Now that the PRISM cat has been let out of the bag, the spies and former spies are coming out of the cupboards to do damage management. (I wrote a post about some of this last week). What’s interesting is that they give us an insight into how these discussions go on behind closed doors. For one of the saddest aspect of security services work is that smart people are diverted into work that is essentially self-generating and recursive; in that respect it’s like investment banking. Think what might be achieved if those resources and intellect were turned instead to solving, say, problems of hunger or poverty. But I digress.
Anyway, when it comes to damage control, there is a couple of contrasting approaches. But both sidestep the main issue: that public secrecy is a form of political corruption.
Exhibit 1, over at the US magazine Foreign Policy, where former security services lawyer Stewart Baker (more or less humming “Don’t you worry ’bout a thing” as he types) has spelt out the rationale as you might hear it if you were in one of those private government briefings:
Imagine that the United States is intercepting al Qaeda communications in Yemen. Its leader there calls his weapons expert and says, “Our agent in the U.S. needs technical assistance constructing a weapon for an imminent operation. I’ve told him to use a throwaway cell phone to call you tomorrow at 11 a.m. on your throwaway phone. When you answer, he’ll give you nothing other than the number of a second phone. You will buy another phone in the bazaar and call him back on the second number at 2 p.m.”
Anyway, this purely hypothetical scenario goes on in this vein for several paragraphs, and you know what? By the end of it, the only logical thing for the government to do is to monitor all U.S. phone traffic.
So although Baker – now in private legal practice – doesn’t have knowledge of recent specifics of the NSA, he’s heard enough of the conversations that spooks have with politicians to know how they go. This is a partisan piece, but provides an insight into the way PRISM was rationalised.
Rules of engagement
Exhibit 2: Sir David Omand, top former spook at GCHQ, and then a senior civil servant, writing in the pages of The Guardian. He set out what amounts to the rules of engagement for spookery. I’ve edited these down slightly.
There must be sufficient sustainable cause. Any tendency for the secret world to encroach into areas unjustified by the scale of potential harm to national interests has to be checked. …
There must be integrity of motive. No hidden agendas: the integrity of the whole system throughout the intelligence process must be assured, from collection to analysis and presentation.
The methods used must be proportionate. Their likely impact must be proportionate to the harm that is sought to prevent, for example by using only the minimum intrusion necessary into the private affairs of others.
There must be right and lawful authority. There must be the right level of sign-off on sensitive operations, with accountability up a recognised chain of command to permit effective oversight.
There must be a reasonable prospect of success. All intelligence operations need careful risk management, and before approval is given there has to be consideration of the likelihood of unintended consequences …
Recourse to secret intelligence must be a last resort. There should be no reasonable alternative way of acquiring the information by non-secret methods.
So here we have an ostensibly progressive agenda, although we know that no security service ever follows such an agenda, and that they spend much of their time working behind the scenes to ensure that such grim democratic shackles on their freedom to operate are never imposed.
And with a few days hindsight we also know that Sir Douglas – generally regarded as a progressive thinker on security – was boss of GCHQ from 1996 to 1997, then became Permanent Secretary at the Home Office until 2002, where he would have had significant input into security policy in the wake of 9/11, and then moved to the Cabinet Office, where he was Permanent Secretary and Security and Intelligence Co-ordinator (ditto, only more so). But strangely, none of these principles were put into place then. Omand was involved in the decision to pursue the weapons expert David Kelly. (As the saying goes you judge a system by what it does, not by what it says it does: you judge them even less by what they say they ought to do).
So it’s worth stepping back and remind ourselves of the scale of the spying that’s been revealed by Edward Snowden’s leaking, because it’s so extensive it’s easy to lose track of the size of the intrusion that it represents. Roger Cohen, in the New York Times, offered a useful counterfactual on what we wouldn’t know without Snowden:
We would not know how the N.S.A., through its Prism and other programs, has become, in the words of my colleagues James Risen and Eric Lichtblau, “the virtual landlord of the digital assets of Americans and foreigners alike.” We would not know how it has been able to access the e-mails or Facebook accounts or videos of citizens across the world; nor how it has secretly acquired the phone records of millions of Americans…
We would not be debating whether the United States really should have turned surveillance into big business, … We would not have a serious debate at last between Europeans … and Americans about where the proper balance between freedom and security lies. We would not have legislation to bolster privacy safeguards and require more oversight introduced by Senator Patrick Leahy.
