If Obama Wanted an 'Open Debate' on NSA Spying, Why Thwart One for so Long?

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If Obama Wanted an 'Open Debate' on NSA Spying, Why Thwart One for so Long?

The president asks us to trust him on government surveillance, yet his administration constantly denigrates critics as unpatriotic

Tim Cushing made one of my favorite points of [last] week in his Tuesday post "Former NSA boss calls Snowden's supporters internet shut-ins; equates transparency activists with al-Qaida", when he explained that "some of the most ardent defenders of our nation's surveillance programs" – much like proponents of overreaching cyber-legislation, like Sopa – have a habit of "belittling" their opponents as a loose confederation of basement-dwelling loners. I think it's worth pointing out that General Hayden's actual rhetoric is even more inflammatory than Cushing's. Not only did the former NSA director call us "nihilists, anarchists, activists, Lulzsec, Anonymous, twentysomethings who haven't talked to the opposite sex in five or six years", he equates transparency groups like the ACLU with al-Qaida.

I appreciated this post for two reasons.

First of all, it does a great job of illustrating a point that I've long made when asked for advice on communicating tech issues, which is that the online community is as diverse and varied as the larger world we live in. Of course, we are more likely to come across the marginal opinions of twentysomethings with social anxiety online because, unlike the larger world, the internet gives those twentysomethings just as much of an opportunity to be heard as a Harvard scholar, a dissident protesting for democracy or General Hayden himself.

Sure, it can be infuriating to read scathingly hostile comments written by troubled individuals who clearly didn't take the time to read the post you spent countless hours carefully writing (not that that has ever happened to me), but isn't one of the things that makes the internet so darn special its unwavering reminder that free speech includes speech we don't appreciate? Of course, that's a point that tends to get lost on folks – like General Hayden – who don't seem to understand that equating the entirety of the online world with terrorists is a lot like posting a scathing comment to a story without reading it. You can't expect someone to treat you or your opinion with respect – online or anywhere else – when you're being disrespectful. And I can imagine no greater disrespect for the concepts of transparency and oversight than to equate them with the threats posed by terrorist groups like al-Qaida.

But my main reason for singling out Tim's post this week is that Hayden's remark goes to the heart of what I continue to find most offensive about the administration's handling of the NSA surveillance programs, which is their repeated insinuation that anyone who raises concerns about national security programs doesn't care about national security. As Tim explains:

[This] attitude fosters the 'us v them' antagonism so prevalent in these agencies dealings with the public. The NSA (along with the FBI, DEA and CIA) continually declares the law is on its side and portrays its opponents as ridiculous dreamers who believe safety doesn't come with a price.

To understand why I find this remark so offensive, I should probably tell you a little about myself. Although the most identifying aspect of my resume is probably the six years I spent as US Senator Ron Wyden's communications director and later deputy chief of staff, I started college at the US Naval Academy and spent two years interning for the National Security Council. I had a top secret SCI clearance when I was 21 years old, and had it not been for an unusual confluence of events nearly 15 years ago – including a chance conversation with a patron of the bar I tended in college – I might be working for the NSA today. I care very deeply about national security.

Moreover – and this is what the Obama administration and other proponents of these programs fail to understand – I was angry at the administration for its handling of these programs long before I knew what the NSA was doing. That had a lot to do with the other thing you should probably know about me: during my tenure in Wyden's office, I probably spent in upwards of 1,000 hours trying to help my boss raise concerns about programs that he couldn't even tell me about.

Which brings me to my next favorite Techdirt post of the week, Mike's Friday post entitled "Don't insult our intelligence, Mr President: this debate wouldn't be happening without Ed Snowden", which is a much less profane way of summing up my feelings about the president's "claim that he had already started this process prior to the Ed Snowden leaks and that it's likely we would [have] ended up in the same place" without Snowden's disclosure. Obama said:

What makes us different from other countries is not simply our ability to secure our nation. It's the way we do it, with open debate and democratic process.

I hope you won't mind if I take a moment to respond to that.

