by Luke Harding
The debate turned into one of the most impassioned for years; speakers for and against the amendment were applauded from the aisles. Leading against Amash was Mike Rogers, a former FBI agent, the chair of the House intelligence committee and a straight-talking NSA defender. ‘Have we forgotten what happened on September 11th?’ he asked. He mocked an online campaign backing Amash, and said: ‘Are we so small we can only look at how many Facebook likes we have?’ Republican Tom Cotton, speaking against the Amash proposal, declared: ‘Folks, we are at war.’
But some members opposed to warrantless surveillance invoked comparisons with colonial days. They likened the NSA’s programs to the general warrants that allowed British customs officers to search private property. This was about the most emotive charge that could be laid by an American politician. (The lawyer for Snowden’s father, Bruce Fein, made the same resonant comparison in a TV interview to those British ‘writs of assistance’.)
The debate found strange bedfellows. Ted Poe, a leading member of the Tea Party, united with liberal Zoe Lofgren, something that nearly never happens in Washington. But Nancy Pelosi, the top Democrat, whipped against the Amash amendment. Feelings were high. During the debate Rogers scowled and smacked his rolled-up papers into his empty hand like a truncheon, pacing the rows of desks. Amash was laughing – this was a career-making moment for him – and joking with colleagues.
When it came, the vote was a shock. The amendment was defeated, but only just – by a margin of 217 to 205. Few had anticipated that dissatisfaction in Congress had reached this level. It reflected a polarisation across America. The country was engaged in full-on debate. For some, it was security versus privacy. For others, it was whether Snowden was a whistleblower or a traitor. There were those who thought it mattered and those who didn’t.
For the White House, the NSA and the Office of the Director of National Intelligence the vote was a near-death experience. It was clear that something had to change. The absolutist mantra that Snowden was a ‘little traitor from Hawaii’, as Alexander put it, was no longer enough. The White House began to hint at compromise. Congressional hearings were pencilled in for the autumn; there were calls for legislative change to curb the NSA; work began to frame new bills.
In his press conference before the summer break, on 9 August, Obama made his first substantial remarks on the crisis. He laid out a strategy of greater transparency. But, crucially, he didn’t announce any restrictions on the surveillance.
Obama proposed a new panel to review intelligence policies. He also announced greater oversight of FISC, the foreign intelligence surveillance court, and the declassification of the legal rationale that underpinned the collection of phone records under section 215 of the Patriot Act.
The president acknowledged the US had ‘significant’ spying capabilities. But he said that unlike other, repressive regimes it behaved with restraint, and didn’t throw its ‘own citizens in prison for what they say online’. His reforms, he said, were designed to ensure Americans could trust US intelligence efforts and have confidence they were ‘in line with our interests and our values’.
He had a message, too, for non-Americans, a subspecies under US surveillance laws with no apparent privacy rights whatsoever. ‘To others around the world, I want to make clear once again that America is not interested in spying on ordinary people.’
All of this sounded reasonable. But sceptics wondered whether Obama meant reform or ‘reform’. In other words, a simulacrum of reform in which the NSA’s more egregious bulk surveillance practices would be allowed to carry on unhindered. In late August the new review panel was unveiled. Obama had promised a ‘high-level group of outside experts’. These ‘independent’ experts, it turned out, were virtually all former intelligence officials with close links to the Obama administration.
Civil libertarians sniffed a large rodent. The panel’s chair was Michael Morell, Obama’s former deputy CIA director; two other members included Richard Clarke, a former counter-terrorism co-ordinator under Clinton and George W Bush, and Peter Swire, Clinton’s privacy director. The panel enjoyed the lugubrious name, ‘Director of National Intelligence Review Group on Intelligence and Communications Technologies’. In it was a clue: the advisers were working out of the offices of the DNI, headed by James Clapper. The committee’s report – to be written by the end of 2013 – went to the White House.
