Tag: NSA

The Black Budget, a Sense of Magnitudes

On October 28th, I wrote a blog post, “The NSA’s Rent Is Too Damn High,” in which I looked at the $52.6 billion price tag for America’s spook infrastructure – the so-called “black budget.” When allocated across every American taxpayer, this staggering sum comes out to $574 per taxpayer, per year.

But, there are other edifying ways of gaining perspective on such a whopping amount of money. Doing so is important. Indeed, according to John Maynard Keynes’ biographer, Lord Skidelsky, Keynes believed that a good economist must always have “a sense of magnitudes.”

We can get a sense of magnitudes by looking at this year’s black budget as a portion of the major sources of the federal government’s revenues. The table below tells that tale:

Source of Federal Revenue 2012 Amount $ Billion Black Budget $ Billion Black Budget as % of Revenue Source
Individual Income Taxes $1,132.21 $52.60 4.6%
Corporate Income Taxes $242.29 $52.60 21.7%
Social Insurance Taxes $845.31 $52.60 6.2%
Excise Taxes $79.06 $52.60 66.5%
Estate and Gift Taxes $13.97 $52.60 376.4%
Customs Duties $30.31 $52.60 173.6%
Miscellaneous Receipts $107.01 $52.60 49.2%
Deficit (Borrowing) $1,086.96 $52.60 4.8%
     Source: Congressional Budget Office

The NSA’s Rent Is Too Damn High

For months, the American public has received a steady stream of new information detailing the massive scale and scope of the United States’ spying activities. Of course, maintaining a surveillance state powerful enough to reach into the inboxes of world leaders, friend and foe, is not cheap. Indeed, as the Washington Post revealed when it released portions of the so-called Black Budget, this year’s price tag on America’s spook infrastructure comes out to a whopping $52.6 billion.

This is, of course, a tremendous sum – more than double the size of the Department of Agriculture, more than triple the size of NASA; the list goes on… But, what really puts this number into perspective is its average cost to each American taxpayer, or what I would call the NSA and associated agencies’ “rent.”

Yes, the NSA’s rent, charged to every taxpayer living under its web of surveillance, comes out to an exorbitant $574 per year. If this is the price the federal government is charging American taxpayers to have their own privacy invaded, then I say the NSA’s rent is too damn high.

Normally, at the end of one of these blogs, I would ask a rhetorical question like: “Washington, are you listening?” But, in this case, we know Washington is listening, and now we know how much we’re being charged for it.

The Defense of NSA Spying that Wasn’t

In an interview with CNN yesterday, outgoing FBI director Robert Mueller offered up words one could characterize as defending mass surveillance of all Americans’ phone calling. Indeed his interview has been portrayed as a defense of such spying, with outlets like NRO’s “The Corner” reporting “Outgoing FBI Chief: ‘Good Chance’ NSA Would Have Prevented ‘Part’ of 9/11.” But Director Mueller spoke much more equivocally than that.

Here’s what he actually said.

CNN: If we had the kind of intelligence that we were collecting through the NSA before September 11th, the kind of intelligence collection that we have now, do you think 9/11 would have been prevented?

MUELLER: I think there’s a good chance we would have prevented at least a part of 9/11. In other words, there were four planes. There were almost 20 — 19 persons involved. I think we would have had a much better chance of identifying those individuals who were contemplating that attack.

CNN: By this mass collection of information?

MUELLER: By the various programs that have been put in place since then. … It’s both the programs (under the Patriot Act) but also the ability to share the information that has made such dramatic change in our ability to identify and stop plots.

Mueller vaguely cited “various programs,” giving them a retroactive chance of preventing “a part of 9/11.” But even this defense of post-9/11 powers is insufficient.

