"Ever since the Church Committee hearings, we have been at bat with a one-ball, two-strike count on us, you know. We aren't taking close pitches."
So said National Security Agency Director Michael Hayden in 2001, when Vice President Cheney's staff asked the NSA to significantly expand the ambit of the agency's domestic collection using the president's inherent authorities, or duties, to protect the nation, which are spelled out in Article II of the Constitution.
David Addington, Cheney's chief of staff, thought that the NSA should use its technology to intercept emails and telephone calls sent from one domestic terminal to another, and was upset to learn that Hayden thought differently. That was a line he would only cross, deliberately, with court and congressional approval. Addington dropped the idea, but as we now know, the agency added to its portfolio a mandate to monitor suspicious communications that transited the border of the United States, and later began to collect reams of metadata in order to analyze it.
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Hayden wasn't being cautious just for the record: NSA's job was to collect foreign intelligence — to steal stuff, or purloin letters, real and digital, in order to provide policymakers with a decision advantage. The advantage the NSA provided was accurate information about what people who interacted with the United States said in private about their intentions; that gap between saying and doing, and the ability to predict action from it, allows the president of the United States to stay a step ahead.
This is a proposition that most of us don't question. It's black and white. Global terrorist networks, criminal conspiracies, nations like China that are strategic competitors, nations like Iran and North Korea that actively seek to damage U.S. interests and threaten the body of its people, spies, proliferators of weapons of mass destruction. These folks are legit targets.
But they are one type of target. The NSA also collects strategic intelligence. It must, because the United States does not have the freedom to act without consequences, and without, in many cases, the aid and acquiescence of allies. Make no mistake: For the NSA, giving the U.S. president valuable information to the exclusion of every other country and leader in the world is not a morally ambiguous goal. It's the goal. It's not controversial.
In order to map out out the geopolitical space within which the president will act, he needs to have solid intelligence, a good guesstimate, on what other countries are going to do and how they will respond to whatever he decides to do. The president wages war, conducts diplomacy negotiates economic treaties, imposes sanctions, and works to promote U.S. interests abroad. Strategic intelligence should inform all of these decisions, not simply those that involve the military.
It's one thing to say that the United States' actions don't always match up with the values we espouse, and that's true. When our hypocrisy is exposed, our moral authority wanes and our ability to maneuver is reduced.
It's quite another to assume that other countries are any purer. They never have been and probably won't be. Many are much purer than others, so the amount of resources the intelligence community devotes to harder strategic targets ought to correspond with how honest our allies are, or how little they deceive us. The egg comes before the chicken: How the hell can we figure out which allies are more reliable if we don't figure out the correspondence between public and private words and actions.
Of course, Brazil, France, Germany, and Mexico do exactly the same thing. They want their leaders to gain a decision advantage in the give and take between countries. They want to know what U.S. policymakers will do before the Americans do it. And in the case of Brazil and France, they aggressively spy on the United States, on U.S. citizens and politicians, in order to collect that information. The difference lies in the scale of intelligence collection: The U.S. has the most effective, most distributed, most sophisticated intelligence community in the West. It is Goliath. And other countries, rightly in their mind, are envious.
"The magnitude of the eavesdropping is what shocked us," former French Foreign Minister Bernard Kouchner told France Info radio. "Let’s be honest, we eavesdrop too. Everyone is listening to everyone else."
The difference, he added, is that "we don’t have the same means as the United States — which makes us jealous."
The political leaders of Germany and France are elected to pursue the interests of the people of Germany and France. Often, those interests align with ours. Sometimes they do not.
When war and peace are at stake, knowing that German Chancellor Angela Merkel means what she says about sticking to a particular course is very useful because it will help the president of the United States figure out how to balance what we should do with what Germany, in this case, can do and what the German political system will allow Angela Merkel to do.
When you look at how the information is gathered, the lines begin to blur. The same methods are often used regardless of the friendliness of the target, and our evolutionary altruism and instinctive guilt takes over: Should not we treat our friends better than our enemies? Implant code into the computer network used by the Chinese embassy in Washington, by all means. But attached a bug to the transatlantic secure fax lines of the European Union? It's icky.
It feels like we are treating the good guys with less respect than they deserve, because they are our friends and in most instances, they help us when we need help. Merkel and French President François Hollande may have a legitimate grievance; their uncomfortable reactions are not just meant for show. Perhaps there's been an unwritten agreement that the personal conversations of the heads of state were or are off-limits. Or perhaps they just assumed that, having been honest with the United States, the NSA would not see a need to target them, or would not, in any case, brag about it.
One genuine question: If information from these NSA operations ever made it into the President's Daily Brief, did the NSA identify the source? Do the authors of the PDB, realizing that the president doesn't need to know about every collection mechanism, and wishing to give him plausible deniability, leave out attribution? How often would an Angela Merkel mobile phone tap be cited in an intelligence report? And why wasn't a source this sensitive not better protected or more highly compartmented?
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