20 July 2014
There's been a lot of outcry in the wake of the Snowden revelations about retention of data on non-targeted indivduals. I think that a lot of this is due to confusion about what intelligence agencies do, as contrasted with the more familiar requirements and procedures of law enforcement. Basically, the two groups are almost entirely dissimilar, in what they need and what they do. Reasoning from the needs of of the police to understand the needs of the intelligence community just doesn't work. Conversely, letting the police act like intelligence agencies is a often threat to due process. Note that I'm speaking of the intelligence versus law enforcement roles, as opposed to organizations. Mixing the two roles is what causes trouble.
The goal of a police investigation is prosecution and conviciton of malefactors. They need evidence that is legally admissible, they have to disclose their evidence in court (and turn over exculpatory evidence to the defense), and prove guilt beyond a resonable doubt, in the face of opposition by a defense attorney. Information that can't be used in this fashion isn't useful to them; it's quite proper to insist that it not be collected or retained.
None of that is true for intelligence agencies. There's no question of admissibility, only reliability. There's no due process, no requirement to disclose anything, no adversarial process in anything like the same fashion. Intelligence agencies virtually never know anything beyond a reasonable doubt—and if they think they do, they'll worry that they've been misled by disinformation. It's always a question of what they can glean from fragmentary sources. Furthermore, they often succeed solely because of their historical and contextual background: something is useful solely because of apparently inconsequential information they'd gathered years earlier and retained against possible future utility. (The best accessible descriptions of how this is done can be found in intelligence histories of World War II; most later stuff is either still classified or far too hard to find.)
The most troubling recent story, to some, was the Washington Post's description of how the NSA monitored and kept the conversations between an Australian woman and her Taliban-sympathizing boyfriend.
Looking back, the young woman said she understands why her intimate correspondence was recorded and parsed by men and women she did not know.Why might this still be relevant? Let's try a hypothetical example.
"Do I feel violated?" she asked. "Yes. I'm not against the fact that my privacy was violated in this instance, because he was stupid. He wasn't thinking straight. I don't agree with what he was doing."
What she does not understand, she said, is why after all this time, with the case long closed and her own job with the Australian government secure, the NSA does not discard what it no longer needs.
Suppose that the CIA would like to spy on the Taliban. Unlike in the movies or even law enforcement, real operatives are rarely the actual intellligence gatherers. They can't be; they're too obviously outsiders (though there are certainly exceptions like Eli Cohen). Instead, the typical agent is a handler, someone who manages an insider who has either volunteered to spy or been "turned". Spies' skills are applied psychology, manipulation, and perhaps lying, extortion, and bribery. Donnie Brasco equivalents don't infiltrate the Taliban; rather, the CIA or whomever will try to turn someone whom the Taliban would find plausible—such as the Australian who'd already tried once to join them. But how could they reach him? What is their insight into his personality, or they're lever to pressure him? Yup—those recorded, intimate conversations. Knowledge that "what we did was evil and cursed and may allah swt MOST merciful forgive us for giving in to our nafs [desires]" might be a very good lever indeed.
Is that particular scenario realistic? It probably wouldn't happen, if for no other reason than that that man might never try again. Intelligence agencies, though, are always playing low probabilities, because there are no high ones in their world. That file may not prove useful, but one their others just might—or so they hope.
Is such behavior by the spooks immoral? Call intelligence agencies amoral; more precisely, they subscribe to a different moral code. Espionage, it turns out, is not against international law. Spying, by all nations, always has been like this and probably always will be. Telling a major country to give up spying is like telling a lion to become a vegetarian. It just won't happen, until well after there's a sustained outbreak of world peace. That doesn't mean people shouldn't try to restrict it, but such efforts are not likely to succeed.
The NSA stories raise other issues, including retention of their data on Americans, but that's a subject for a different essay.