Really, Mr President? Do you really expect me to believe that you give a damn about open debate and the democratic process? Because it seems to me, if your administration was really committed to those things, your administration wouldn't have blocked every effort to have an open debate on these issues each time the laws that your administration claims authorizes these programs came up for reauthorization, which – correct me if I am wrong – is when the democratic process recommends as the ideal time for these debates.

For example, in June 2009, six months before Congress would have to vote to reauthorize Section 215 of the Patriot Act, which the Obama administration claims gives the NSA the authority to collect records on basically every American citizen – whether they have ever or will ever come in contact with a terrorist – Senators Wyden, Feingold and Durbin sent Attorney General Eric Holder a classified letter "requesting the declassification of information which [they] argued was critical for a productive debate on reauthorization of the USA Patriot Act".

In November 2009, they sent an unclassified letter reiterating the request, stating:

The Patriot Act was passed in a rush after the terrorist attacks of 11 September 2001. Sunsets were attached to the act's most controversial provisions, to permit better-informed, more deliberative consideration of them at a later time. Now is the time for that deliberative consideration, but informed discussion is not possible when most members of Congress – and nearly all of the American public – lack important information about the issue.

Did President Obama jump at the opportunity to embrace the democratic process and have an open debate then? No. Congress voted the following month to reauthorize the Patriot Act without debate.

In May 2011, before the Senate was, again, scheduled to vote to reauthorize the Patriot Act, Senators Wyden and Udall, again, called for the declassification of the administration's secret interpretation of Section 215. This time, in a Huffington Post op-ed entitled "How Can Congress Debate a Secret Law?", they wrote:

Members of Congress are about to vote to extend the most controversial provisions of the USA Patriot Act for four more years, even though few of them understand how those provisions are being interpreted and applied.

As members of the Senate intelligence committee we have been provided with the executive branch's classified interpretation of those provisions and can tell you that we believe there is a significant discrepancy between what most people – including many Members of Congress – think the Patriot Act allows the government to do and what government officials secretly believe the Patriot Act allows them to do.

Legal scholars, law professors, advocacy groups and the Congressional Research Service have all written interpretations of the Patriot Act and Americans can read any of these interpretations and decide whether they support or agree with them. But by far the most important interpretation of what the law means is the official interpretation used by the US government and this interpretation is – stunningly – classified.

What does this mean? It means that Congress and the public are prevented from having an informed, open debate on the Patriot Act because the official meaning of the law itself is secret. Most members of Congress have not even seen the secret legal interpretations that the executive branch is currently relying on and do not have any staff who are cleared to read them. Even if these members come down to the intelligence committee and read these interpretations themselves, they cannot openly debate them on the floor without violating classification rules.

During the debate itself, Wyden and Udall offered an amendment to declassify the administration's legal interpretation of its Patriot Act surveillance authorities and, in a 20-minute speech on the Senate floor, Wyden warned that the American people would one day be outraged to learn that the government was engaged in surveillance activities that many Americans would assume were illegal, just as they were every other time the national security committee has tried to hide its questionable activities from the American people.

Fun aside: as you can see in the video, to underscore the point that hiding programs from the American people rarely goes well for the administration, I had my staff make a poster of the famous image of Oliver North testifying before Congress during the Iran-Contra hearing. I really wanted to replace North's face with the words "insert your photo here", but we didn't have the time.

Did President Obama welcome an open debate at that time?

No. Congress voted to reauthorize the Patriot Act for four more years and the only point we – as critics – could raise that might be confused with debate was a hypothetical argument illustrated with a 20-year-old picture of Oliver North. And, again, Senator Wyden couldn't even tell me what he was so concerned about. In strategy meetings with me and his intelligence committee staffer, I had to repeatedly leave the room when the conversation strayed toward details they couldn't share with me because I no longer had an active security clearance. "You know, it would be a lot easier if you could just tell me what I can't say?" I'd vent in frustration. They agreed, but still asked me to leave the room.

