In
June 1942, the bulk of the Japanese fleet sailed to seize the Island of Midway.
Had Midway fallen, Pearl Harbor would have been at risk and U.S. submarines,
unable to refuel at Midway, would have been much less effective. Most of all,
the Japanese wanted to surprise the Americans and draw them into a naval battle
they couldn't win.
The
Japanese fleet was vast. The Americans had two carriers intact in addition to
one that was badly damaged. The United States had only one advantage: It had
broken Japan's naval code and thus knew a great deal of the country's battle
plan. In large part because of this cryptologic advantage, a handful of
American ships devastated the Japanese fleet and changed the balance of power
in the Pacific permanently.
This
-- and the advantage given to the allies by penetrating German codes -- taught
the Americans about the centrality of communications code breaking. It is
reasonable to argue that World War II would have ended much less satisfactorily
for the United States had its military not broken German and Japanese codes.
Where the Americans had previously been guided to a great extent by Henry
Stimson's famous principle that "gentlemen do not read each other's
mail," by the end of World War II they were obsessed with stealing and
reading all relevant communications.
The
National Security Agency evolved out of various post-war organizations charged
with this task. In 1951, all of these disparate efforts were organized under
the NSA to capture and decrypt communications of other governments around the
world -- particularly those of the Soviet Union, which was ruled by Josef
Stalin, and of China, which the United States was fighting in 1951. How far the
NSA could go in pursuing this was governed only by the extent to which such
communications were electronic and the extent to which the NSA could intercept
and decrypt them.
The
amount of communications other countries sent electronically surged after World
War II yet represented only a fraction of their communications. Resources were
limited, and given that the primary threat to the United States was posed by
nation-states, the NSA focused on state communications. But the principle on
which the NSA was founded has remained, and as the world has come to rely more
heavily on electronic and digital communication, the scope of the NSA's
commission has expanded.
What
drove all of this was Pearl Harbor. The United States knew that the Japanese
were going to attack. They did not know where or when. The result was disaster.
All American strategic thinking during the Cold War was built around Pearl
Harbor -- the deep fear that the Soviets would launch a first strike that the
United States did not know about. The fear of an unforeseen nuclear attack gave
the NSA leave to be as aggressive as possible in penetrating not only Soviet
codes but also the codes of other nations. You don't know what you don't know,
and given the stakes, the United States became obsessed with knowing everything
it possibly could.
In
order to collect data about nuclear attacks, you must also collect vast amounts
of data that have nothing to do with nuclear attacks. The Cold War with the
Soviet Union had to do with more than just nuclear exchanges, and the
information on what the Soviets were doing -- what governments they had
penetrated, who was working for them -- was a global issue. But you couldn't
judge what was important and what was unimportant until after you read it. Thus
the mechanics of assuaging fears about a "nuclear Pearl Harbor"
rapidly devolved into a global collection system, whereby vast amounts of
information were collected regardless of their pertinence to the Cold War.
There
was nothing that was not potentially important, and a highly focused collection
strategy could miss vital things. So the focus grew, the technology advanced
and the penetration of private communications logically followed. This was not
confined to the United States. The Soviet Union, China, the United Kingdom,
France, Israel, India and any country with foreign policy interests spent a
great deal on collecting electronic information. Much of what was collected on
all sides was not read because far more was collected than could possibly be
absorbed by the staff. Still, it was collected. It became a vast intrusion
mitigated only by inherent inefficiency or the strength of the target's
encryption.
Justified Fear
The
Pearl Harbor dread declined with the end of the Cold War -- until Sept. 11,
2001. In order to understand 9/11's impact, a clear memory of our own fears
must be recalled. As individuals, Americans were stunned by 9/11 not only
because of its size and daring but also because it was unexpected. Terrorist
attacks were not uncommon, but this one raised another question: What comes
next? Unlike Timothy McVeigh, it appeared that al Qaeda was capable of other,
perhaps greater acts of terrorism. Fear gripped the
land. It was a justified fear, and while it resonated across the
world, it struck the United States particularly hard.
Part
of the fear was that U.S. intelligence had failed again to predict the
attack. The public did not know what would come next, nor did it believe
that U.S. intelligence had any idea. A federal commission on 9/11 was created
to study the defense failure. It charged that the president had ignored
warnings. The focus in those days was on intelligence failure. The CIA admitted
it lacked the human sources inside al Qaeda. By default the only way to track
al Qaeda was via their communications. It was to be the
NSA's job.
As
we have written, al Qaeda was a global, sparse and dispersed network. It
appeared to be tied together by burying itself in a vast new communications
network: the Internet. At one point, al Qaeda had communicated by embedding
messages in pictures transmitted via the Internet. They appeared to be using
free and anonymous Hotmail accounts. To find Japanese communications, you
looked in the electronic ether. To find al Qaeda's message, you looked on the
Internet.
But
with a global, sparse and dispersed network you are looking for at most a few
hundred men in the midst of billions of people, and a few dozen messages among
hundreds of billions. And given the architecture of the Internet, the messages
did not have to originate where the sender was located or be read where the
reader was located. It was like looking for a needle in a haystack. The needle
can be found only if you are willing to sift the entire haystack. That led to
PRISM and other NSA programs.
The
mission was to stop any further al Qaeda attacks. The means was to break into
their communications and read their plans and orders. To find their plans and
orders, it was necessary to examine all communications. The anonymity of the
Internet and the uncertainties built into its system meant that any message
could be one of a tiny handful of messages. Nothing could be ruled out.