One of the more depressing parts of the whole debate has been the assertions about the law by politicians on the defensive. It may be that all this spying has been done within the law (although at best it’s arguable). But the reason that this may be true is that politicians and spooks have colluded under the cover of the so-called “War on Terror” to suborn the law to the interests of the security services. As Simon Jenkins observed, “I have yet to encounter a British minister or parliamentarian who is not putty in the hands of Big Security, the security services and its attendant industries.”
The security state
As John Naughton argued in The Observer, tthe state that they have created is not so much Orwellian as Kafkaesque. Whatever oversight there is of the security services, it’s conducted in secret behind closed doors.
State: Although intrusive surveillance does infringe a few liberties, it’s necessary if you are to be protected from terrible things.
Citizen (anxiously): What terrible things?
State: Can’t tell you, I’m afraid, but believe us they are truly terrible. And, by the way, surveillance has already prevented some terrible things.
Citizen: Such as?
State: Sorry, can’t go into details about those either.
Citizen: So how do I know that this surveillance racket isn’t just bureaucratic empire building?
State: You don’t need to worry about that because it’s all done under legal authority.
Citizen: So how does that work?
State: Regrettably, we can’t go into details because if we did so then the bad guys might get some ideas.
So let’s just step back to one of the classic texts on political secrecy, Daniel Moynihan’s Secrecy, published in the mid-90s. Moynihan had chaired a bipartisan Commission on Protecting and Reducing Government Secrecy, which reported in March 1997. The six recommendations can be found here, but in essence they say that information should be classified only when there is a “demonstrable need”, that classification should usually be limited to ten years, that information should never be withheld from Congress, and that a declassification centre should be set up to make sure that information is declassified at the right time.
Secrecy as corruption
Moynihan saw secrecy as a form of regulation, in which the state prescribed what the citizen might know. In contrast to other forms of regulation, in which the state prescribed what the citizen might do, which is the subject of countless books and several academic sub-disciplines, he found there was little little awareness of this and less analysis. But it’s worse than that. Secrecy is a form of corruption – akin to financial corruption – in which those on the inside, those in the know, exchange information without citizens being able to scrutinise or validate the information transactions. But unlike insider dealing, where, these days, people are aware that they are doing something wrong, cultures of political secrecy are shrouded in claims of the public interest, claims which (Kafka again) secrecy then renders untestable.
Moynihan says of governments and secrecy (p 206) that the culture of secrecy “is a belief system, a way of life. It can be, as it was during the Cold War, all consuming. Judgment blurs.” As Naughton says,
What we’re witnessing is the metamorphosis of our democracies into national security states in which the prerogatives of security authorities trump every other consideration and in which critical or sceptical appraisal of them is ruled out of court.
In whose interests? Not ours.
The picture at the top of the post is from Wikimedia Commons, and is used with thanks.
European Commissioner Nils Muiznieks has this to say:
“Surveillance must be in accordance with the law, serve a legitimate aim in a democratic society, and be necessary and proportionate. In other words, States cannot do whatever they want to defend national security, but must operate within strict parameters. As a minimum, three main safeguards should be provided.
First, the law must be precise and clear as to the offences, activities and people subjected to surveillance, and must set out strict limits on its duration, as well as rules on disclosure and destruction of surveillance data. Second, rigorous procedures should be in place to order the examination, use and storage of the data obtained, and those subjected to surveillance should be given a chance to exercise their right to an effective remedy. Third, the bodies supervising the use of surveillance should be independent and appointed by, and accountable to, parliament rather than the executive.”
He also points out that privacy is a fundamental human right.
“So it’s worth stepping back and remind ourselves of the scale of the spying that’s been revealed by Edward Snowden’s leaking, because it’s so extensive it’s easy to lose track of the size of the intrusion that it represents.”
This. I’m so glad to see someone else speaking out on this issue. So many people just don’t know the full extent of what’s going on.
I thought you might like to know, a nationwide protest movement has sprung up to demand the restoration of our Fourth Amendment rights:
Thanks again for speaking out.