And that was just the Patriot Act. Did the president – who now claims to welcome open debate of his administration's surveillance authorities – jump at the opportunity to have such a debate when the Fisa Amendments Act came up for reauthorization?

No. Not only did the administration repeatedly decline Senator Wyden's request for a "ballpark figure" of the number of Americans whose information was being collected by the NSA last year, just a month after the Patriot Act reauthorization, the Senate intelligence committee attempted to quietly pass a four-year reauthorization of the controversial surveillance law by spinning it as an effort to "synchronize the various sunset dates included in the Foreign Intelligence Surveillance Act of 1978 to 1 June 2015." So, I guess if this was part of the administration's plan to publicly debate the NSA's surveillance authorities, the plan was for the debate to take place in 2015?

And, as I explained in an interview with Brian Beutler earlier this summer, that is just a fraction of the ways the Obama administration and the intelligence communities ignored and even thwarted our attempts to consult the public on these surveillance programs before they were reauthorized. In fact, after the Senate intelligence committee hearing in which Wyden attempted to close the FAA's Section 702 loophole, which another important Techdirt post this week explains, "gives the NSA 'authority' to run searches on Americans without any kind of warrant", I – as Wyden's spokesperson – was specifically barred from explaining the senator's opposition to the legislation to the reporters. In fact, the exact response I was allowed to give reporters was:

We've been told by Senator Feinstein's staff that under the SSCI's committee rule 9.3, members and staff are prohibited from discussing the markup or describing the contents of the bill until the official committee report is released. The fact that they've already put out a press release does not lift this prohibition.

That's right, supporters of a full-scale reauthorization of the Fisa Amendments Act put out a press release explaining why this was a good thing, while explicitly barring the senator who voted against the legislation from explaining his concerns.

Months later, the Fisa Amendments Act, which the administration contends authorizes its PRISM program, passed without the open debate that the president now contends he wanted all along. And again, I'm only touching on a fraction of the efforts just Senator Wyden made to compel the administration to engage the American people in a democratic debate. I, obviously, haven't mentioned the director of National Intelligence's decision to lie when Wyden "asked whether the NSA had collected 'any type of data at all on millions of Americans'". (By the way, given that Wyden shared his question with the ODNI the day before the hearing, I am highly skeptical that Clapper's decision to lie was made unilaterally.) Or the fact that the Obama administration repeatedly fought lawsuits and FOIA requests for, again – not sources and methods – but the Section 215 legal interpretation that the administration claims authorizes its surveillance authorities.

The below is an excerpt from a March 2012 letter that Wyden and Udall sent the Obama administration urging them to respect the democratic process:

The Justice Department's motion to dismiss these Freedom of Information Act lawsuits argues that it is the responsibility of the executive branch to determine the best way to protect the secrecy of intelligence sources and methods. Although this is indeed a determination for the executive branch to make, we are concerned that the executive branch has developed a practice of bypassing traditional checks and balances and treating these determinations as dispositive in all cases. In other words, when intelligence officials argue that something should stay secret, policy makers often seem to defer to them without carefully considering the issue themselves. We have great respect for our nation's intelligence officers, the vast majority of whom are hard-working and dedicated professionals. But intelligence officials are specialists – it is their job to determine how to collect as much information as possible, but it is not their job to balance the need for secrecy with the public's right to know how the law is being interpreted. That responsibility rests with policy makers, and we believe that responsibility should not be delegated lightly.

But, as Mike's last post on Friday explains:

President Obama flat out admitted that this was about appeasing a public that doesn't trust the administration, not about reducing the surveillance.

Mike's insight continues:

Even more to the point, his comments represent a fundamental misunderstanding of why the public doesn't trust the government. That's because he keeps insisting that the program isn't being abused and that all of this collection is legal. But, really, that's not what the concern is about. Even though we actually know that the NSA has a history of abuse (and other parts of the intelligence community before that), a major concern is that scooping up so much data is considered legal in the first place.

