Beware the NSA’s contrition tactic over transparency – it’s a trap

the-nsa-trained-edward-snowden-to-be-an-elite-hackerBy Simon Davies

Two weeks ago the Director of US National Intelligence, James Clapper, gave an interview with Eli Lake of The Daily Beast, in which he broke some new ground by stating that the core problem in recent spying controversies is that the NSA should have been more open about its activities.

Against a wonderfully orchestrated backdrop of fake candour, Clapper explained:

James Clapper: using transparency to neutralise privacy

James Clapper: using transparency to neutralise privacy

“I probably shouldn’t say this, but I will. Had we been transparent about this from the outset right after 9/11—which is the genesis of the 215 program—and said both to the American people and to their elected representatives, we need to cover this gap, we need to make sure this never happens to us again, so here is what we are going to set up, here is how it’s going to work, and why we have to do it, and here are the safeguards… We wouldn’t have had the problem we had.”

To some readers, this might appear a reasonable and ethically sound view. In reality, Clapper’s position masterly circumvents the profoundly important legal and ethical issues of mass surveillance. In fact, the transparency concession is constructed in part to neutralise – certainly to muddy – the privacy position.

“What did us in here, what worked against us was this shocking revelation,” he said, referring to the first disclosures from Snowden. If the program had been publicly introduced in the wake of the 9/11 attacks, most Americans would probably have supported it. “I don’t think it would be of any greater concern to most Americans than fingerprints. Well people kind of accept that because they know about it. But had we been transparent about it and say here’s one more thing we have to do as citizens for the common good, just like we have to go to airports two hours early and take our shoes off, all the other things we do for the common good, this is one more thing.”

It’s important to recognise that this is a well engineered strategy, not a turning point in the consciousness of US security agencies. Companies and governments alike will almost always play the transparency card when the privacy stakes are high enough.

Companies and governments alike will almost always play the transparency card when the privacy stakes are high enough.

It’s instructive to look back at the interview that the Privacy Surgeon conducted with former NSA and CIA Director General Michael Hayden more than a year ago. See if you can spot the similarities to Clapper’s utterances:

Davies – (I) wonder for example, you were in control of SIGINT at the time of 9/11 – would you behave differently or would you have made decisions differently now, knowing what you know now than you did then?

Hayden – I’ll give you one, with absolute clarity, and it actually ties in with our earlier conversation, Simon. The administration opted for its most sensitive initiatives after 9/11 – to brief only the gang of eight – that’s the leaders of the two Cameras and the leaders of the intelligence committees. That’s a mistake. I’d have gone full monty to the full committees.

Davies – But you supported it at the time?

Hayden – Actually, at the time I argued for as much transparency as possible. Did I say, once we’d briefed the gang of eight did I continually tug at the sleeves of the executive branch saying, ‘we’ve gotta tell more people’? No I didn’t, but looking backward on it, because when these things become public – and they always do – the more members of congress who know, the better you are for that one factor that you and I chatted about earlier – the political sustainability.

Michael_Hayden,_CIA_official_portraitAnd with reference to controversy over the terrorist surveillance program, Hayden added: “Again, if I had it to do over again, I’d have reached a far larger number of people on the intelligence committees… What I regret – in retrospect – is not briefing more members of congress.”

The contrition tactic over transparency is an old one, and those who care about accountability should be aware of the pitfalls that it brings. It’s also important to recognise that licence through disclosure is a legal non sequitur. Rights are not so easily traded away, and certainly not merely through disclosure.

Clapper’s seemingly reflective and contemporary view is also, in my view, entirely synthetic. Otherwise, why would Clapper not have taken on board Hayden’s advice much earlier in this scandal?

Well, at least one point on which Hayden was usefully transparent was this closing remark:

“Again, the full story of the terrorist surveillance program has never been told. What’s been portrayed in the press is on a good day, incomplete.”