Last week the New Yorker’s Ryan Lizza put out a long (loooooong) history of the NSA’s surveillance programs since 9/11. It’s a great primer for anyone who hasn’t followed the Snowden releases closely. For those same people, I want to add a little context and analysis, trying to pinpoint what’s new, what he missed, and what conclusions we can draw.

What’s New
In broad strokes, Obama’s drift on security issues is not news. He went from being a Senator opposed to the broadness and maleability of the Patriot Act to a President who fully leverages those qualities in defense of drone strikes and domestic surveillance. The novelty in Lizza’s piece comes from details of the time surrounding Obama’s inauguration, which show how abruptly that transformation occurred.

Lizza explains that the NSA’s phone-metadata collection program (the one revealed in Snowden’s first leak) was on life support in the winter of 2009. The crux of the issue was determining when the NSA was allowed to dip into its ocean of collected metadata:

"The N.S.A. was supposed to search its archive of metadata only after it had determined that there was a “reasonable, articulable suspicion”—ras—to believe that the phone number or other search term was related to terrorism. Ras was the thin wall between a legal program with some oversight and one with the potential for domestic spying and tremendous privacy violations…. Since 2006, in numerous filings before the fisa court, the N.S.A. had falsely sworn that every search term was ras-approved. The agency had built a list of some eighteen thousand phone numbers and other search terms that it continuously checked against the metadata as it flowed into the N.S.A.’s servers. Of these, it turned out, fewer than two thousand had legal legitimacy.”

A judge on the FISA court, which oversees surveillance programs (its rulings are usually a secret), found that the NSA had misled the court and severely overstepped its authorizations. He was ready to shut down the program entirely. Administration lawyers asked Obama what he wanted to do about it.

Two weeks later, Matthew Olsen, a lawyer in the Justice Department’s National Security Division, filed a brief asking the court not to change anything about the NSA authorizations regarding phone-metadata collection. The FISA judge added a few new nominal requirements to the NSA’s accountability process, but accepted the administration’s request. The phone-metadata collection survived and remained secret.

As far as I know, this is the first public disclosure of any major challenge to the NSA programs prior to Edward Snowden’s leaks. The fact that the FISA court, which is seen by many to be an automatic rubber stamp on any NSA request (I once had a former Senate Staffer for the 1975 Church Hearings tell me that the NSA actually insisted on FISA oversight, as a legal cover) was on the verge of shutting down a major operation shows just how egregious the NSA must have been in flaunting the law.

What he missed
Lizza’s piece focuses on the legality of the NSA’s collection of domestic phone-metadata, which is just one of an unclear number of surveillance programs at the agency. He avoids in their entirety a few categories that he doesn’t have time for, but they’re worth mentioning in brief here.

1) International collection of all kinds of security information. This is obviously the least controversial of the NSA’s furtive action because it’s what the agency was built for - tracking international security threats to the US. However, millions of citizens in Europe and South America might be upset to know that the NSA has their data, despite the fact that all those millions of people are obviously not terrorists.

2) International collection of economic data. In public, the NSA justifies all of its actions as necessary weapons in the fight against terrorism. Some international leaders think they’re up to something entirely different, like the President of Brazil who accused the NSA of vacuuming up all kinds of data "often of high economic and even strategic value” about her citizens. Basically, economic espionage.

3) Recent fall out. A major part of the NSA story since the leaks this summer has been the fight that has erupted between journalists, government officials and other journalists. A skimming of the headlines over Glenn Greenwald’s byline at The Guardian will give you a pretty good idea: some journalists accusing others of being megaphones for the security state, the UK and US government detaining reporters for their reporting, lawmakers and intelligence agents calling for the legal prosecution of journalists for doing journalism.

Beyond those major categories, there are aspects of the NSA’s activities that Lizza explores, but not very well, at least according to Marcy Wheeler. These include the NSA’s efforts to bypass the security systems of major internet companies— efforts that may make that internet data more vulnerable to other, (more?) nefarious hackers. This is a subject I don’t understand well myself, but I trust Wheeler’s instincts. She is the independent expert the experts don’t want you to know about. For readers willing to get into the weeds on legal and technical details of the surveillance state, there is no better resource than Wheeler’s blog, emptywheel.net.

Conclusions
A few themes emerge from Lizza’s piece. One is the tension between the NSA officials, who are under the (perhaps nominal) command of the executive branch, and the lawmakers responsible for keeping them in check. Lizza focuses heavily on Oregon Senator Ron Wyden, who has been fighting for transparency in the NSA for years. Some of the details about the efforts the NSA has made to keep even the Senate Intelligence Committee in the dark are stunning. A common and confusing line of argument I’ve heard from acquaintances goes something like this: don’t blame the NSA for doing their jobs. Everything they do is legal and overseen by congress. Congressmen don’t even show up to security briefings so it’s really their fault anyway.

First of all, poor performance by congressional overseers would not make me feel better about the NSA spying on American citizens. But it’s clear from Lizza’s piece that is not the problem anyway. The NSA’s public hearings are useless. Full of lies and evasions. More details on the agency’s spying are unveiled to the Oversight Committees, but those are classified hearings he Senators are legally forbidden from discussing. That is not a good-faith effort at transparency.

Following from that discussion is another refutation of NSA apologists. Many officials, including Senators and the President, have claimed that Edward Snowden should have gone through official whistle-blower channels or that he should now return from abroad to accept the US court system’s decisions on his action. The fact that he did not and has not, according to this argument, proves that he has treacherous motives, is out to destroy the United States, or can be dismissed as a coward.

First of all, that’s an ad hominem attack that only serves as a distraction from the substance of his revelations. Second, I think it’s clear from Sen. Wyden’s story that the suggestion is ludicrous. A Senator on the Intelligence Committee has been fighting to have a small part of the NSA’s legal interpretations made public for about 10 years. And he’s gotten nowhere against the massive and secretive surveillance apparatus. The idea that Edward Snowden, an anonymous NSA contractor, could have taken his concerns through official channels and gotten a fair hearing is an absurdity worthy only of surveillance state logic.