![Michael Corleone warned his brother-in-law not to insult his intelligence. Does the government insult ours when it defends its snooping activities? [Credit: Rotten Tomatoes]](https://i0.wp.com/www.dougsbriefcase.com/blog/wp-content/uploads/2013/08/credit-rotten-tomatoes.jpg)
Michael Corleone warned his brother-in-law not to insult his intelligence. Does the government insult ours when it defends its snooping activities? [Credit: Rotten Tomatoes]
“The federal government continues to face challenges in determining the full extent of improper payments,” GAO found. “Some agencies have not reported estimates for all risk-susceptible programs, while other agencies’ estimation methodologies were found to be not statistically valid.”
The $115 billion figure, though enormous — government’s “improper payments” are larger than the budget of every federal agency except the Defense Department — is phony. Some agencies haven’t bothered to estimate “improper payments” associated with “risk-susceptible programs” they oversee, while others have produced estimates based on faulty methodologies.
When it comes to wasteful spending, the government doesn’t know what it doesn’t know.
Which is why its collection of enormous amounts of data about us is so troubling. If government can’t accurately guess how much money it has inappropriately spent, how can it know that the information it has gathered isn’t being inappropriately used?
In a hearing last month before the Senate Judiciary Committee, witnesses from the Justice Department and government intelligence agencies defended newly-disclosed programs that involve the collection of massive amounts of information about US citizens. The Administration’s lines are by now familiar: all 3 branches of government approved the programs, they keep us safe, and the agencies have established procedures to prevent abuse.
I’ve written about the first two lines of defense elsewhere (here and here). In essence, the Fourth Amendment guarantees the right of all citizens to be “secure in their persons, houses, papers, and effects.” To seize my records, the government must show “probable cause” that I have been involved in a crime and must obtain a warrant that specifically names me and what they think I’m hiding. No court has constitutional authority to order that everyone’s records be surrendered to the government, nor can Congress constitutionally enact legislation that grants a court such sweeping power. The President and the executive branch agencies that report to him also lack that legal authority, regardless of how high-minded their objectives.
You may or may not agree. It hardly matters. The government is collecting this data anyway. What are they doing with it? Nothing but good things, if you read agency testimony.
Deputy Attorney General James Cole told the committee that the order granted by the secret Foreign Intelligence Surveillance Court (FISC) narrowly circumscribes what the government can do with the information it collects about you.
“The [FISC] order also imposes numerous other restrictions on NSA to ensure that only properly trained analysts may access the data, and that they can only access it when the reasonable, articulable suspicion predicate has been met and documented. The documentation of the analyst’s justification is important so that it can be reviewed by supervisors before the search and audited afterwards to ensure compliance.”
John Inglis of the NSA made a similar point.
“Under rules approved by the court, only 22 people at NSA are allowed to approve the selectors used to initiate a search in this data base; all queries are audited; only seven positions at NSA (a total of 11 people) are authorized to release query results that are believed to be associated with persons in the US.”
The government’s witnesses are arguing that if you don’t trust them, you should trust the FISC. Its orders allow only a handful of “properly trained analysts” access to our data and requires “audits” of every query. Not to worry.
About those “properly trained analysts.” How is it that a 29-year-old high school dropout with the resume of a meth dealer not only gained the clearances necessary to access secret information but also made a mockery of the procedural restrictions on which the government asks us to rely?
“The actions of one contractor should not tarnish all the contractors because they do great work for our nation,” Inglis said in his prepared statement.
Inglis is being evasive. To my knowledge, no one has alleged that “all the contractors” are as untrustworthy as James Snowden. Nor has anyone said that all agency employees with clearances are unscrupulous.
In suggesting that no one but Snowden has made inappropriate use of our data, it is Inglis who is making the unsupportable claim. The claim is similar to OMB’s estimate that the government made “only” $115 billion in improper payments in 2011. Just as the government doesn’t really know how much money it is wasting, the NSA and its sister agencies don’t know who is doing what with its massive data trove.
The President, too, has asked us to trust that agency policies render abuse of our data impossible. “What you’re hearing about is the prospect that these could be abused,” he said during his Friday press conference in which he announced an initiative designed to boost public trust in government snooping activities. “Now, part of the reason they’re not abused is because these checks are in place, and those abuses would be against the law and would be against the orders of the FISC.”
The President and his team cite court orders and agency procedural manuals, but people like James Snowden aren’t deterred by those orders and procedures. They know they’re violating agency policy when they act. They know how to circumvent restrictions. And they know how to get away with it without their bosses catching on. Snowden is not unique.
James Clapper, Director of National Intelligence, repeated the official line in his recent letter to Senator Ron Wyden (D‑OR). Acknowledging that “there have been a number of compliance problems” with agency procedures, he flatly asserted that “there have been no findings of any intentional or bad-faith violations.” Mistakes were made, Clapper acknowledged, but those mistakes were invariably due to “human error or highly sophisticated technology issues.”
Technology is complicated. People make mistakes. But no one ever has (and, presumably, ever will) deliberately violate agency procedures to improperly access or use the data.
Dr. Clapper is either a very naïve man or, as Michael Corleone might say, he “insults our intelligence.” Neither he nor his colleagues caught on to what James Snowden was up to until after he’d given secret information to newspaper reporters. He violated agency procedures and got away with it.
They still may not just how much information he stole. On the morning of the hearing, the Guardian published yet another article about yet another heretofore secret program called XKeyScore which “allows analysts to search with no prior authorization through vast databases containing emails, online chats and the browsing histories of millions of individuals.”
Its source: James Snowden, who helpfully provided PowerPoint presentations prepared by the agency describing the program. “XKeyscore provides the technological capability, if not the legal authority, to target even US persons for extensive electronic surveillance without a warrant provided that some identifying information, such as their email or IP address, is known to the analyst,” the Guardian reported.
Technology enables massive government intrusion into our lives. Agency policy prohibits abuse but can’t prevent it, any more than agency regulations can prevent government waste.
Government forever asserts its competence. It asks us to believe that our money is prudently spent, that its revamp of the health care system will make us healthier and more secure, that its social welfare programs are well-designed and fiscally sound, that it can collect our phone data, emails, social media interactions and other personal information without compromising our privacy or curtailing our liberties. We are to believe that its innumerable regulations guarantee that its good intentions produce only good results.
Government’s track record hardly inspires confidence. Trust in its competence is almost always misplaced, especially when it strays beyond its constitutional bounds.
The President should bear this in mind as he seeks to “make the American people more comfortable” with government surveillance programs.