In our 2006 paper, “Effective Counterterrorism and the Limited Role of Predictive Data Mining,” IBM scientist Jeff Jonas and I recounted the ease with which 9/11 attackers Khalid al-Mihdhar and Nawaf al-Hazmi could have been found had government investigators pursued them with alacrity. The 9/11 Commission said with respect to al-Mihdhar, “No one was looking for him.” Had they been caught and their associations examined, the 9/11 plot probably could have been rolled up. Sluggish investigation was a permissive factor in the 9/11 attacks, producing tragic results that nobody foresaw.

That absence of foresight is a twin with retrospective assessments like Mueller’s, which fail to account for the fact that nobody knew ahead of 9/11 what devastation might occur. Immediately after the 9/11 attacks, everybody knew what such an attack could cause, and everybody began responding to the problem of terrorism.

Would Patriot Act programs have prevented at least a part of 9/11? Almost certainly not, given pre-9/11 perceptions that terrorism was at the low end of threats to safety and security. A dozen years since 9/11, terrorism is again at the low end of threats to safety and security because of multiplicitous efforts worldwide and among all segments of society. It is not Patriot Act programs and certainly not mass domestic surveillance that make us safe. Even Mueller didn’t defend NSA spying.

Nat Hentoff on the NSA and Privacy

Today’s Washington Post reports that the National Security Agency violated the rules on domestic surveillance thousands of time a year since Congress granted the agency broader surveillance powers in 2008. Note this revelation did not come to light because of forthright disclosure from the professionals that run the agency, the congressional oversight committees, or the FISA court. Rather, whistleblower Edward Snowden provided this information to the Post. The U.S. government has made it clear that it wants Snowden locked away in a prison cell incommunicado. 

Over at the Wall Street Journal, Peggy Noonan interviewed Cato senior fellow Nat Hentoff about the implications of the surveillance state. Here’s an excerpt:

A loss of the expectation of privacy in communications is a loss of something personal and intimate, and it will have broader implications. That is the view of Nat Hentoff, the great journalist and civil libertarian. He is 88 now and on fire on the issue of privacy. “The media has awakened,” he told me. “Congress has awakened, to some extent.” Both are beginning to realize “that there are particular constitutional liberty rights that [Americans] have that distinguish them from all other people, and one of them is privacy”…

He wonders if Americans know who they are compared to what the Constitution says they are.

Mr. Hentoff’s second point: An entrenched surveillance state will change and distort the balance that allows free government to function successfully. Broad and intrusive surveillance will, definitively, put government in charge. But a republic only works, Mr. Hentoff notes, if public officials know that they—and the government itself—answer to the citizens. It doesn’t work, and is distorted, if the citizens must answer to the government. And that will happen more and more if the government knows—and you know—that the government has something, or some things, on you. “The bad thing is you no longer have the one thing we’re supposed to have as Americans living in a self-governing republic,” Mr. Hentoff said. “The people we elect are not your bosses, they are responsible to us.” They must answer to us. But if they increasingly control our privacy, “suddenly they’re in charge if they know what you’re thinking.”

This is a shift in the democratic dynamic. “If we don’t have free speech then what can we do if the people who govern us have no respect for us, may indeed make life difficult for us, and in fact belittle us?”

More thoughts from Nat Hentoff here.

NSA Spying in the Courts

The National Security Agency’s collection of every American’s telephone dialing information is hotly contested in the court of public opinion and in Congress. It is now seeing its first test in the courts since its existence was revealed.

The Electronic Privacy Information Center, arguing that it has no other recourse, has filed an extraordinary appeal to the Supreme Court of the order requiring Verizon to turn over telephone calling information en masse to the government. EPIC is a Verizon customer that communicates by telephone with confidential sources, government officials, and its legal counsel.

Cato senior fellow and Georgetown University law professor Randy Barnett joined me this week on a brief to the Court urging it to accept the case so it can resolve statutory and constitutional issues that have “precipitated a juridical privacy crisis.”

