It is inevitable that every time there is an incident that can be attributed to terrorism, no matter what the circumstances, the cry will go up to unleash the police and intelligence services lest there be a recurrence of the event. The Boston Marathon bombing has consequently produced calls for “total Internet surveillance” by the Federal Bureau of Investigation and the National Security Agency, which would basically permit the government to compel Internet service providers and social networks to incorporate backdoor technologies that would enable the government to monitor all transmissions in real time.
The proposed Internet regime would basically work in perverse free-market fashion by putting the onus on the providers of the services rather than on the government. Companies like Google and Facebook would be required to create and maintain access points in the software that would permit the FBI and NSA to enter their sites, without any obstruction from passwords or other security features, to access communications by targeted individuals and groups. If the providers failed to create the necessary framework, they would be subject to fines starting at $25,000 per day.
From the corporate point of view, many companies do not have the technical ability to spy on their customers as a deliberate policy for privacy reasons, so they would have to create the new system from scratch. Smaller providers might not have the resources to do so, and there would also be a problem with foreign companies operating in the U.S., since countries like China and Russia (or even Iran) could demand reciprocity and seek access to information stored by American providers. The government insists that the legal framework for the intrusion already exists in laws that provide law enforcement access to telephone services, claiming that access to digital media is only an expansion of the existing authority to include new technologies. It claims that it would only act if authorized by a court order, though similar claims relating to the PATRIOT Act’s National Security Letters have proven to be rarely honored in practice. If law enforcement has a new tool, it will use it.
But what is being ignored in the debate is the broader issue of the government’s ability to respond effectively to an enormous mass of new information given the fact that it has repeatedly demonstrated that it is incapable of doing so. Tamerlan Tsarnaev was identified by the Russians as a possible militant, and the information was shared with Washington to no effect. The CIA placed him on a watch list but the Department of Homeland Security ignored the warning. All of which means that little has changed since 2001. The 9/11 report, though largely a whitewash, revealed that before the al-Qaeda terrorist attack, the authorities had information that they failed to connect that might have revealed the plot. They blamed it on turf protection and poor communications across the intelligence and law enforcement communities. Their solution was to recommend the creation of a director of national intelligence, yet another layer of management.
Amy B. Zegart, in her book Spying Blind, details 23 specific opportunities to connect information and disrupt the 9/11 conspiracy. She explains that the inability to do so was an institutional crisis, as both the CIA and FBI failed as organizations because they could not adapt to the changing circumstances brought about through the rise of terrorism as the principal international challenge of the 1990s. She writes, “Organization matters. The structures, cultures, and incentives of U.S. intelligence agencies critically influence what they do and how well they do it.” Government agencies characteristically perform poorly because they do not operate in a free market and have no competition or bottom line, a problem compounded by the impact of poor decision-making by senior agency managers who, similarly, have no built-in checks and balances on their deliberations and therefore have no constituency to answer to in a system that affords little or no accountability.
And there is no indication that the markedly bigger and better-funded CIA and FBI have improved their ability to use available information more effectively since 2001. The FBI computer system required 11 years to upgrade, while the CIA analysis branch is more focused on finding drone targets than it is on penetrating terrorist plots.
This dysfunction in the police and intelligence services is largely due to the one particular pathology intrinsic to “the American way,” the desire to make judgments through measuring or quantifying, the belief that more will always ultimately prove to be better. It drove Jay Gatsby, who rationalized that “It eluded us then, but that’s no matter—tomorrow we will run faster, stretch out our arms farther…. And then one fine morning…,” and it drives the belief that if more soldiers are sent to Vietnam or more money is given to Hamid Karzai, somehow a vindicating result will be achieved. After 9/11, the White House threw lots of money at the terrorism problem. At CIA headquarters, newly hired intelligence analysts quickly realized that they had to write more rather than better reports, particularly if the greater quantity of reports reflected the prevailing view of the White House. Strategic analysis, which takes more time to do, requires more expertise, and does not tell the White House what is going to happen tomorrow, became a lost art. Observing the process, Carl Ford, a senior Agency analyst, described it: “As long as we rate intelligence more for its volume than its quality, we will continue to turn out the $40 billion pile of crap that we have become famous for.”
Well, the $40 billion pile of crap has now become a $200 billion pile of crap, if one counts the work of all the players in the intelligence and law enforcement community. It has morphed into a numbers game in which more almost necessarily means less, since no one can possibly penetrate or begin to understand what is being produced. One million government officials have top-secret clearances. Every day, the U.S. government classifies millions of pieces of paper and data transmissions. The analysts in the intelligence community alone produce 50,000 reports annually on terrorism and related subjects, nearly a thousand a week. Few read them. The NSA intercepts an estimated 1.7 billion phone calls and other communications daily in the United States alone and stores them in a vast database that contains 20 million “transactions” relating to American citizens for future use. Everything produced by the NSA, the CIA, and the 14 other members of the intelligence community is classified, as is most of the material produced by the Defense Department and FBI. Going down the food chain, state and local police and Homeland Security departments add to the deluge of material that is restricted and not for public consumption.
Former FBI Agent Colleen Rowley calls the intelligence explosion “adding to the haystack” in a system in which no one can make sense of the ocean of information. So, accepting that no bureaucracy can digest what already is being produced to counter the terrorist threat, the demand for still more information from social networks is baffling and will quite likely produce still more inertia and ultimately no good result. So why do it at all? FBI Director Robert Mueller explains that the new requirement is needed to shut down the dreaded “going dark” on Bureau ability to access vital information from increasingly Internet-based sources. He has not sought to make the case that this access would have changed anything in terms of the Tsarnaev brothers because such a case cannot easily be made based on the material that has been made public. And the adverse tradeoff for those concerned about the Fourth Amendment to the Constitution is that the government will close the circle and have the ability to access all forms of communication by citizens and resident aliens without any genuine judicial oversight. The FBI has abused its investigative authority in the past, and, even if the rules change, the sole authority for permitting the searches would be the Foreign Intelligence Surveillance Court. This court approved 100% of 1,856 applications it received in 2012 based on the federal government’s assertion, frequently without any evidence, that national security was involved.
It would be interesting to learn whether the 1,856 foreign intelligence surveillance applications approved last year and the estimated 40,000 national security letters that were issued produced any information that actually made the United States a safer place, but, alas, such information is likely not compiled, and even if it were, it would surely be classified. Ultimately, information is a commodity, in this case generated with severe collateral damage to privacy rights, and there is no indication that the United States government, consisting of competing intelligence and law enforcement fiefdoms, has learned to use it effectively.