I'd go even further than that and argue that a big part of the reason the American people are having a hard time trusting their government is that the public's trust in government is harmed every time the American people learn that their government is secretly doing something they not only assumed was illegal, but that government officials specifically told them they weren't doing. Hint: when the American people learn that you lied to them, they trust you less.

I think it's hard for the American people to trust their president when he says he respects democratic principles, when his actions over the course of nearly five years demonstrate very little respect for democratic principles.

I think the American people would be more likely to trust the president when he says these programs include safeguards that protect their privacy, if he – or anyone else in his administration – seemed to care about privacy rights or demonstrated an understanding of how the information being collected could be abused. Seriously, how are we supposed to trust safeguards devised by people who don't believe there is anything to safeguard against?

I think it's understandably hard for the American people to trust the president when he says his administration has the legal authority to conduct these surveillance programs, when one of the few things that remains classified about these programs is the legal argument that the administration says gives the NSA the authority to conduct these programs. This is the document that explains why the administration believes the word "relevant" gives them the authority to collect everything. It's also the document I'd most like to see, since it's the document my former boss has been requesting be declassified for more than half a decade.

A reporter recently asked me why I think the administration won't just declassify the legal opinion, given that the sources and methods it relates to have already been made public. "I think that's pretty obvious", I said. "I believe it will be much harder for the administration to claim that these programs are legal, if people can see their legal argument."

I think it's hard for the American people to trust the president when his administration has repeatedly gone out of its way to silence critics and, again, treat oversight as a threat on par with al-Qaida. As another great Techdirt post this week – US releases redacted document twice … with different redactions – illustrates, many of the intelligence community's classification decisions seem to be based more on a desire to avoid criticism than clear national security interests. And as Senator Wyden said back in 2007, when then CIA Director Hayden (yes, the same guy who thinks we're all losers who can't get laid) attempted to undermine oversight over his agency by launching an investigation into the CIA's inspector general:

People who know that they're doing the right thing aren't afraid of oversight.

Which reminds me of the Techdirt post this week that probably haunted me the most: "Ed Snowden's email provider, Lavabit, shuts down to fight US gov't intrusion". Mike uses the post to explain that Ladar Levison, the owner and operator of Labavit – the secure email service that provided Edward Snowden's email account – decided to shut down his email service this week.

Not much more information is given, other than announced plans to fight against the government in court. Reading between the lines, it seems rather obvious that Lavabit has been ordered to either disclose private information or grant access to its secure email accounts, and the company is taking a stand and shutting down the service while continuing the legal fight. It's also clear that the court has a gag order on Levison, limiting what can be said.

The part that haunted me, though, was a line Levison included in his email informing customers of his decision:

I feel you deserve to know what's going on. The first amendment is supposed to guarantee me the freedom to speak out in situations like this.

He's right, isn't he? If these aren't the moments the first amendment was meant for, what are? Moreover, if the administration is so convinced that its requests of Labavit are just, why are they afraid to hold them up to public scrutiny?

In his book, Secrecy: The American Experience, former Senator Daniel Patrick Moynihan included a quote from a 1960 report issued by the House committee on operations, which I believe provides a far better response than anything I could write on my own:

Secrecy – the first refuge of incompetents – must be at a bare minimum in a democratic society for a fully-informed public is the basis of self-government. Those elected or appointed to positions of executive authority must recognize that government, in a democracy, cannot be wiser than its people.

Which brings me to my final point (at least for now): I think it's awfully hard for the American people to trust the president and his administration when their best response to the concerns Americans are raising is to denigrate the Americans raising those concerns. Because, you see, I have a hard time understanding why my wanting to stand up for democratic principles makes me unpatriotic, while the ones calling themselves patriots seem to think so little of the people and the principles that comprise the country they purport to love.

Jennifer Hoelzer

Jennifer Hoelzer is a writer, strategic communicator and consultant. A former deputy chief of staff for Senator Ron Wyden (Democrat, Oregon), she has since founded her own firm, IOC Strategies, Inc. Jennifer also writes for the blog Techdirt. Follow her on Twitter: @JIHoelzer

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