The NSA Operations Center in 2012. Credit: Wiki Commons.

So much has been written and said recently about the National Security Agency (NSA) monitoring of cellphone calls, emails, and other internet communications that a great deal of misinformation has clouded proper understanding. Some of this is chatter from people following the news but a great deal consists of statements by officials desperately defending their intrusive monitoring, either obfuscating the issue or invoking terrorism to rescue themselves from very serious charges of illegality. Officials continue to cloak the true dimensions of their activity behind a wall of secrecy, even as President Obama earnestly says Americans should be having a debate about these eavesdropping programs. It is past time to inject more clarity into this “debate.” Absent the NSA and other authorities declassifying sufficient information on which to have a realistic debate, this piece seeks to deconstruct a number of the claims that have been made regarding the NSA eavesdropping. It is formatted as a series of propositions followed by commentary on each one.

No one should worry because the NSA only collects metadata. The types of information collected are said to include the times and dates of phonecalls, volume and duration, phone numbers, and location of originating and destination points. These are called “metadata.” Citizens are supposed to be reassured that no one is listening in. Functionally speaking such items can be called the “externals” surrounding message content. In two world wars and many other conflicts the external elements of communications formed the basis for “traffic analysis,” which has been viewed as the glue that held together radio intelligence when codebreakers were not actually decrypting message content. In World War II, Korea, Vietnam, and elsewhere, traffic analysis identified superiors and subordinates, chains of command, movements to concentrate, and more. A key purpose of traffic analysis was to discover targets. The enemies then were nation states, but the target set of NSA eavesdropping today has expanded to include citizens. That citizens are targets ought to worry every individual, especially since the explicitly-stated purpose of the spying is to protect them.

The spooks have long possessed defenses against traffic analysis. The term of art is “communications security” or comsec. This starts with staying off the radio, or phone, and progresses through the use of voice codes, sophisticated scrambling or encryption systems, frequency-alternating devices, and the like. The latest is the blind email deposit box. Save for the first and last-named techniques, these alternatives are available primarily to states, hardly to citizens. Al Qaeda learned comsec very early. After about mid-2003 electronic monitoring became increasingly ineffective against them. Bin Laden is known to have maintained telephone silence for years. Traffic analysis offered some potential over a longer period—and no doubt this is a reason why the United States became so enamored of the eavesdropping. But the terrorist enemy has been worn down while the metadata vacuuming continues at an even higher rate, against individual citizens who have no protection.

President Obama has said no one’s reading my mail. Once the citizen is identified as a target the authorities do have the legal means to go beyond metadata and intrude on actual content, by applying standard FISA procedures. The Foreign Intelligence Surveillance Court (FISC) issues a warrant and then the common carriers—the internet and phone companies—furnish the NSA with content, written and audio-visual. The latest revelations in the NSA scandal show that even comsec does not work—Microsoft provided the agency with pre-encrypted materials (what the codebreakers call “clear text”) even for its chat rooms and message systems that have encryption features, as well as access to cloud storage systems with millions of users. The greater danger to the citizen is not terrorism as probable cause before the Court but the additional rationale written into the law, covering suspicion of any criminal activity. The criminal activity provision suspends protections in the protocols that might otherwise shield American citizens. Suspicion of criminal activity opens a huge spectrum since it involves federal law, from immigration to tax evasion, from violations of fair housing, employment or sports statutes to suspected leaking of classified information.

Foreign nationals have no protections whatever. So long as one side of a communication is abroad—and these identifications are subjective ones made by NSA analysts or software—protections for citizens at the U.S. end of the link are terminated. Given what we have learned about the protocols in place for selecting persons for intensive surveillance, all a real terrorist has to do to ensure a citizen is placed under suspicion is to communicate with them. Had Osama bin Laden telephoned Barack Obama—even to offer his surrender—that would have put Mr. Obama in danger of going under the NSA’s microscope.

In the wake of passage of the Patriot Act—also intended to combat terrorism after 9/11—it became clear that the vast majority of legal proceedings instituted as a result of the powers conveyed in the name of national security were prosecutions for immigration violations or ordinary criminal activity. In their efforts to show the NSA surveillance has been an indispensable tool against terrorism government officials have repeatedly dropped numbers into the debate—two cases, then thirty, currently fifty-three—plots allegedly disrupted. The truth is that “indispensable” is the operative phrase. In none of the cases so far has it been shown the culprits could not have been caught employing standard intelligence and police methods. Much more likely is that prosecutions of those identified in NSA surveillance will mirror indictments brought under the Patriot Act. If most persons uncovered by NSA surveillance were guys who tried to give fifty bucks to their favorite group, or played at “terrorist training” in the woods, is that worth abridging the rights of millions of citizens?

