Biden Goes All In On FBI/NSA Mass Surveillance

Edited by Sam Thielman

FOR A COUPLE MONTHS I've expected the White House to accept limits on the intelligence community's cherished Section 702 surveillance authority after the revelation that the FBI used this allegedly foreign-focused dragnet to evade warrant requirements for monitoring Black Lives Matter activists. Shows what I know!

On Monday, Joe Biden's national security adviser Jake Sullivan and deputy Jon Finer came out against reform of "one of the nation's most critical intelligence tools," effectively telling Congress to simply re-authorize Section 702. That's the bottom line of an intelligence advisory board—selected by the Biden White House, though Sullivan and Finer hilariously call it "independent." When asked for recommendations about Section 702 ahead of the statute's December expiration, the advisory board proposed voluntary restrictions on the FBI. Everyone remotely familiar with 15 years worth of Foreign Intelligence Surveillance Court (FISA Court) decisions knows the FBI (and likely others) will routinely violate those, all while FISA Court judges wring their hands and say don't do that again. Egregiously, the board's report starts off by narrating the events of 9/11, much as John Brennan did in 2014 when responding to the Senate intelligence committee's torture report.

With the pantomime of due diligence performed, Sullivan and Finer announce:

We agree with the unanimous conclusion reached by this group of independent, deeply experienced experts that failure to reauthorize Section 702 could be “one of the worst intelligence failures of our time.” We also agree with the Board’s recommendation that Section 702 should be reauthorized without new and operationally damaging restrictions on reviewing intelligence lawfully collected by the government and with measures that build on proven reforms to enhance compliance and oversight, among other improvements.  We look forward to reviewing the Board’s recommendations for how we can secure this critical national security authority and to working with Congress to ensure its reauthorization. [my emphasis]

"Lawfully collected" tells you everything you need to know. Yes, the collection itself is "lawful," thanks to 702, but the 702 collection—which is suspicionless by definition and is not subject to any warrant requirement, as a judge on a secret court merely approves procedures by which 702 surveillance is conducted—is, to put it mildly, constitutionally dubious. Notice as well a crucial elision: the collection may be "lawful," but Sullivan and Finer (on behalf of the FBI and the NSA) claim that "lawfulness" in NSA’s data acquisition also covers the FBI's warrantless searches for Americans’ data through that collection—dragnets that, remember, are allegedly focused on foreigners. "Reviewing" is also a risible euphemism for performing a search.

Meanwhile, FISA Court judge after FISA Court judge has found that, oops, the surveillance actually doesn't work the way the FBI, NSA and Justice Department said it did, and way more Americans were inappropriately surveilled by the FBI searching through the NSA databases. The only way, it turns out, to deter that surveillance was to make the FBI document themselves doing it.

This is a race not just to the bottom of the 4th Amendment, which I think is fair to say doesn't really exist in practice anymore, but beneath it. The Biden team is exhuming the corpse of the 4th Amendment to dress Section 702 in its funeral clothes. This charade pretends that bulk surveillance respects the Constitution while making the Constitution respect bulk surveillance. Decades ago, American anticommunists laughed at all the rights promised by the Soviet constitution that the Soviet state violated. Well, I have bad news for you about the Bill of Rights during the War on Terror.

As mentioned two editions of FOREVER WARS ago, in mid-July the NSA released a data strategy for the next two years that pledges to incorporate advances in artificial intelligence. Like much of the Security State and its commentariat, the Biden administration is intent on militarizing AI before China does, much as the British and German admiralties raced to field dreadnoughts and in so doing set crucial context for the First World War. Whatever the operational rationale for 702 surveillance, the bulk data collection sure is convenient for training whatever AIs the NSA develops or contracts out for. That, I suspect, is the forest. The stuff in the Sullivan-Finer statement—about using 702 surveillance against Russkies, Chicoms, "fentanyl trafficking" and so forth—is the trees.

[Training large-language and image diffusion models only works, by definition, if you can just dump huge troves of data into them and extract generalizations from that data. If you have to carefully make sure every datum is acquired legally, these programs fall apart at the conceptual level. Better to change the laws to make the computers more comfortable, apparently.—Sam.]

This is a fateful step for Biden and the Democratic Party: they're advancing a legacy of bulk surveillance. You can read my book REIGN OF TERROR to track the 20-year development of that legacy. Donald Trump's need to explain away his criminal activity has made it useful to attack FBI surveillance authorities regardless of specifics, making it harder for Republicans to vote to retain those authorities. Anyone concerned about their freedom in an increasingly authoritarian political and economic climate should be exploiting that dynamic to the hilt in order to kill 702.

Biden, to no one's surprise, has cemented his stance as a champion of Security State prerogative. Through the decades-long weakening of the Democratic Party's ties to labor and its replacement with upper-middle-class technocracy, bulk surveillance can become Democratic catechism—its dangers always easy to explain away through cynical warnings about foreign threats, all while the people the Democrats claim to champion are its targets.  

If there's a silver lining here, it's that there won't be a frivolous debate over placing a warrant requirement on the FBI's ability to search through the 702 trove. Fifteen years of 702 history demonstrate decisively that the FBI will find ways to violate and lawyer such a requirement away. Now, at least, it really is an all-or-nothing choice between reauthorizing 702 and letting it die. And all Congress has to do to kill 702 is to do nothing, something it's great at.

