Two years ago General Keith Alexander, the director of the NSA, defended the necessity of mass-surveillance at the Aspen Security Forum. He recalled all the fearful tropes common among defenders of the NSA. Terrorists walk among us. They would do us harm. They are a needle to winkle from society. Safety requires sacrifice. Mass-surveillance of communicative meta-data is an entirely necessary investigative tool. As he put it himself, “you need the haystack to find the needle.” This last week he was joined by Senator Marco Rubio and Mr. James Comey who reiterated much of what he said. You should be afraid. There are dangerous people in this world. They are armed and willing to kill. They are an ever present danger. They will get you. This is the fear which they would have you feel so as to justify themselves as the only bulwark against the encroaching other. But, when we track the communication of every American, are we not simply constructing the haystack for its own sake, and at what cost does it come? Ultimately, the defenders of NSA surveillance demand that we believe in its efficacy despite their having done little to prove it. Disregard what its defenders would tell you, the program of mass-surveillance as conducted by the NSA cannot protect you, and in its failure it extracts a serious social cost.
The recent attack in Garland, Texas gives the lie to the first part. The two men, Elton Simpson and Nadir Soofi, who sought to kill as a consequence of their ideology were not discovered nor forestalled by any NSA program. Although they had been known to the FBI, this knowledge had been developed through normal investigative means. Nevertheless, the government was unable to take action against them before their attempted attack. In defense of his agency, Mr. Comey notes that the attackers were “one of hundreds, or perhaps thousands of people in the United States who are following the Islamic State on social media.” The difficulty therefore was that “while the F.B.I. had hundreds of investigations into homegrown terrorism underway, the influence of social media had made it far more challenging to determine who actually posed a threat.” But, if this should be an excuse for failing to catch these men before they acted, is it not also an indictment of mass-surveillance as performed by the NSA? Take General Alexander’s proverbial haystack. In this case, the location and orientation of two needles which lay within it were known, but actually reaching them was made impossible by the hay which surrounded them. What then is the point of constructing the haystack? The fact is that, as a practical matter, the huge trove of information which the NSA collects is detrimental to our security. It gives a false sense of knowledge. As happened in Garland, too much information makes the task of discerning those nuggets which actually matter utterly impossible.
This is something acknowledged even by the review panel appointed by President Barack Obama. Almost presciently, the report’s author Peter Bergen notes that “the overall problem for U.S. counterterrorism officials is not that they need vaster amounts of information from the bulk surveillance programs, but that they don’t sufficiently understand or widely share the information they already possess that was derived from conventional law enforcement and intelligence techniques” In a concurrent study conducted by the New America Foundation, it was found that the majority of terrorism cases were initiated as a consequence of time-tested investigative techniques. Despite the trove of data which the NSA has accumulated, investigators continued to rely on informants and local communities to report suspicious activity. Senator Marco Rubio, Mr. James Comey and others have asked us to trust our government institutions, and I do. In this case I trust the investigators who make it their profession to track criminals to do so in the way that they find most effective, with the tools which they find most efficient. That these tools have had nothing to do with the NSA’s mass-surveillance is in itself a conspicuous indictment of the program
The hysterical defense which is sometime offered to counter this reality, that the program needs to forestall only one attack to justify itself entirely, ignores a basic principle of security – it’s always a consideration of cost against benefit. In the United States it is absurdly more likely that you will die of a preventable disease or in a car crash than in a terrorist attack. Yet, terrorism commands our attention and our resources. There are obvious and good reasons for why this is so; terrorism is an intentional and dramatic act of violence, tragic in a way that accidental death cannot be. However, in planning our response to preventable harm, as all three of these causes of death are, we must make a full evaluation of circumstance so as to avoid an irrational reaction. Other people have spoken far more intelligently and more ably on this subject than I can, but as a citizen of our republic there remains something for me to say: a free society cannot ultimately survive as a suspicious society. Obviously, the government has the power to guard itself and society from crime and upheaval, and it is right that the government should maintain investigatory powers for this purpose. However, as a fearful reaction to tragedy the USA Patriot Act overreached. It has been applied in ways which grant the government unnecessary and socially dangerous surveillance powers which abrogate the ideal limits of the 4th Amendment. Security cannot be reasonably bought at the expense of liberty.