We always assumed Big Brother was watching so there’s no need to worry. A key purpose of law is to prevent the state from trampling the rights of citizens. Here the state has the capability to spy and the citizen has no protection. That Big Brother is watching does not make it right—or legal. The assumption that government will eavesdrop anyway is simply an excuse to avoid the debate which has become so crucial. The fact is that the Fourth Amendment to the Constitution ensures the privacy of the individual in person, property, and effects. The cellphone/notebook/laptop/pc and their contents are personal effects. The surveillance program which targets externals and leads to the surveillance of effects is a plain violation of the Constitution no matter what the excuse. The existence of case law that holds a person has no reasonable expectation of privacy in communications externals—or as quaintly phrased in the Patriot Act, “business records”—merely reflects the history that relevant cases were decided before eavesdropping techniques became as sophisticated as they now are. Individuals cannot even be recognized as standing before the courts to bring suit against these practices, and Government is the only party in actions at the FISC, whose proceedings and decisions are secret. Scarier still, the accumulated NSA database and more intrusive “take” will be used as tools of investigations aimed at ordinary people. The NSA database amounts to a buzz saw hanging over the heads of citizens. This entire framework is a violation of democratic principles. It needs to become part of the debate.

The Surveillance is properly accountable because all three branches of government approved it. This argument is false. Only the Executive branch conceived and approved the NSA surveillance. Not only was it conducted for several years without reference to the FISC, which had the statutory authority to review all applications for such surveillance, the Executive merely briefed Congress on the surveillance. Notification does not equate to approval. The degree of congressional involvement that the Executive accorded did not permit oversight in any meaningful way. The Executive then went to Congress late in the second Bush administration and obtained amendments to the Patriot and Foreign Surveillance Acts, providing misleading justifications and then immediately interpreting its powers expansively. Only under that rubric did the Executive approach the FISC where it obtained a legal review that was again given a maximalist interpretation. The existing framework for congressional oversight and legal review was gamed, intelligence officials misled and outright lied before Congress, and the Executive now argues that participation by the three branches of government establishes a solid base of legality.

Allies the NSA monitored are talking out of both sides of their mouths because allies spy on each other all the time. This argument is one more instance of obfuscation in the NSA scandal. Nations, including allies, do spy on each other all the time. No question. But the contention here is misleading in two ways. First, allies hope to be handled more delicately than enemies. The NSA surveillance, by aiming at communications mechanisms, automatically focuses on those countries with the most developed communications infrastructures, which include America’s closest allies and many of our best friends. This is especially pernicious in that some of these same allies are our closest collaborators in the war on terror. Their cooperation is essential. Anything that weakens those ties is a negative, not a positive value.

Second—and equally, if not more important—spying on allies is traditionally done in service of national objectives. A present flap over whether the NSA had the goal of penetrating European strategies for trade talks currently in progress is an example of old style spying. But the NSA’s eavesdropping, which aims at individuals and uses targeting priorities that focus on foreign nationals, goes far beyond the old style spying. Moreover, so far as we now know, the strictures against the NSA reading content, as opposed to vacuuming metadata, do not apply to foreign nationals. Millions of citizens in friendly lands are now personal quarry of NSA eavesdropping. The outpouring of protest in Germany, in France, in Latin America against the U.S. surveillance has much to do with this sense of personal violation.

Finally, the Obama administration’s hamfisted pressure on various countries to get its hands on Edward Snowden are extracting another cost. This began as an attempt to stem the tide of leaks, segued into a gambit to divert attention from the substance of the scandal by making the leaker the issue, and has now become an embarrassment. The foreign minister of Ecuador no doubt spoke tongue in cheek when he offered the United States a $25 million grant for human rights training but he was on to something. Nations in Europe and elsewhere have more stringent privacy, human rights and personal protections than the United States. It is foolish to expect that political leaders in those lands might hold back their condemnations because allies spy on each other, or because their intelligence services monitor the internet too, or because they hope for trade agreements. Especially because in the United States, with its vaunted Constitution, the eavesdroppers so cynically gamed the system. The NSA scandal is fast becoming the most serious diplomatic disaster in recent American history. For a host of reasons the surveillance needs to stop right now.