Critics dismissed the panel as pretend transparency, and its members as White House stooges. This may have been unfair. But it was hard to tell, since the panel’s meetings were conducted in secrecy. In September it held an inaugural session with civil liberties groups including the ACLU. Another hearing followed with representatives from Facebook and other tech giants, still reeling from the PRISM disclosures.
Silicon Valley lashed out at the White House. Executives from Facebook, Google, Microsoft, Apple and Yahoo all said the Snowden revelations had been a disaster for their businesses, with their Europe- and Asia-based operations distinctly harmed. Billions of dollars had been lost. The administration needed to get a handle on the situation and do something expeditiously, the tech giants said. This conversation took place before it emerged that the NSA had hacked into Google and Yahoo’s data centres – in effect, a state cyber-raid on two major US firms.
Throughout the summer the tech companies had pumped out the same message: that the NSA was coercing them, legally, to co-operate. Any data they handed over wasn’t done voluntarily, but in response to a court-approved stick-up. A few days before their appearance at the review panel, Silicon Valley CEOs had gathered at the TechCrunch Disrupt Conference in San Francisco. The mood was mutinous. Yahoo’s Marissa Mayer said her company had to obey FISA court orders, even though it didn’t like them: ‘When you lose and don’t comply, it’s treason.’ Facebook’s Mark Zuckerberg put it succinctly. The ‘government blew it,’ he said.
During meetings with the review panel, however, the tech companies didn’t say anything about restricting NSA surveillance. Instead, some attendees suggest, the companies’ chief aim was to tell the customers a good story about how they were all protecting their data.
The news that the NSA had hacked Google and Yahoo’s data centres, however, proved a game changer. In their most concerted deed yet, the tech giants united to demand sweeping changes to US surveillance laws. In an open letter to Obama and Congress, they called for a ban on bulk data collection by spy agencies.
They wrote: ‘The balance in many countries has tipped too far in favour of the state and away from the rights of the individual – rights that are enshrined in our constitution. This undermines the freedoms we all cherish. It’s time for a change.’
The signatories were Apple, Google, Facebook, Microsoft, Yahoo, LinkedIn, Twitter and AOL. They were, naturally, acting in their own economic interests. But the firms also set out a series of five ‘reform principles’. Chief among them was that governments – the US, UK and the rest – should end suspicion-less surveillance. Instead of spying on everybody they should focus on ‘specific known users for lawful purposes’.
The Snowden revelations, Google added, were in danger of turning the internet into the ‘splinternet’. ‘The ability of data to flow or be accessed across borders is essential to a robust, 21st-century global economy,’ they argued.
In this new post-Snowden world, the NSA faced a full-blown public relations calamity. Since it was founded – appropriately enough in total secrecy – the agency had experienced four distinct epochs. The first was creation. It lasted from 1952 until 1978. The era ended with a series of reports by the Senate committee, led by Frank Church, into unforgivable domestic abuses: the FBI’s harassment of Martin Luther King, CIA assassination programs and the watch-listing of 75,000 Americans. The Church committee ushered in wide-ranging reforms. Among them was the Foreign Intelligence Surveillance Act, which established there must be court approval for foreign intelligence surveillance inside the US.
The NSA’s second era from 1978 to 2001 wa
s one of restriction, with the agency operating within Church committee parameters. What followed after 9/11 was a second unleashing: a decade in which the intelligence agencies enjoyed popular support and a boom in White House funding. This came crashing to a stop with Snowden, and the beginning of a new, uncertain fourth era. The NSA was now under the heaviest and most uncomfortable scrutiny since the 1970s.
It was also the target of some rather amusing jokes.
LOVEINT was a pun on SIGINT. This was when NSA employees used the agency’s powerful snooping tools to spy on a partner or girlfriend. NSA officials insisted the number of LOVEINT cases was small, that all the individuals involved had been fired or punished, and that most violations were self-reported. Senator Dianne Feinstein, chair of the Senate intelligence committee and the NSA’s loyal friend, said LOVEINT only happened once a year.
