----- Forwarded message from nettime's_chronicler -----
Date: Fri, 13 Sep 2013 17:15:26 -0100
From: nettime's_chronicler
To: nettime-l@kein.org
Subject: <nettime> Yochai Benkler: Time to tame the NSA behemoth
Reply-To: a moderated mailing list for net criticism
http://www.theguardian.com/commentisfree/2013/sep/13/nsa-behemoth-trampling-...
Time to tame the NSA behemoth trampling our rights
From leaks and Fisa court papers, it's clear the NSA is a bloated
spying bureaucracy out of control. It can't be reformed by insiders
Yochai Benkler
The spate of new NSA disclosures substantially raises the stakes of
this debate. We now know that the intelligence establishment
systematically undermines oversight by lying to both Congress and
the courts. We know that the NSA infiltrates internet
standard-setting processes to security protocols that make
surveillance harder. We know that the NSA uses persuasion,
subterfuge, and legal coercion to distort software and hardware
product design by commercial companies.
We have learned that in pursuit of its bureaucratic mission to obtain
signals intelligence in a pervasively networked world, the NSA has
mounted a systematic campaign against the foundations of American
power: constitutional checks and balances, technological leadership,
and market entrepreneurship. The NSA scandal is no longer about
privacy, or a particular violation of constitutional or legislative
obligations. The American body politic is suffering a severe case of
auto-immune disease: our defense system is attacking other critical
systems of our body.
First, the lying. The National Intelligence University, based in
Washington, DC, offers a certificate program called the denial and
deception advanced studies program. That's not a farcical sci-fi
dystopia; it's a real program about countering denial and deception by
other countries. The repeated misrepresentations suggest that the
intelligence establishment has come to see its civilian bosses as
adversaries to be managed through denial and deception.
We learned months ago that the Director of National Intelligence
James Clapper lied under oath to Congress. Now, we know that
General Keith Alexander filed a "declaration" (which is like testifying
in writing), asserting an interpretation of violations that the court
said "strains credulity". The newly-disclosed 2009 opinion includes a
whole section entitled "Misrepresentations to the Court", which
begins with the sentence:
The government has compounded its noncompliance with the court's
orders by repeatedly submitting inaccurate descriptions of the alert
list process to the FISC.
General Alexander's claim that the NSA's vast numbers of violations
were the consequences of error and incompetence receive derisive
attention. But this claim itself was in a court submission intended to
exculpate the agency from what would otherwise have been an intentional
violation of the court's order. There is absolutely no reason to
believe the claims of incompetence and honest error; there is more
reason to assume that these are intended to cover up a worse truth:
intentional violations.
Second, the subversion. Last week, we learned that the NSA's strategy
to enhance its surveillance capabilities was to weaken internet
security in general. The NSA infiltrated the social-professional
standard-setting organizations on which the whole internet relies, from
National Institute of Standards and Technology to the Internet
Engineering Task Force itself, the very institutional foundation of the
internet, to weaken the security standards. Moreover, the NSA combined
persuasion and legal coercion to compromise the commercial systems and
standards that offer the most basic security systems on which the
entire internet runs. The NSA undermined the security of the SSL
standard critical to online banking and shopping, VPN products central
to secure corporate, research, and healthcare provider networks, and
basic email utilities.
Serious people with grave expressions will argue that if we do not
ruthlessly expand our intelligence capabilities, we will suffer
terrorism and defeat. Whatever minor tweaks may be necessary, the
argument goes, the core of the operation is absolutely necessary and
people will die if we falter. But the question remains: how much of
what we have is really necessary and effective, and how much is
bureaucratic bloat resulting in the all-to-familiar dynamics of
organizational self-aggrandizement and expansionism?
The "serious people" are appealing to our faith that national security
is critical, in order to demand that we accept the particular
organization of the Intelligence Church. Demand for blind faith
adherence is unacceptable.
What did we actually know about what we got in exchange for undermining
internet security, technology markets, internet social capital, and the
American constitutional order? The intelligence establishment grew by
billions of dollars; thousands of employees; and power within the
executive. And we the people? Not so much. Court documents released
this week show that after its first three years of operation, the best
the intelligence establishment could show the judge overseeing the
program was that it had led to opening "three new preliminary
investigations". This showing, noted Judge Walton in his opinion, "does
not seem very significant".
If this was the best the intelligence community could put on the table
when it faced the risk of judicial sanction, we can assume that all the
hand-waving without hard, observable, testable facts is magician's
patter, aimed to protect the fruits of a decade's worth of bureaucratic
expansionism. Claims that secrecy prevents the priesthood from
presenting such testable proof appeal to a doctrine of occult
infallibility that we cannot afford to accept.
In August, 205 members of the House voted in favor of the
Amash-Conyers Amendment that would have rewritten Section 215 of the
Patriot Act, the section used to justify bulk collection of domestic
phone call metadata. At the time, this was a critically important move
that was highly targeted at a narrow and specific abuse. But the
breadth and depth of organizational deception and subversion force us
to recognize that we need reconstruction that goes much deeper than any
specific legislative fix.
We need a fundamental organizational reform. The so-called "outside
independent experts" committee which the president has appointed, with
insiders' insiders like Michael Morell and Richard Clarke, will not
come close to doing the trick. Nor is it likely to allay anyone's fears
who is not already an Intelligence Church adherent.
Given the persistent lying and strategic errors of judgment that this
week's revelations disclosed, the NSA needs to be put into
receivership. Insiders, beginning at the very top, need to be removed
and excluded from the restructuring process. Their expertise led to
this mess, and would be a hindrance, not a help, in cleaning it up. We
need a forceful, truly independent outsider, with strong, direct
congressional support, who would recruit former insider-dissenters like
Thomas Drake or William Binney to reveal where the bodies are buried.
Anything short of root-and-branch reconstruction will be serving weak
tea to a patient with a debilitating auto-immune disease.
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