Everything was suspect. This was reality, not paranoia.
It
also meant that the NSA could not exclude the communications of American
citizens because some al Qaeda members were citizens. This was an attack on the
civil rights of Americans, but it was not an unprecedented attack. During World
War II, the United States imposed postal censorship on military personnel, and
the FBI intercepted selected letters sent in the United States and from
overseas. The government created a system of voluntary media censorship that
was less than voluntary in many ways. Most famously, the United States
abrogated the civil rights of citizens of Japanese origin by seizing property
and transporting them to other locations. Members of pro-German organizations
were harassed and arrested even prior to Pearl Harbor. Decades earlier, Abraham
Lincoln suspended the writ of habeas corpus during the Civil War, effectively
allowing the arrest and isolation of citizens without due process.
There
are two major differences between the war on terror and the aforementioned
wars. First, there was a declaration of war in World War II. Second, there is a
provision in the Constitution that allows the president to suspend habeas
corpus in the event of a rebellion. The declaration
of war imbues the president with certain powers as commander in chief --
as does rebellion. Neither of these conditions was put in place to justify NSA
programs such as PRISM.
Moreover,
partly because of the constitutional basis of the actions and partly because of
the nature of the conflicts, World War II and the Civil War had a clear end, a
point at which civil rights had to be restored or a process had to be created
for their restoration. No such terminal point exists for the war on terror. As
was witnessed at the Boston Marathon -- and in many instances over the past
several centuries -- the ease with which improvised explosive devices can be
assembled makes it possible for simple terrorist acts to be carried out cheaply
and effectively. Some plots might be detectable by intercepting all
communications, but obviously the Boston Marathon attack could not be
predicted.
The
problem with the war on terror is that it has no criteria of success that is
potentially obtainable. It defines no level of terrorism that is tolerable but
has as its goal the elimination of all terrorism, not just from Islamic sources
but from all sources. That is simply never going to happen and therefore, PRISM
and its attendant programs will never end. These intrusions, unlike all prior
ones, have set a condition for success that is unattainable, and therefore the
suspension of civil rights is permanent. Without a constitutional amendment,
formal declaration of war or declaration of a state of emergency, the executive
branch has overridden fundamental limits on its powers and protections for
citizens.
Since
World War II, the constitutional requirements for waging war have fallen by the
wayside. President Harry S. Truman used a U.N resolution to justify the Korean
War. President Lyndon Johnson justified an extended large-scale war with the
Gulf of Tonkin Resolution, equating it to a declaration of war. The conceptual
chaos of the war on terror left out any declaration, and it also included North
Korea in the axis of evil the United States was fighting against. Former NSA contractor
Edward Snowden is charged with aiding an enemy that has never been legally
designated. Anyone who might contemplate terrorism is therefore an enemy. The
enemy in this case was clear. It was the organization of al Qaeda but since
that was not a rigid nation but an evolving group, the definition spread well
beyond them to include any person contemplating an infinite number of actions.
After all, how do you define terrorism, and how do you distinguish it from
crime?
Three
thousand people died in the 9/11 attacks, and we know that al Qaeda wished to
kill more because it has said that it intended to do so. Al Qaeda and other
jihadist movements -- and indeed those unaffiliated with Islamic movements --
pose threats. Some of their members are American citizens, others are citizens
of foreign nations. Preventing these attacks, rather than prosecuting in the
aftermath, is important. I do not know enough about PRISM to even try to guess
how useful it is.
At
the same time, the threat that PRISM is fighting must be kept in perspective.
Some terrorist threats are dangerous, but you simply cannot stop every nut who
wants to pop off a pipe bomb for a political cause. So the critical question is
whether the danger posed by terrorism is sufficient to justify indifference to
the spirit of the Constitution, despite the current state of the law. If it is,
then formally declare war or declare a state of emergency. The danger of PRISM
and other programs is that the decision to build it was not made after the
Congress and the president were required to make a clear finding on war and
peace. That was the point where they undermined the Constitution, and the
American public is responsible for allowing them to do so.
Defensible Origins, Dangerous Futures
The
emergence of programs such as PRISM was not the result of despots seeking to
control the world. It had a much more clear, logical and defensible origin in
our experiences of war and in legitimate fears of real dangers. The NSA was
charged with stopping terrorism, and it devised a plan that was not nearly as
secret as some claim. Obviously it was not as effective as hoped, or the Boston
Marathon attack wouldn't have happened. If the program was meant to suppress
dissent it has certainly failed, as the polls and the media of the past weeks
show.
The
revelations about PRISM are far from new or interesting in themselves. The NSA
was created with a charter to do these things, and given the state of
technology it was inevitable that the NSA would be capturing communications
around the world. Many leaks prior to Snowden's showed that the NSA was doing
this. It would have been more newsworthy if the leak revealed the NSA had not
been capturing all communications. But this does give us an opportunity to
consider what has happened and to consider whether it is tolerable.
The
threat posed by PRISM and other programs is not what has been done with them
but rather what could happen if they are permitted to survive. But this is not
simply about the United States ending this program. The United States certainly
is not the only country with such a program. But a reasonable start is for the
country that claims to be most dedicated to its Constitution to adhere to it
meticulously above and beyond the narrowest interpretation. This is not a path
without danger. As Benjamin Franklin said, "They that can give up
essential liberty to obtain a little temporary safety deserve neither liberty
nor safety."
Read more: Keeping the NSA in Perspective | Stratfor
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