Former CIA and NSA Director Michael Hayden notoriously advocated for intelligence operators getting "chalk dust on their cleats." This cheerful analogy was designed to explain how spies know the rules of the game, and sometimes must run right up against them – or slightly over – to get the job done.
If intelligence agents are operating in an arena, then the fans got a slow motion replay this week.
New documents unveiled Wednesday offer what the NSA hopes is proof of how it keeps analysts and operators from stepping too far out of bounds.
The insights, following massive leaks from former intelligence contractor Edward Snowden, have raised yet more questions among an American public still trying to jive reports of 21st century spycraft with their inherent freedoms.
"There is a yawning divide between people who work in intelligence and everyone else," says John McLaughlin, who served as interim head of the CIA in 2004 after spending four years as the deputy director. "People don't understand NSA's mentality. They are meticulous about not invading someone's privacy."
The only real constituency that intelligence agents and analysts have is through congressional oversight committees allowed to receive classified briefings, he says. It's difficult for the American people to identify with agencies like NSA and CIA which, unlike the military, remain a mystery to the average citizen.
NSA acknowledged Wednesday that the technology it began using in 2008 had inadvertently tracked emails and other communications between innocent Americans. Documents the director of National Intelligence declassified include a 2011 ruling from U.S. Foreign Intelligence Surveillance Court – the secretive body that oversees intelligence agencies – which instructed the NSA to cease the practice and remedy the failings in its gathering efforts.
McLaughlin says this is largely due to "a revolution in technology."
"We need to get off the NSA's back here. They are dealing with the need to acquire communications intelligence in the midst of the greatest communications revolution in history," he says. "Why did it take three years to figure it out? I don't know. But I don't think they were sitting on it and hiding it and saying, 'We must not tell anyone.' I think they were figuring out what happened and how to fix it."
The kind of intelligence NSA gathers is the true foundation for all American intelligence agencies, he says.
Both critics and advocates of these practices point to the paradox of creating public oversight over a secretive organization. An intelligence official on Wednesday told reporters that the newly declassified documents would show "a sense of the really effective self-policing that goes on at the NSA." Intelligence agencies are required to root out and report wrongdoing, along with successes, to regular closed-door briefings with congressional oversight committees. At times, the court created under the Foreign Intelligence Surveillance Act will force the NSA or other spy agencies to change the way they carry out espionage.
Many government watchdogs believe there should be more.
"I don't think this is enough oversight," says Alan Butler, advocacy counsel at the D.C.-based Electronic Privacy Information Center. "The opinion that was released [Wednesday] was a pretty strong indication that it's not enough oversight."
Language in an Oct. 3, 2011 ruling illustrates the FISA court's concern over the NSA's ability to police itself.
"The court is troubled that the government's revelations regarding NSA's acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program," according to footnote 14 in the ruling.
It goes on to say that contrary to the government's assurances, NSA had been "routinely running queries of metadata using querying terms that did not meet the required standard for querying."
"This requirement had been 'so frequently and systematically violated that it can fairly be said that this critical element of the overall … regime has never functioned effectively.'"
Butler finds doubt in the NSA's claims that acquiring information on communication between innocent Americans was not intentional.
"They knew this was how the system worked," he says.
Releasing rulings such as this one should not require direction from the president, or criticism following wide-scale leaks, says Butler. He dismisses the argument from the intelligence community that releasing such information damages its ability to protect the country.
"Disclosing sources and methods is unwise," he says of the specific tools spy agencies use to gather intelligence. "Disclosing legal authorities is not the same thing."
"It's difficult sometimes to divorce the legal analysis from the sources and methods. At the same time, describing the general outlines of the programs that are in place is not the same thing as describing the particular sources and methods," says Butler.
But McLaughlin, now an instructor at Johns Hopkins University's School of Advanced International Studies, points to the danger of slowing down the NSA's efforts.
"The basic message we were getting [after Sept. 11, 2001] was 'Just do what you have to do to make sure this doesn't happen again.' That changed," he says. "And that [change] is taking hold. As suspicion and alienation toward the NSA is growing, the world of terrorism is growing dramatically."
This sense of urgency in 2001 was reflected in The Patriot Act, which loosened restrictions on intelligence gathering. President Barack Obama chose in 2011 to renew certain key tenets of the law covering surveillance. But this law, as EPIC's Butler points out, was designed to be temporary.
"On some level, we've always believed in some immediate, temporary response," he says. "I don't think we should ever forget that. There will always be circumstances where there is an emergency situation and we enshrine that into law constantly."
Al-Qaida's base of operations in Pakistan has now spread throughout the Middle East and North Africa – a region that is largely ungoverned except for urban capitals, and countries such as Israel and Iran, says McLaughlin.
"The task of getting on top of these groups and figuring out what they're doing has never been harder, in a way," McLaughlin says. The very idea of publicly discussing methods of oversight erodes the effectiveness of "what you do against the adversary."
"Faced with the kind of controversy that [NSA has] been dealing with, they have no choice but to be more forthcoming with information to make people feel more comfortable," the former deputy director says. "This forces them to be even more ingenious in their collection: On the level of actually penetrating adversary defenses, which will now be stronger, and on the level of doing it in a way that is perfectly pure and within the boundaries of any legal framework that is erected here."
"They'll have a tougher job," he says.