Stuart Taylor talked about his essay “The Big Snoop,” for the Brookings Institution. In the piece he profiled four national security experts and their views on the National Security Agency’s practices, and changes needed since former government contractor Edward Snowden’s disclosure of information gathering programs. Watch the video here.
The divergent views of four respected experts help frame the debate over the future of the NSA in the Snowden Era By Stuart Taylor, Jr. April 29, 2014 When Edward Snowden hit the send button on a laptop in Hong Kong last June, just shy of his 30th birthday, he became the poster boy for an acutely American conundrum: the tension between the government’s constitutional commitment to the privacy of individuals and its responsibility for the safety of the nation.
President-elect Obama’s announcement of his (mostly) stellar national security team coincides with the release this week of a bipartisan commission report with this chilling assessment of the most important challenge that team faces: "Without greater urgency and decisive action by the world community, it is more likely than not that a weapon of mass destruction will be used in a terrorist attack somewhere in the world by the end of 2013."
Perhaps the commission, former Defense Secretary William Perry, and other experts who have issued similarly dramatic warnings are crying wolf. Perhaps the likelihood of any terrorist group getting a nuclear bomb is "vanishingly small," as Ohio State political science professor John Mueller has forcefully argued. Or perhaps it’s closer to 30 percent over the next 10 years, as Matthew Bunn of Harvard’s Kennedy School estimated last month in "Securing the Bomb 2008."
Our way of life may well depend on catching nuclear or biological terrorists before they can strike.
Whatever the odds, if terrorists ever smuggle a crude, Hiroshima-sized nuke into, say, Manhattan, the immediate death toll could exceed 500,000. And the ensuing panic could threaten our constitutional system, spur evacuations of major cities, kill international trade, bring the worst economic depression in history, and perhaps usher in a new dark age worldwide.
This prospect puts into perspective the efforts of many human-rights activists, Obama supporters, and journalists to weaken essentially all of the government’s most important tools for disabling terrorists before they can strike.
A bipartisan congressional consensus seems to be emerging: First, the Bush administration’s eavesdropping program (or something like it) should be continued to try to avert Al Qaeda attacks. Second, such spying should be subjected to oversight by Congress and the courts, regardless of whether President Bush wants it to be.
What kind of oversight? And how should Congress update the Foreign Intelligence Surveillance Act of 1978 to deal with the unprecedented magnitude of the internal security threat posed by jihadists who covet doomsday weapons? If we get the answers wrong, we will end up with weaker defenses against terrorism, insufficient protections against the abuse of civil liberties, or both.
The most specific proposal so far is terrible — Senate Judiciary Committee Chairman Arlen Specter’s notion that Congress should ask the secret Foreign Intelligence Surveillance Court to weigh in on whether the program is constitutional. That would amount to a request for an advisory opinion on a broad matter of policy. Courts have spurned such requests since the dawn of the Republic. The reason is that their constitutional mandate is to resolve individual cases and controversies — not to help set broad policies, let alone to micromanage presidential spying on the enemy in wartime.
Specter aside, we need to adapt the judicial role in enforcing the Fourth Amendment ban on "unreasonable searches and seizures" to current realities. The courts have traditionally decided in advance (or, when speed is crucial, after the fact) whether the government has "probable cause" to target an individual for searching or electronic eavesdropping. But as Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit noted this Wednesday in a Wall Street Journal op-ed, this model is "hopeless as a framework for detecting terrorists," which amounts to "a search for the needle in a haystack."
I argue below that President Bush and his aides are twisting facts as well as law in their obsession with avoiding independent oversight of his warrantless electronic surveillance program. But I begin with three concessions.
First, the Foreign Intelligence Surveillance Act of 1978 is outdated. It bars and impedes some forms of electronic spying that may well be essential in an era of suicidal terrorists who seek doomsday weapons and are bent on mass murder.
Second, the president’s inherent constitutional power to protect the nation justified his authorization in the weeks after 9/11 (but not indefinitely) of a National Security Agency surveillance program that would otherwise have been a criminal violation of FISA.
Third, the administration may well be right in saying that leaks and media disclosures of classified information have done serious damage to national security in a few cases and possibly some damage in the case of Bush’s NSA program.
But is Bush credible when he claims that the leaking to and the disclosure by The New York Times on December 16 of aspects of the previously secret NSA program "puts our citizens at risk"? And was Attorney General Alberto Gonzales credible when he testified on February 6 that to submit to congressional regulation and judicial oversight would mean "effectively killing the program" by blowing secrets essential to its effectiveness — and that this view was the "consensus" of congressional leaders whom the administration had briefed?
