The latest chapter in the ongoing tale of NSA overreach may be the most troubling one yet. Reuters has revealed that NSA has been sharing information with a secret group within DEA to help them launch criminal investigations against American citizens, and apparently the IRS has been in on the game as well. Furthermore, law enforcement officers involved in these cases were instructed to conceal the use of these NSA information sources to both prosecutors and courts.
This week’s revelations expose an ongoing subversion of the tools of national defense for the purpose of domestic law enforcement. These actions strike closer to home than any of the previously-uncovered NSA programs. While the individual mechanics may not be as stunning as the headlines suggest, taken in the aggregate they highlight two specific points: 1) the technology we use to hunt terrorists is so flexible and powerful that other federal agencies are “clamoring” for it, regardless of whether it is the right tool for the job, and 2) by its nature, NSA technology allows for a greater bifurcation between investigation and prosecution than ever before.
Technology is nothing but purpose, systematized.
"There’s a reason you separate military and the police. One fights the enemies of the state, the other serves and protects the people. When the military becomes both, then the enemies of the state tend to become the people."
—Commander William Adama, “Water,” Battlestar Galactica (2005).
It is hardly surprising that NSA shares information with other agencies. Despite their questionable effectiveness, this is the rationale behind the Department of Homeland Security’s “fusion centers.” It even makes a kind of logical sense: if the processing of sufficiently detailed information can root out one kind of networked wrongdoing (terrorism), then why can’t it be used to solve other, more conventional forms of crime, especially those as network-dependent as the drug trade?
From a purely technocratic perspective, the division between “international terrorism” and “conventional crime” is arbitrary; however, if one believes in the rule of law, and that Americans possess certain, Constitutionally-protected civil liberties that do not extend to citizens of foreign nations, then the distinction is essential.
As we have learned over the last two months, NSA has access to vastly powerful surveillance technology, all of which was created to acquire signals-based intelligence in the service of national security. As a rule, national security-oriented signals intelligence is a dirty game. It has few set rules, no referees, deep asymmetries between the sides, and, at bottom, many of the players involved are constantly searching for advantages over their enemies. At minimum, it seems fair to believe that the various NSA engineers and contractors built their systems to operate on this sort of field.
Compared to the brutal Australian football of national security, domestic law enforcement is a downright genteel game of tennis. We have impartial judges, well-established rules, systems of appeals, and an ironclad, Constitutional baseline limiting the actions that the government is allowed to take. Sure, police would be able to catch more criminals if they could enter homes without warrants, but we (by way of the Fourth Amendment) intentionally make their lives more difficult to protect our essential security from government intrusion.
NSA tools have no place in this latter, more delicate context. They are too powerful. They were designed for use in far less confining environments. They sweep in nearly all information by default, and the relatively spare restrictions they places upon users only appear at the analysis phase. This is a far cry from a system built upon warrants, chains of evidence, suppression hearings, and the exclusionary rule. It’s an M1A2 Abrams tank dropped into a carnival game of bumper cars. Not only does it not fit under the tent, but it also has the potential to knock over all of the carefully-constructed barriers that we use to keep ourselves safe.
Parallel construction may not be new, but NSA technology makes it much, much worse.
Arguably the single most controversial aspect of that initial Reuters report was its disclosure of the practice of “parallel construction.” Per the article, agents were instructed to hide the involvement of the Special Operations Division (the unit that distributes information acquired from national security sources) from “investigative reports, affidavits, discussions with prosecutors and courtroom testimony.” Furthermore, agents were instructed to use “normal investigative techniques to recreate the information provided by SOD.”
As troubling as this practice appears—and make no mistake, it is without question disturbing to think of law enforcement officers being told to conceal information from the judicial system—it is not exactly a new one. There has never been a one-to-one mapping between investigation and prosecution. While the Brady Rule requires that the prosecution disclose exculpatory evidence to the defense, it has never been taken to mean that police or prosecutors must provide details on every aspect of their investigations. And traffic stops,both legitimate and pretextual, have long served as a basis for further investigation of suspects.
In theory, the balance to this information asymmetry comes from the adversarial structure of our justice system. The prosecution must prove the defendant’s guilt beyond a reasonable doubt, using a coherent, convincing chain of evidence. The defense has a variety of tools at their disposal to keep the prosecution (and in turn the police) honest.
In practice, NSA’s tools have the power to fundamentally alter this power dynamic. Large-scale data analysis is often described as “connecting the dots,” but, given enough data points on a large enough piece of paper, it is possible to draw almost any picture one would like.
Put another way, we all break the law constantly. Until recently, the difficulty of investigation meant that obscurity alone could insulate us from police overreach. This is no longer the case. Modern technology such as that employed by NSA makes the process of “parallel construction” almost trivially easy, which in turn dramatically expands the investigatory powers of the police.
In the end, it’s the lying that matters most.
One last thing: somewhere along the way, someone decided that the investigative utility that federal agencies can derive from information gathered by NSA and other national security-oriented sources is both too important and too legally tenuous to risk it being challenged in court. Law enforcement, from federal agencies all the way down to the local police force, is supposed to be the mechanism by which society protects itself. When agents of that protection are instructed to lie to circumvent the very civil liberties that our society is built upon, then it raises very uncomfortable questions about what we are trying to protect in the first place.
Setting aside sociopathy and entertainment, we only ever lie when the cost of telling the truth is higher than we are willing to pay. Why else would we undertake the cognitive, moral, ethical, logistical, and social burdens that come with lying? When it comes to counterterrorism, NSA, and the modern American national security apparatus in general, many of our leaders and government agencies operate as if the cost of truth is very high indeed, on almost every occasion. Director of National Intelligence James Clapper performed a similar analysis when he chose to give a “least untruthful” answer to Senator Ron Wyden on the subject of mass data collection. The Central Intelligence Agency did the same when it denied the existence of a drone program. And now we learn that DEA hides the truth of its investigations as part of conventional, every-day law enforcement.
This constant lying is absolutely toxic to a representative democracy. Power in a system like ours is supposed derive from the collective will of the people, and lying forces us to base our societal decisionmaking upon false premises. It subverts our collective will and risks the trust that is the fuel of our society.
Photo Credit: Infrogmation