As Americans learn about Foreign Intelligence Security Act abuses and the misuse of national security data for political purposes—executed by contractors until then NSA Director Admiral Rogers learned of it and halted the program, they are justly disturbed. Elements in our government were spying on a presidential campaign and on the Trump White House itself.
While the deadly battle to uncover, or to obfuscate, events around the 2016 election plays out, many Americans are starting to ask a deeper question.
Has our massive, complex national security apparatus made us less secure as a nation? Has it, in fact, become a danger to our republic?
It’s not a question to ask or answer lightly. But consider this single statistic: according to the NSA’s official report, in 2018 the number of warrantless searches of US citizens’ email and phone data spiked 28 percent to the equivalent of roughly 4 percent of the total U.S. adult population (estimate based on 2010 census age demographics). Note that these were only the searches conducted without a court-issued warrant.
We want to keep our country safe. But to do that we need those we entrust with great and secret power to be both effective and accountable in their actions.
Two personal anecdotes from the periphery of the intelligence community hint at some of the issues.
Don’t Say That
I was sitting across the table from a man who’d spent his career in and around the intelligence community: in an operational agency, on Capitol Hill, in the Beltway contractors. I was there to see whether and how the new team I was forming might bring some advanced tech to support his current organization’s work.
It was during the early, get-to-know-one-another chit chat stage that I said something along the lines of “I know the U.S. isn’t perfect, but it’s definitely better than the alternatives.”
While I said it, I was thinking of my grandmother, most of whose family were intentionally starved to death in Stalin’s genocidal Holodomor for the offense of wanting to keep the small family farm they had built with hard work over a generation.
I was thinking of her sons, who fought the Nazis and Japanese Fascists and in several cases came home with heroes’ medals and deep war wounds. Of my cousins and close relatives who served in uniform, or built small businesses, and raised families, and were grateful for the freedom that hadn’t come to them cost-free. Of the multiethnic, multiracial family that grew here. Of a Latina in-law whose family knew firsthand what corruption and violence looked like to the south of us. Of black and Asian colleagues who held respected professional positions.
Above all, I was thinking of what the Founders gave us: a republic, capable of improving over time with continuity instead of revolution. A republic, if we could keep it.
The immediate response of this member of the extended Intelligence Community was sharp. “Don’t say that. Don’t say we’re better. Just say it’s ours.”
No One Else’s Judgement But My Own
Later that year I was in the office of a woman who had led an information gathering mission in a foreign country on a politically sensitive issue that gained some notoriety. I knew a bit about the information sharing and analysis thrusts that IARPA (Intelligence Advanced Research Project Activity), the intel community’s equivalent of the Defense Advanced Research Projects Agency, had underway. Her agency was one of several struggling to deal with an explosion of digital data: not only email, phone intercepts, and the Dark Web, but also sensor data from a variety of platforms that needed to be interpreted to be understood.
How, I asked her, might a digital assistant that she controlled and shaped help her with her own analyses? How, as an analogy, might she work with a junior human assistant? What sorts of information collecting might she delegate, and how would she verify that her assistant’s work was sound?
Again, the answer was sharp and quick. “I wouldn’t. I don’t trust anyone else’s judgment but my own.”
Now, to be sure, she was one of the agency’s top people in her specialty. But the world was changing fast, and tech was both a cause and a new source of information regarding it. I knew from other work I’d done that she probably wasn’t accessing some important new clues. And that meant confirmation bias, always a danger, was even more likely to be cemented in place.
Put Them Together and What Have You Got?
When you believe there is a principles-based republic for which you are working and which is worth defending for reasons much larger than your own interests, those principles constrain your actions. And when your work is covert, and you use or influence powerful national security mechanisms, constraint is an important safeguard against tyranny and corruption. It is, in fact, a key part of your work.
When you acknowledge the limits of your own knowledge, rapid change in an area where you have hard-won expertise, and a flood of information (trustworthy, ambiguous, and sometimes intentionally deceitful), you actively seek to avoid missing key factors as a result of longstanding filters. You listen for different perspectives even—no, especially—when they challenge yours deeply.
Fortunately, there are many men and women in our intelligence community who do just that. But as we are learning, there are some who do not constrain themselves for the sake of the republic in their use of powerful covert mechanisms. And there are some who justify their illegal and unethical behavior on the grounds that they know better than American voters.
But it’s no secret that our national security apparatus is in major need of an overhaul at a time of rapid geopolitical and technology-driven change. And current events have upped the stakes.
