Keith Alexander’s Dinner Theater

A bunch of people have been discussing Stanford Professor Jennifer Granick’s account of a dinner she had with NSA Director and CyberComander Keith Alexander. The main storyline describes how, three weeks ago, Lying Keith promised Granick that seeing the Primary Order for the Section 215 dragnet would make her more comfortable with the program.

It didn’t work out how Lying Keith might have liked.

I had a chance to read the Primary Order the next day, and rather than reassure, it raised substantial concerns.  First, it did not set forth any legal basis for the phone record collection, which Christopher Sprigman and I have argued is illegal.  Second, it confirmed that the FISA court does not monitor compliance with its limitations on the collection program, a problem that, according to a former FISA court judge, is endemic to NSA surveillance programs.

If that weren’t already enough, seeing the FISA Court order released earlier this week, with its revelation that — at least until 2009 — the safeguards on the dragnet program never functioned at all, really ruined Alexander’s efforts to make her feel better.

I remembered our conversation about the Primary Order yesterday while reading the newly declassified FISA court opinion that tangentially raised the phone records surveillance program.  According to the court in 2011, NSA was flagrantly disregarding the dictates of the Primary Order anyway:

[T]he Court concluded that its authorization of NSA’s bulk acquisition of telephone call detail records … in the so-called “big business records” matter “ha[d] been premised on a flawed depiction of how the NSA uses [the acquired] metadata” and that “[t]his misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government’s submissions and despite a government-devised and Court-mandated oversight regime.” … Contrary to the government’s repeated assurances, NSA had been routinely running queries of the metadata using querying terms that did not meet the required standard for querying.  The Court concluded that this requirement has been “so frequently and systemically violated that it can fairly be said that this critical element of the overall … regime has never functioned effectively.” (Footnote 14)

How does a good man sit across you from the dinner table and assure you the government is properly constrained, when in reality it lies and disregards even the most anemic purported safeguards?

Granick is far more polite than I am — because my conclusion here would be “a good man doesn’t spin you like this.”

But there’s one further bit of spin she doesn’t mention explicitly. Alexander — as he has done repeatedly since Snowden’s documents started leaking — pretended this was all about terrorism.

I have no doubt that Gen. Alexander loves this country as much as I do, or that his primary motivation is to protect our nation from terrorist attacks. “Never again,” he said over dinner.

[snip]

The General seemed convinced that if only I knew what he knew, I would agree with him. He urged me to visit Pakistan, so that I would better understand the dangers America faces.  I responded that one of my longest-standing friends has relatives there and visits regularly, maybe she would take me.  I did not miss his point, and he did not miss mine.

I’m not saying this isn’t, partly, about terrorism. But if that’s all he’s doing, Alexander can roll up his CyberCommand, all the programs targeting Iran, and more generalized cyberdefense: the things that, until these leaks, were considered more urgent issues. Once again, Alexander wants to use terror terror terror to justify a dragnet that (for the content side) targets far more broadly than just terror.

I asked Granick about this, and she said Alexander said “surprisingly little” about cybersecurity — perhaps just a comment about the applying the rules of armed conflict to cyberwar.

As with his audience at BlackHat, Alexander here was talking to someone that Stanford considers an expert on cybercrime and cybersecurity. All differences of opinion about the phone dragnet aside, he should have spent his dinner with Granick discussing ways to accomplish the objectives of cybersecurity most effectively.

[A]s we go into cyber and look at–for cyber in the future, we’ve got to have this debate with our country. How are we going to protect the nation in cyberspace?

… Alexander claimed when speaking to a group that stood to get rich off of cybersecurity.

And yet, once again, when presented an opportunity to have that debate with one of the experts he needs to win over, Alexander cowered from the debate.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

8 replies
  1. Snoopdido says:

    From the Chris Cuomo interview of Obama at CNN – http://www.cnn.com/2013/08/23/politics/barack-obama-new-day-interview-transcript/?hpt=po_c1

    “Are there additional reforms that can be taken that preserve the core mission of the NSA, which is making sure that we have enough intelligence to protect ourselves from terrorism or weapons of mass destruction or cybersecurity, but do it in a way that Americans know their basic privacies are being protected? I think that could be achieved.”

    At least cybersecurity is mentioned, though that’s a deliberately innocuous cover for all things “cyber” that the US government is doing including the not so innocuous cyberwarfare.

    When the US government is sitting inside Cisco routers that comprise 70% of all the routers on the Internet globally watching, grabbing and inserting stuff into the data that flows past, this isn’t just about cybersecurity, but about cyberdominance.

  2. der says:

    Of course he did, because she’s smarter than he is. The haters, America blaming Olde Europe loving traitors forget that terrorism was found among the bulrushes on 9-11 and up until that day The Homeland was a shining city on a hill utopia. At Blackhat Alexander knew no one would challenge him when he said – “Sitting among you are people who mean us harm…” intimidated to stay in their seats else raise suspicion about themselves. Or fear that General Keith Nathan Jessup Alexander might give them an embarrassing public beat down: http://www.youtube.com/watch?v=5j2F4VcBmeo

  3. lefty665 says:

    Long past time for Alexander to go. An eight year tour as DIRNSA for him and six for Hayden before him are fundamental flaws. Three years is the norm, with the occasional four year stint. Long term spymasters have a history of being abusive.

  4. What Constitution? says:

    @der: Ah, fairy tales…. And in A Few Good Men, Col. Jessup actually gets arrested for the criminal acts admitted in this speech. We’re still waiting on Alexander. And Clapper. And Cheney. And …..

  5. bell says:

    one quote that always comes up in the usa goes something like this which is a quote from your post “I have no doubt that Gen. Alexander (insert any name here) loves this country as much as I do, or that his primary motivation is to protect our nation from terrorist attacks. – See more at: http://www.emptywheel.net/#sthash.VgcrDcHP.dpuf

    it is like saying someone into religion loves god with all their heart, which is fine too i suppose, but shows the level of emotionalism attached to these arguments to suggest someone else might not be as fanatical in their patriotic zeal as the next person..lets call all of that what it is – patriotism of the worst kind. if one ever were to wonder why terrorism is happening and they can’t connect the dots to a military industrial complex and the pain and suffering at the other end of this, then there is no hope for them and terrorism is what they will be dealing with to the ends of time.

  6. ferd says:

    ” . . . seeing the FISA Court order released earlier this week, with its revelation that — at least until 2009 — the safeguards on the dragnet program never functioned at all . . .”

    By any chance, did the “safeguards” kick in, oh, around Jan. 20, 2009?

  7. JohnT says:

    Stories like this make me want to kick myself for missing a lecture about the Patriot Act by Russ Feingold in Palo Alto a few months ago

  8. earlofhuntingdon says:

    Alexander the Not-So-Great seems addicted to spin; legitimately engaging a real expert in order to persuade her of the legitimacy of his command’s efforts would be both beyond his reach and a hopeless task.

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