Still, the story was a gift to Twitter. Within hours, the hashtag ‘#NSApickuplines’ trended. The New York University media pundit Jay Rosen opened with: ‘You’re free Friday. Would you like to have dinner?’
@sickjew essayed: ‘You come here often.’
@Adonish_P continued in the same vein with: ‘I know exactly where you have been all my life.’
Perhaps the most imaginative joke came from @benwizner, who riffed off the NSA’s bulk-collection habits. He tweeted: ‘NSA walks into a bar and says, “Give me all your drinks. I need to figure out which one to order.” ’
For General Alexander this was humiliating stuff. In his eight years in charge of the world’s biggest intelligence agency, Alexander had amassed more power than any previous spy chief. His imperium included three mighty domains: the NSA, the Central Security Service and US Cyber Command – set up by the Department of Defense in 2009 to spearhead the nation’s cyber-war efforts. Officially, Alexander was known by the acronym DirNSA. His subordinates came up with other names: Emperor Alexander, or Alexander the Geek.
On first impression Alexander seems nerdy. He is diminutive, has a slight lisp, and appears preoccupied with hyper-technical detail. But he is a polished political operator, his success underpinned by targeted schmoozing. Before anyone had ever heard the name Snowden, Alexander took influential congressmen on recreational tours of the NSA. He would show them his command centre at Fort Meade, a replica of the bridge of the Starship Enterprise. Those who know him say he has a strong sense of history and his own role in it. It is a place where Great Men Do Great Deeds Against Evil.
But if Alexander and his senior leadership team had hoped for White House support in their hour of need, they were to be badly disappointed. In his August speech Obama did pay tribute to the ‘men and women of our intelligence community’. He described them as ‘patriots’ who love their country and its values. But there was no presidential visit to Fort Meade, no noisy show of solidarity before the cameras.
It was left to the NSA to defend its own surveillance activities, and to make the case that that the agency’s controversial dragnet programs were actually legal. It did so against a backdrop of rising public antagonism. (One YouTube video in which Alexander features has more than 16,000 ‘dislikes’.) In the wake of Snowden, attitudes towards the intelligence community were changing for the first time since 9/11. In July a Washington Post/ABC poll showed that 39 per cent believed it was more important to preserve privacy than to investigate terrorism; in 2002 the figure was just 18 per cent.
With the surveillance issue now so obviously toxic the Obama administration did something it was good at: it sat on the fence. Inside a defensive Puzzle Palace there was incredulity at this, mixed with peevishness. The agency, an inward-looking institution, was used to getting its own way. Serving officials were unable to speak out. But former NSA staff made no secret of the fact they felt the White House had chucked them under the bus.
‘There has been no support for the agency from the president or his staff or senior administration officials, and this has not gone unnoticed by both senior officials and the rank and file at the Fort,’ Joel Brenner, the NSA’s former inspector general, moaned in the pages of Foreign Policy, referring to the view from Fort Meade. The magazine quoted former intelligence officials who said morale inside the NSA was low. The scrutiny following Snowden’s leaks, coupled with budget cutbacks, meant that the spies were ‘hurting’, one said.
An official White House photo captures this administration–agency estrangement. In November Obama and Vice President Biden met with senior military leaders. The venue was the White House cabinet room. Obama sits in the middle, facing towards the camera, his right hand raised to make a point. At the far end of the oval table is a lonely General Alexander, framed by two oil paintings, in the seating equivalent of Siberia. The president and NSA chief may have chatted later over dinner. But if they did, no photo was ever released.
In large part, the NSA had itself to blame for this lack of a political embrace. Alexander’s early response to the Snowden leaks was bungled. He initially claimed that the NSA’s controversial domestic bulk-collection programs had stopped an impressive 54 terrorist plots, implying that these took place in the US.
