevitable that the NSA would be capturing communications around the
world. Many leaks prior to Snowden's showed that the NSA was doing
this. It would have been more newsworthy if the leak revealed the NSA
had not been capturing all communications. But this does give us an
opportunity to consider what has happened and to consider whether it
is tolerable.
The threat posed by PRISM and other
programs is not what has been done with them but rather what could
happen if they are permitted to survive. But this is not simply about
the United States ending this program. The United States certainly is
not the only country with such a program. But a reasonable start is
for the country that claims to be most dedicated to its Constitution
to adhere to it meticulously above and beyond the narrowest
interpretation. This is not a path without danger. As Benjamin
Franklin said, "They that can give up essential liberty to
obtain a little temporary safety deserve neither liberty nor safety."
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