They Believed They Were Doing No Wrong: NSA and the Snowden Documents

Note

This article first appeared in French translation in the journal Commentaire, No. 149, Spring 2015, which appeared on March 11, 2015. The translation was done by Isabelle Hausser of Commentaire. Below is the original English version, which was done as an independent research project by the author under the auspices of the International Security Program of the Harvard Kennedy School's Belfer Center for Science and International Affairs.

INTRODUCTION

I became involved with this study after attending a conference sponsored by the Association of Former Intelligence Officers (AFIO) in northern Virginia in the spring of 2014. The keynote speaker was John Hamre, a respected former civil servant who at one time had been Under Secretary of Defense. He is now president of the prominent Washington think-tank, The Center for Strategic and International Studies.

Hamre spoke with some passion about what he considered the unjust treatment of National Security Agency (NSA) and other officials by the press and by extension the public, in the wake of the Edward Snowden disclosures; whereas the reality was that they were not only doing their job but doing it in conformity with the legal authority under which they were working.

When I placed Hamre's remarks against the charges leveled by the American Civil Liberties Union (ACLU) and by journalist Glenn Greenwald, who had helped publish Snowden's collection of stolen documents, as well as by other individuals, I said to myself, somewhere between these two very discrepant points of view must lie something close to the truth. I leave it to the reader to judge whether my effort to be as objective as possible on this highly-charged issue is credible.

Additionally, I thought that, given the complexity of the subject and the confusion surrounding it, it would serve a useful purpose for the general public to become better acquainted with it. Hence another objective of this study.

At the conclusion of this research, and to summarize my bottom line, I would say that the NSA, while operating under the direction of higher authority, nevertheless had a mindset—typically American—of overdoing things and with it, a reflex of protecting the secrets of the organization. As the previous director of the NSA, Gen. Keith Alexander, was fond of putting it, "We collect everything." President Barack Obama himself acknowledged in an interview with David Remnick, that the NSA had "too much leeway to do whatever it wanted or could."

But by the same token, the President also told Remnick, "I actually feel confident that the way the NSA operates does not threaten the privacy and constitutional rights of Americans and that the laws that are in place are sound, and, because we've got three branches of government involved and a culture that has internalized that domestic spying is against the law, it actually works pretty well" (The New Yorker, January 27, 2014, p. 60).

Overall, it is ironic, that with such a toxic subject—NSA spying on Americans and non-Americans—NSA and its critics seem to have come out in the right. As the outgoing deputy head of the NSA, John Inglis, stated in an interview on National Public Radio on January 10, 2014, with Morning Edition co-host Steve Inskeep, "The accusations of misbehavior…have not been borne out…The presidential review group recently concluded that there have been no illegalities or abuses by NSA…It is not an accident that there's not been a foreign-induced terrorist attack on this nation's soil in the last 12 years." (N.B. The presidential review group was formally named the Director of National Intelligence Review Group on Intelligence and Communications Technologies.ⁱ It included Chair Michael Morell, former deputy CIA director; Richard Clarke, former counter-terrorism coordinator in the White House; Professor Geoffrey R. Stone of the University of Chicago Law School; Professor Cass R. Sunstein of Harvard Law School; and Peter Swire, President Bill Clinton's privacy director).

As Inglis further observed in the same interview, there is a need to "rebalance the balance we have struck between security, secrecy and transparency…we need to continue to move in the direction of having greater transparency about the nature of NSA… Our European counterparts say that when you try to achieve the right balance between security and privacy, you need to think in terms of necessity and proportionality…We have struck a good balance between security and the defense of civil liberties. [The] presidential review group said that as opposed to… pre-1978 there's a stark contrastⁱⁱ…we cannot run the risk of giving away all of our capabilities in the spirit of trying to make ourselves completely transparent…I don't think we can afford to give those capabilities away to our adversaries." (N.D.L.R. I should add that the interview Inglis had with Inskeep was the most important of the many sources I consulted, a list of which is contained in the Annex)....

The full text may be downloaded below.

ⁱ In response to recommendations of a bipartisan national commission formed to examine the Intelligence Community in the wake of the 9/11 attacks, Congress in December 2004 passed the Intelligence Reform and Terrorism Prevention Act (PL 108-458). The law established an Office of the Director of National Intelligence to head the intelligence community.

ⁱⁱ For mention of the Foreign Intelligence Surveillance Act of 1978, see p. 4.

Statements and views expressed in this paper are solely those of the author and do not imply endorsement by Harvard University, the Harvard Kennedy School, or the Belfer Center for Science and International Affairs.