From its origins in World War II and the early days of the Cold War, U.S. national security agencies have multiplied in number, scope, and activity. And yet we’ve had major, damaging intel scandals and failures. Scandals like the range of illegal and unauthorized activities led by the CIA, NSA, FBI and IRS that led to the Church Committee investigation in the Senate and the related Pike Committee investigation in the House and the presidential Rockefeller Commission investigation into CIA activities within the United States, all in 1975. And then there were failures like the attacks of 9/11.
In 1997 Gen. William Odom proposed changes to our national security apparatus that were later published as Fixing Intelligence For A More Secure America. Odom, who was head of the National Security Agency under President Reagan, was a firm advocate of the post-World War II liberal order and international institutions that he believed were the foundation of America’s prosperity and security. A fierce critic of the Iraq war, Odom saw the United States as having an inadvertent but beneficial empire facilitated by institutions such as NATO and the United Nations.
Odom’s reform proposals reflected his experience as an Army general and at NSA. He detested the CIA, wanted to simplify the multitude of intel agencies to one each per type of source (HUMINT, SIGINT, etc.), dissolving individual military and other agencies, and pushed to create a director of national intelligence separate from the director of the CIA.
After 9/11, Odom sharply criticized warrantless capture of U.S. citizen calls to and from overseas locations.
Odom’s fundamental orientation to and support for the post-World War II international liberal order was not unique. On the contrary, it has been the orientation of most of our intel, military, and political leaders for decades. We shouldn’t be surprised, therefore, when he asserts that liberal institutions domestically and internationally are prior to democracy, which they support but do not emerge from.
Flawed By Design?
But what if the intelligence apparatus and management structures intended to support the classical liberal order are inherently flawed? That’s what Amy Zegart explored in her Stanford Ph.D. dissertation and 1999 book Flawed By Design: The Evolution of the CIA, JCS, and NSC.
Zegart chronicles the political infighting and jostling that led to the creation of the Joint Chiefs of Staff and the National Security Council as well as the Central Intelligence Agency. A major theme in her work is how cultures from the different uniformed services and the OSS shaped the intel agencies that emerged. Those cultures, along with turf battles, quickly became entrenched and self-reinforcing.
Writing after the fall of the Soviet Union and during a presidential administration that believed that fall meant substantial resources could be shifted to various domestic federal programs, Zegart contrasted domestic agency cultures of the time with those in the national security agencies. The former she characterized as having strong interest groups, open information, legislative domain, and unconnected bureaucracies. The latter have weak interest groups, secrecy, executive branch domain, and connected bureaucracies even as they fought turf battles. The national security agencies are, therefore, inherently much more difficult to reform as a result. Indeed, she said, the lack of domestic constituencies invested in how the national security apparatus is organized means no president should waste political capital in the attempt.
Then 9/11 Happened
What was deeply problematic by the late 1990s became an urgent issue after the attacks of 9/11, the first major attack on the continental United States in over a century.
Several decisions around 9/11 blurred notional boundaries between the foreign/spying/covert operations mission of the intelligence agencies and law enforcement here at home. An understandable reluctance to demonize Muslims and immigrants morphed, with intention on the part of some advocates, into a reluctance to confront an ideology that is aggressively opposed to the founding principles of our constitutional republic. Instead, a bipolar response emerged: treat terrorism as a domestic crime at home and a military issue abroad.
The USA Patriot Act was instrumental in giving domestic counterterrorism efforts the tools they needed to uncover, track, and intercept terrorist networks at work within the country. But it also meant giving the FBI the ability to use National Security Letters to search emails, phone records, and other information of U.S. citizens without a court order, and more broadly empowered law enforcement officials to search a wide variety of personal information, businesses, and even homes without the knowledge of the people involved.
Remember Zegart’s focus on institutional culture? Those powers were given to an FBI long shaped by a “do what it takes” culture firmly nurtured by J. Edgar Hoover. Is it any surprise, then, that we see recent federal court cases dismissed with prejudice because the FBI and Department of Justice withheld exculpatory evidence from U.S. citizen defendants, including what the judge in the Bundy case called “flagrant federal misconduct”?
We will learn more over the coming several months about FBI and intel community abuses around and after the 2016 presidential campaign. The evidence so far suggests a national crisis bigger than the 19th century’s Civil War. It’s a crisis that goes not only to the heart of accountability of the federal government to constitutional principles but also to the stakes in an age of ubiquitous electronic surveillance, terrorism threats with links to the international drug networks, and the dying post-World War II liberal order and institutions.
It’s a dangerous world and it will become more so for at least a while. We deeply need effective, accountable national security agencies. How we get them, and what that looks like, should be a concern for us all.
Photo Credit: Eric Baradat/AFP/Getty Images