Alexander’s deputy Chris Inglis subsequently conceded that only about a dozen of these plots had any connection to the US homeland. Then he said that just one of them might have been disrupted as a result of mass surveillance of Americans. (He was also ambiguous as to whether the plots were real ‘plots’; some of the citations he gave had more to do with financial transactions.)
But the biggest damage to the NSA’s case on Capitol Hill came not from Alexander but from Clapper, the overall head of the spy agencies. Clapper had given a false answer to Ron Wyden back at the Senate hearing in March. Asked if the NSA collected ‘any type of data at all on millions or hundreds of millions of Americans’, he gave an unqualified and emphatic reply: ‘No, sir. Not wittingly.’
This answer came back and bit him. Lying to Congress would be serious. After the Snowden revelations Clapper sought to finesse his reply, describing it as ‘the least untruthful answer’ possible in a public hearing. But this didn’t work: Wyden’s office had given him 24 hours’ notice of the question and an opportunity to correct the record shortly afterwards. Clapper changed his account to say he had simply forgotten about collection of domestic phone records. This erroneous testimony sparked calls for his dismissal or resignation. Clapper publicly apologised to the Senate panel – notably not to Wyden specifically – after the outcry over his prevarication spread.
Still, there were loyal supporters who defended the NSA with gusto. One was Feinstein, in charge of the agency’s oversight. On the day after Snowden revealed himself as the leaker her response was uncompromising. ‘I don’t look at this being a whistleblower. I think it’s an act of treason,’ she said. ‘He violated the oath. He violated the law.’ Feinstein denied that collecting phone records and internet communications amounted to any kind of surveillance, saying the NSA merely scooped up the kind of information found on a telephone bill.
After news that the agency had hacked Merkel’s personal mobile, however, Feinstein did a volte-face. She called for a ‘total review’ of all intelligence programs, and grumbled that her Senate intelligence committee had not been ‘satisfactorily informed’. Spying on friendly nations and prime ministers wasn’t on, she said: ‘With respect to NSA collection of intelligence on leaders of US allies – including France, Spain, Mexico and Germany – let me state unequivocally: I am totally opposed.’
Feinstein’s position was confusing, both for supporters and for critics of the NSA. On the one hand, she seemed to have flipped on an activity that had always been a part of the agency’s key mission: the collection of foreign signals intelligence. On the other, she remained an advocate of its extraordinary and novel bulk-collection programs, the very programs that had prompted Snowden to blow the whistle. It was deeply odd.
Despite this wobble Feinsten’s loyalty to the agency was never seriously in question. In the autumn of 2013 she proposed a bill to ‘reform’ the NS
A, one of several legislative initiatives. Hers was by far the most sympathetic to the agency. It suggested limited changes while basically maintaining the status quo, and in some cases even expanding its already formidable powers.
This wasn’t immediately apparent. On 31 October a dozen reporters gathered outside the closed-door session of the Senate select committee on intelligence on the second floor of the Hart Senate Office building. The suspicion was that Feinstein would deliver a whitewash – but the senator had gone rogue days before, when she criticised the NSA’s targeting of allied leaders. Nobody had seen the secret text of her proposed bill.
Half an hour after the session started, Feinstein’s press team announced her bill, the FISA Improvements Act, had been approved 11–4. It increased ‘transparency of critical intelligence programs’ and prohibited the ‘bulk collection of records’. Within minutes, however, this news unravelled. On closer examination it turned out the bill stopped the mass collection of content, something the NSA had never done in the first place. The press release was misleading. The reality was that Feinstein’s proposal amounted to an entrenchment, and even an expansion, of the NSA’s bulk surveillance powers.
Specifically, it codified that the NSA could sieve foreign phone and email communications for information on Americans. Speaking afterwards, Feinstein was unrepentant. She said that the threat from terrorist attacks had never been greater, and added: ‘I think there’s a huge misunderstanding about this NSA database program and how vital I think it is to protecting this country.’