The brief first argues that the Foreign Intelligence Surveillance Act does not authorize a sweeping warrant for all communications data. The law requires such a warrant to show relevance to an existing investigation, which is impossible when the data is gathered in support of future, entirely speculative investigations. Not only the text of the statute, but Congress’s intent and the structure of the statute support this interpretation.

Happy Gulf of Tonkin Anniversary (and Thanks, NSA, for Lying about It for 40 Years)!

So yesterday marked an unhappy anniversary: 49 years since Congress passed the Gulf of Tonkin Resolution authorizing the Vietnam War. (H/T Caleb Brown.)

LBJ compared the resolution to “grandma’s nightshirt” because it “covered everything.” Like the 2002 Iraq War Resolution, it was worded broadly enough to allow the president to make the final decision about war all by himself—and vaguely enough to allow those who voted for it to deny responsibility for the war they’d authorized. 

There’s a lesson there about how congressional fecklessness enables presidential warmaking. But what happened—or didn’t happen—in the Gulf of Tonkin in August 1964 is even more relevant to the current controversy over just how far we should trust the National Security Agency.

On August 2, 1964, the U.S.S. Maddox came under fire while gathering signals intelligence in Vietnamese territorial waters. But it was the alleged “second attack,” confirmed by the NSA, that LBJ seized upon to order retaliatory bombings and push the Gulf of Tonkin Resolution through Congress.

As we now know, the “second attack” never happened. Days after the attack, Johnson cracked, “Hell, those dumb, stupid sailors were just shooting at flying fish!”  A National Security Agency historian later concluded that “N.S.A. officers had deliberately falsified intercepted communications in the incident to make it look like the attack on Aug. 4, 1964, had occurred, although he said they acted not out of political motives but to cover up earlier errors.”

As Mark Ambinder and D.B. Grady recount in their new book Deep State: Inside the Government Secrecy Industry, ”the NSA covered up its role in mistakenly reporting that two U.S ships had been attacked,” and stuck to its original story for four decades, “a lie perpetuated by secrecy.” In 2005, Freedom of Information Act requests and pressure from the press finally forced the release of classified documents on the Tonkin incident. The NSA resisted almost until the end, fearing, as one intelligence official told the New York Times, their release “might prompt uncomfortable comparisons with the flawed intelligence used to justify the war in Iraq.”

NSA: Keeping Us Safe From…Dope Peddlers

The Justice Department says it is reviewing the Drug Enforcement Administration’s “Special Operations Division”—the subject of an explosive report published by Reuters on Monday. The SOD works to funnel information collected by American intelligence agencies to ordinary narcotics cops—then instructs them to “phony up investigations,” as one former judge quoted in the story put it, in order to conceal the true source of the information. In some instances, this apparently involves not only lying to defense attorneys, but to prosecutors and judges as well.

DEA is taking a predictable “nothing to see here” stance in its public responses to the story, but on its face this seems like a fairly brazen violation of the right to due process. As several legal experts quoted in the Reuters article point out, the accused in our criminal justice system cannot effectively defend themselves unless they know how evidence against them was obtained, and this program is clearly designed to deprive them of that knowledge. Moreover, at least some of the information channeled to police derives from FISA electronic surveillance, and 50 USC §1806 explicitly requires the government to notify persons whenever it intends to use information “derived from” such intercepts against them in any legal proceeding. Flouting that requirement is doubly troubling because, in light of the Supreme Court’s recent ruling in Amnesty v. Clapper, the only way for any court to review the constitutionality of intelligence programs is for a defendant to raise a challenge after being informed that they’ve been subject to surveillance.

One way they’re able to get away with this is by exploiting the fact that our justice system relies so heavily on plea bargains. Prosecutors stack up charges against defendants in hopes of effectively coercing them into waiving their constitutional right to a jury trial and accepting a plea deal, which even for the innocent may make more sense than risking a conviction that could lead to an enormously longer jail sentence. Conveniently, avoiding a trial also greatly reduces the risk that one of these “phonied up” investigations will be exposed.