Former NSA Lawyers Attack Senator Wyden For Hinting At NSA Surveillance Excesses That Are Now Confirmed

from the secrecy-at-all-costs dept

For many, many years we've covered Senator Ron Wyden's seemingly quixotic attempts to signal to the American public (and press) that the NSA was doing a hell of a lot more surveillance than most people believed, even those who were carefully reading the laws. Because secrecy rules meant that he couldn't directly reveal what he'd learned while on the Senate Intelligence Committee, he had to issue vague statements, documents and speeches hinting at things that were going on that he couldn't actually talk about. Of course, now that Ed Snowden leaked a bunch of documents, it's shown that Wyden was absolutely correct in what was going on (and that the American public wouldn't like it).

You'd think that would lead people to have a lot more respect for the incredible efforts he went through to alert people to these issues without breaking the secrecy laws. And, in fact, many more people are aware of those efforts. The Washington Post has a nice article about Wyden's attempts to bring these issues out and to get a real debate going on them.

However, towards the end, the reporter talks to two different former top lawyers at the NSA, who both appear to be really, really angry about Wyden daring to suggest to the public that the NSA wasn't playing straight with the American public. First up, we've got Stewart Baker, the former NSA General Counsel and top Homeland Security official, who is so anti-civil liberties and pro-surveillance that he's almost a caricature of himself -- including claiming that the Boston bombings prove that Americans need less privacy and that civil libertarians complaining about too much surveillance are the real cause for the September 11 attacks.

Not surprisingly, Baker is not at all happy about Wyden's efforts:

"I would characterize what he's been doing as trolling for leaks. And hinting at the kinds of leaks that he wants to see," said Stewart A. Baker, a former official at the NSA and the Department of Homeland Security. "He's directed everybody's attention — who didn't sign the oath that he signed — to places where they might look."

Oh really now? These "leaks" wouldn't be necessary if the NSA and its lawyers weren't reinterpreting the law to collect the data on every phone call Americans make. He wasn't "trolling for leaks," -- he was alerting the American public to the sneaky tricks that the NSA has been using to violate the 4th Amendment and collect massive databases on Americans.

Another former NSA lawyer is also quoted in that same article attacking Wyden for his (now infamous) questioning of James Clapper, in which Clapper flat out lied to Wyden, saying that it was untrue that the NSA collects information on millions of Americans.

This tactic has been criticized by people close to the intelligence community. Joel F. Brenner, a former NSA senior counsel, called it a "low dishonorable act" in a recent post at the blog Lawfare. Brenner objected to Wyden "putting Clapper in the impossible position of answering a question that he could not address truthfully and fully without breaking his oath not to divulge classified information."

Really? A "low dishonorable act" for asking a rather basic question of the Director of National Intelligence? No, I'd argue that collecting data on every single American's phone calls is a "low dishonorable act." Furthermore, I'd argue that flat out lying to Congress about that collection of data is a "low dishonorable act." But asking the Director of National Intelligence for a straight up answer on what the NSA is doing, which clearly contradicts the plain meaning and intention of the Patriot Act? That's not a "low dishonorable act" at all. As for the claim that this put Clapper in an "impossible position," that's clearly untrue. Clapper could have easily noted that he had answered (or that he would answer) in a classified manner if there really was a legitimate reason for that info to be classified (of course, there never was such a reason).

These attacks are really incredible, and show the lack of shame these former NSA lawyers have. The revelations from Snowden have made it clear that Wyden was doing a real public service, in highlighting massive abuse by the NSA, and now that's public. These lawyers may not like that it's public, but that's not Wyden's fault. The information was going to come out at some point no matter what. Wyden himself points out that this was never a dirty trick, but just exactly what Congress is supposed to be doing in its oversight job:

"You can't do vigorous oversight if the leaders of the intelligence community are misleading the American people, and Congress, in public hearings," Wyden said.

This is obviously true, but the likes of Stewart Baker and Joel Brenner apparently believe that no one in the government -- even those in charge of overseeing the NSA efforts -- should be allowed to call out the NSA for its abuse because that might actually lead to proof that the abuse existed. In other words, they want no actual oversight at all.

Filed Under: joel brenner, nsa, nsa surveillance, ron wyden, stewart baker