SPEAKING OF MILITARIZED A.I., Alexander Karp, the CEO of Palantir, wrote an op-ed learning all the wrong lessons of Oppenheimer. His piece is a tendentious jeremiad against the Meredith Whitakers of Silicon Valley who sounded the alarm years ago about the dangers of developing AI for the Pentagon, thereby acting in the tradition of the Manhattan Project scientists who you see in the movie warning about the effects the bomb will have on civilization. Karp, the guy usually described as the liberal within Palantir (something I am earnestly willing to believe; see above item!) to distinguish him from the bossist Peter Thiel, is basically being a defense-sector pick-me. Palantir's data-dick is ready to be stroked by Pentagon AI cash.

All that seems easy to understand. Far less so is the decision by the New York Times to publish his op-ed in print not identifying him as the CEO of Palantir—just as the head of "a company that works with the U.S. Department of Defense." In the web edition, his Palantir affiliation is there, but in the print edition, which I happen to get delivered on the weekends, it was not. I don't know how you stray so flagrantly from the fundamentals of journalism, but the current Times opinion section is making the paper look mendacious.

JACK POULSON AND SAM BIDDLE have some real REIGN OF TERROR reporting for the Intercept about using open-source data tracking, honed through counterinsurgency, to persecute sex workers under pretext of saving them from being trafficked.

WALLER VS. WILDSTORM #3 is fully illustrated. In a couple days I'll do the lettering pass on it, which means I'll be reviewing and rewriting balloons and captions to make sure the rhythm of the dialogue aligns with the rhythm of the visual storytelling. If you thought the first two issues were talky, this is the issue where we detonate some powder kegs. Jesús Merino drew the hell out of this one. Go to your local comic shop this month and tell them to reserve you a copy of the issue, which drops on September 5.

THE SOUFAN CENTER'S Tuesday morning email blast on the coup in Niger faced an unpleasant fact that the Times' weekend takeout omitted:

While jihadi factions battle for control of territory and resources across various parts of the continent, African military juntas are seeking to use counterterrorism as leverage to obtain popular support against the West as their predecessors used to get economic and diplomatic support from the West. Western governments’ militarized approaches to countering global terrorist activities over the past two decades has empowered the same military leaders who are now spurning Washington and turning toward Moscow—not only in Niger, but in several other African states as well. Meanwhile, these warlords act in a rapacious manner, enriching themselves while further exacerbating the grievances of the local population, pushing them closer to jihadists groups or other violent non-state actors.

Other than that, great work, AFRICOM! Did I mention that REIGN OF TERROR is now available in paperback?

IT’S SAM. A guy I really admire, Paul Reubens, died yesterday.

We write a lot about the ideological structures that enable malicious prosecution—see Spencer’s excellent work above—but it’s worth observing the specifics in Reubens’ case. Because he was a very private person, because he was the host of a children’s show on CBS, Pee-Wee’s Playhouse, that made little kids happy by communicating the best parts of gay culture in a way that was transparently innocent, Reubens was hounded by Florida law enforcement his entire life, beginning in 1971 and persisting for more than thirty years.

His most notorious arrest, in 1991, came when sheriffs’ deputies testified that they had watched him masturbate in a theater showing Turn Up the Heat and Nancy Nurse. "Mr. Reubens was given no special consideration or treatment due to his celebrity status," the state prosecutor assured reporters who asked him whether Reubens’ plea deal was too lenient. That’s obviously not true. Prosecuting a guy for jerking off in a porno theater was special consideration.

I met Paul briefly on the red carpet for his brief revival of the Pee-Wee’s Playhouse live show when I covered Broadway a few years ago. He was very nice, and extremely anxious, and did the whole interview in character, and thanked me for playing along when I was done. (I asked him what was on the second storey of Pee-Wee’s Playhouse. He responded, as I’d hoped he would, “That’s for me to know and you to find out!”) He had a little entourage of downtown theater elder statespeople watching me and the rest of the press section like hawks as he advanced down the carpet. I recognized Joey Arias, the drag performer probably best-known for his perfect Billie Holiday impression (he’s also in Big Top Pee-Wee briefly). The entire production was bright and pleasant and engineered to appeal to an audience of progressive millennials and their children, but the veterans of the original show were watchful. They knew.

“Reubens was portrayed in the media not only as sordid, or sad, or unlucky (depending on your view of these things) but also as a betrayer of innocents, a virtual pedophile, thanks to some sloppy alchemy of the public mind,” Bruce Handy wrote in an excellent Vanity Fair profile of Reubens in 1999. I’ll go further: No alchemy was necessary, and that particular lobe of the public mind is nothing more complicated than the symbiosis between police departments anxious to further their own existence by appealing to voters’ most lurid fears; conservative politicians whose base only turns out when they’re frightened of a particular minority group; and newspapers anxious to print salacious details for which they cannot be sued. Cop shops and bigots give newspapers indictments, amicus briefs, and police reports. Newspaper columnists quote them uncritically and, when criticized for doing so, ascend to the highest possible dudgeon. Everyone goes home happy, except the people maligned and defamed in this cyclical process.

Reubens was ready for his next malicious prosecution, in 2002, but the damage had mostly been done. His turns on 30 Rock, What We Do in the Shadows and especially Mystery Men are all wonderful. But the genuine alchemy—the crucial counterweight to Reaganite bigotry and boorishness and child-hatred that his silly children’s show offered—was precious and irreplaceable. I hope his life inspires more people to be kind to little kids, and to affirm them despite the alliance between conservative politicians and their allies in the press that tries to crush them when they’re little and criminalize them when they’re grown. A lot has changed since 1991, but not that.