I don’t believe them, except perhaps as to the inertness of some congressional leaders. And the Bush and Gonzales track records inspire no trust in their veracity. Especially when Bush suggests that the NSA program eavesdrops only on international communications involving "known Al Qaeda and/or affiliates" (emphasis added).
Libertarians and Democrats say that President Bush’s warrantless surveillance program is a clear violation of the Foreign Intelligence Surveillance Act. Bush and some impressive intelligence professionals say that the program is a vital early-warning defense against Qaeda terrorists and thus an exercise of the president’s inherent constitutional power to defend the nation; this power, they say, trumps any conflicting provisions of FISA.
Both sides are right. But both are wrong to spend their time bickering over the legality or illegality of what Bush has authorized the National Security Agency to do. They should be focusing on how to amend FISA to provide independent checks on abuse of the NSA program without compromising its effectiveness in preventing mass murder.
"FISA is outdated and inadequate and urgently needs reform to make it effective against the jihadist threat," says Philip Bobbitt, a Texas law professor and defense expert who held a high position in President Clinton’s National Security Council and is writing a book on the war against terror.
"The critics are insisting on rules that fly in the face of the strategic realities," Bobbitt adds. "But when the president secretly decides a measure is unconstitutional, and neglects to say so (much less why), he sacrifices the legitimacy that comes from public understanding of his decision and undermines our system of public consent."
Bobbitt is exactly right, on all counts. As to Bush, the man never consults Congress when he can make a grandiose claim of executive power instead. He sometimes seems to have forgotten that the goal is "fighting terrorism, not avoiding oversight," as my colleague Jonathan Rauch detailed in the January 7 issue of National Journal.
The telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be picked up by it; moreover, … he could be seen as well as heard. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. – George Orwell, 1984
Item: The pending Iran-Contra trial of Clair George, the former third-ranking official at the Li Central Intelligence Agency, will soon revisit a curious scene, through the words of a key prosecution witness:
George’s subordinate Alan Fiers (the witness) is summoned to an October 1984 meeting in the office of the late CIA Director William Casey. George and Oliver North are there. "Ollie," says Casey, "Alan tells me you’re operating in Central America. Is that true?" "No, sir," responds North. "Good," says Casey. "I want you to understand that you’re not to operate in Central America." Later, George tells an incredulous Fiers, "What you saw going on in there was a charade." The implication: North would continue operating in Central America, with Casey’s blessing.
Item: A Nov. 24, 1986, White House meeting is described as follows in Independent Counsel Lawrence Walsh’s indictment of former Defense Secretary Caspar Weinberger:
President Reagan and his top seven aides are discussing how to respond to the rapidly breaking Iran-Contra scandal. Attorney General Edwin Meese III tells the group that his investigation has concluded that the president had not been told of a possibly illegal 1985 arms shipment. Some or all of those present know this to be false. But nobody corrects Meese, who tells the nation a similar story the next day, at a nationally televised news conference.
Item: Toward the end of an April 15, 1973, meeting with President Nixon, White House Counsel John Dean was surprised when Nixon "got up out of his chair, went behind his chair to the corner of the Executive Office Building office, and in a barely audible tone said to me he was probably foolish to have discussed [E. Howard] Hunt’s clemency with [Charles] Colson." This led Dean to suspect that the office was bugged. (It was.)
Robert Freeman did some insider trading. John Poindexter deceived Congress. Fred Hagler helped another guy sell 2.3 ounces of crack.
They have two things in common: None deserves to go to prison. Yet all probably should-for a few months-to deter others from doing what they did.
But that’s not quite the way it’s going to turn out. And the differing prospects of these three men shed an unflattering light on our system of justice and our society’s moral sense of proportion.
Freeman, former head of arbitrage at Goldman, Sachs & Co., was sentenced April 17 to four months (plus a $1 million fine) for seeking inside information about a pending takeover and using it to unload $500,000 in options.
Poindexter, convicted April 7 on five felony counts of false statements to Congress and obstruction of its investigations into the Iran-Contra affair, faces a theoretical maximum of 25 years.
But he will probably get two years or less-and maybe no prison time at all, like his co-conspirators Robert McFarlane and Oliver North.
Fred Hagler acted as middleman between a small-time drug dealer and buyers (who turned out to be undercover operatives), and attended the sale. He was sentenced in April to 20 years, without parole.
A 37-year-old father of three, he will be locked up until at least 2007, and that’s if he earns all possible good-time credits. But for an unusual break he received from the prosecution, Hagler would have faced a congressionally mandated minimum prison term of life without parole.
Courtroom of the Absurd
This for a doer of odd jobs who eked out a meager existence with his common-law wife and children in a Los Angeles ghetto, a man who was wiretapped asking a customer for a $60 loan so he could go "down to Toys-R-Us" to buy his little boy a birthday present.