Another Former NSA Lawyer Says He Wouldn't Have Listened To Concerns About The Agency's Surveillance Programs

from the blow-that-whistle-all-you-want,-there's-no-one-around-for-miles! dept

Fri, May 23rd 2014 1:09pm — Tim Cushing

Frontline's expansive report on the NSA in the wake of the Snowden leaks (United States of Secrets) has uncovered some rather amazing stuff about the agency's mindset. The post-9/11 decision to deflect every question or concern with conjecture about how "thousands of lives" will be lost if its programs are rolled back or altered in any way continues to this day -- rehashed in every government hearing and set of talking points since the leaks began.

"Live in fear" is the motto. Every question about domestic surveillance is greeted with nods to its legality and assertions that even acknowledging known facts about the NSA's programs gives our nation's enemies the upper hand.

This mindset snapped into place soon after the 9/11 attacks, effectively shutting down the few official routes that existed for whistleblowers. In his interview with Frontline, former NSA head counsel Vito Potenza recalled his "conversation" with a concerned employee. The matter at hand was the sacrosanct "Program," an audacious form of warrantless wiretapping that gathered the phone calls and internet communications of American citizens.

If he came to me, someone who was not read into “The Program,” right, and not a part of what we were doing and told me that we were running amok essentially and violating the Constitution and it was in that timeframe when there was an awful lot going on and we were all worried about the next attack, there’s no doubt in my mind I would have told him, you know, go talk to your management. Don’t bother me with this. I mean, you know, the minute he said, if he did say you’re using this to violate the Constitution, I mean, I probably would have stopped the conversation at that point quite frankly. So, I mean, if that’s what he said he said, then anything after that I probably wasn’t listening to anyway.

Potenza's words highlight the agency's paranoia. The fear of the next attack was used to mute any Constitutional concerns. The agency was now too busy to follow the nation's laws. This attitude has persisted and the agency has been the beneficiary of court decisions and legal loopholes that have stretched existing laws to fit the NSA's activities.

The whistleblower Potenza blew off was Thomas Drake, someone who ran into wall after wall in his attempt to go through proper channels with his concerns

[Drake] said he “confronted” Potenza “directly in the most direct language possible” saying “that NSA was violating the Constitution.” So, Potenza “knows the truth and chose to go with ‘The Program.’ And anybody questioning ‘The Program’ was a threat.”

The NSA didn't want to hear these concerns. Potenza states he told Drake to go to his manager. But Drake already had.

He appealed to Maureen Baginski, who was Drake’s superior and the third highest ranking official at the NSA. She balked at his concerns and told him to contact the Office of General Counsel and speak with the NSA’s lead attorney, Potenza.

All "proper channels" lead to dead ends. Potenza kicked Drake back to the same boss who sent him up the ladder to the General Counsel's office. It's little surprise Snowden exited not only the agency, but the country as well. There's no "proper channel" for whistleblowers -- at least not while there's still an ongoing War on Terror.

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Filed Under: ed snowden, legitimate channels, nsa, vito potenza, whistleblowing

24 Comments

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rw (profile), 23 May 2014 @ 11:59am

Unfortunately, it appears all the terrorist are in our government in Washington DC.
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Anonymous Coward, 23 May 2014 @ 1:18pm

The fear of the next attack was used to mute any Constitutional concerns.

I think the real fear in NSA is not stopping the next attack, which has been reinforced by the failure to stop the Boston bombing
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Anonymous Coward, 23 May 2014 @ 1:21pm

That would be a war of terror by our terrorist leaders
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Anonymous Coward, 23 May 2014 @ 1:35pm

Threat from within
I am terrified of my government trying to protect me from terror.
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John Fenderson (profile), 23 May 2014 @ 1:49pm

Re:
Potato, potahto. The real issue is how easily the NSA and it's supporters toss the Constitution aside in the name of fear.
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Anonymous Coward, 23 May 2014 @ 2:12pm

I read the lawyer's response as trying to protect himself as a member of the bar, not wanting to open himself up to liability.
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Mason Wheeler (profile), 23 May 2014 @ 2:20pm

Re:
...because outright admitting to ignoring serious concerns about the legality of your behavior is a good way to avoid liability?
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Anonymous Coward, 23 May 2014 @ 2:27pm

Re: Re:
Well if Clapper can be caught red-handed, blatantly commit a felony by outright lying to Congress on national television with absolutely no attempt to hold him accountable in anyway, then I would say he's pretty safe from having to face any legal liability there.
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That One Guy (profile), 23 May 2014 @ 2:41pm

Re: Re: Re:
Clapper's protected by his position and the self-interest of those that could or would go after him, however, when the heat comes down and people are looking for someone to blame, there'a always need for a few scapegoats, so any lawyer who wasn't a nice little 'see nothing, hear nothing, say nothing' employee would likely find him or herself under the crosshairs.
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Anonymous Coward, 23 May 2014 @ 3:00pm

Re: Re:
I'm talking about the lawyer and his license to practice law. He didn't want to hear about it because then he would have plausible deniability. So he said "go talk to your manager".
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afn29129 (profile), 23 May 2014 @ 3:14pm

Re: Re: Re: Re:
"any lawyer who wasn't a nice little 'see nothing, hear nothing, say nothing' employee would likely find him or herself under the crosshairs."... or anyone within a US spook agencies for that mater. This remind me of William Colby, a former CIA director for ages ago and how he was treated when he testified before Congress. There is even a theory that he was assassinated for his /spilling of the beans/.
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Anonymous Coward, 23 May 2014 @ 3:45pm

Re: Re:
The constitution is an incredibly dangerous text and infringes on the right of the state to efficiently protect the state. I am surprised it hasn't been banned yet!
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Lurker Keith, 23 May 2014 @ 4:16pm

The more I hear...
I was wondering if you'd comment on Part 2 of United States of Secrets. Wonder how many 1) Americans saw this & were outraged & 2) how many Congress-critters watched it & learned new things & were beyond outraged?

Anyway, the more I hear about how the Government was intentionally ignoring their Constitutional Violations (specifically the "I know nothing! Nothing!" stuff), the more I see correlations w/ Hogans Heroes. That is not a show's government you want to have your government comparable to. Much less on multiple levels... Idiots!
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Anonymous Coward, 23 May 2014 @ 5:21pm

Re: Threat from within
I'm not even joking when I say that I'm more afraid of my government and law enforcement officers than I am of any outside terrorist threat.
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Tom Stone, 23 May 2014 @ 8:55pm

We have abandoned the Rule of Law and the constitution, now all power flows from the King. Many wealthy and powerful people like this, not realizing that the Rule of Law from the Magna Carta on was primarily to protect THEM from both the arbitrary actions of the King and to also quiet the peasants. How safe are the assets of the Walton family without the Rule of Law? They have as much wealth as the bottom 40% of Americans combined...when, not if, a successor to our current "elected" King decides they want that wealth...oops.
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Anonymous Coward, 24 May 2014 @ 4:30am

"This mindset snapped into place soon after the 9/11 attacks"

No, Mr Cushing. Do some basic research before writing. TIA and secret rooms at AT&T started BEFORE 9/11. Not to mention Windows 95.
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Denver, 24 May 2014 @ 12:09pm

"There's no "proper channel" for whistleblowers -- at least not while there's **Perpetual War�**. "

Fixed
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Anonymous Coward, 24 May 2014 @ 12:55pm

Clapper, Hayden and Alexander are all criminals and should be prosecuted to the fullest extent of the law. If this were truly the United States of America in any way but name only, then they would have been prosecuted.

These people are very lucky they live in a country where the laws don't equally apply to every person (Clapper admitting to perjury). I am proud to say I never served in the military for such a country. Why should I have ever risked my life so that certain people could openly violate my constitutional rights, and face no consequences?
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chmrles133, 24 May 2014 @ 2:11pm

Re: Re: Re:
You are a coward aren't you!!
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OrganizedThoughtCrime (profile), 24 May 2014 @ 8:32pm

"Terrorism: the word that means nothing and justifies everything."

- Glen Greenwald
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Anonymous Coward, 24 May 2014 @ 9:12pm

NSA
9/11 has been used so often to justify the existence of the NSA, but let's be fair, it existed before in a different guise and proved just as ineffective at preventing anything as it does now.
Show me a single NSA success and I will tip my hat to you sir
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Joe, 25 May 2014 @ 4:34am

Re: The more I hear...
Really worry when we're the ones being compared to when somebody does something they really shouldn't.
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Joe, 25 May 2014 @ 4:44am

Re:
AKA the Soviet Indict. If you had that much money laying in just one egg basket (country), then you're an idiot and DESERVE to lose it all.
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Pragmatic, 30 May 2014 @ 6:58am

Re: Re: Re: Re:
@ chmrles133, your sarcasm detector is broken.
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