Corn has broken stories on presidents, politicians, and other Washington players. He's written for numerous publications and is a talk show regular. His best-selling books include Hubris: The Inside Story of Spin, Scandal, and the Selling of the Iraq War.
One of the sharpest government secrecy analysts in Washington, DC, is Steven Aftergood, who publishes the indispensable Secrecy News Blog, a daily report on all things related to the dark matter of the US government. So it's no surprise that Aftergood would have a keen take on the latest National Security Agency leaks and the ensuing controversy. With his permission, I've lifted his analysis and presented it below:
SECRET SURVEILLANCE AND THE CRISIS OF LEGITIMACY
In December 1974, when a previous program of secret government surveillance was revealed by Seymour Hersh in the New York Times, the ensuing public uproar led directly to extensive congressional investigations and the creation of new mechanisms of oversight, including intelligence oversight committees in Congress and an intelligence surveillance court.
The public uproar over the latest disclosures of secret domestic surveillance by The Guardian and the Washington Post [are] different [and] cannot produce a precisely analogous result, because the oversight mechanisms intended to correct abuses already exist and indeed had signed off on the surveillance activities. Those programs are "under very strict supervision by all three branches of government," President Obama said Friday. In some sense, the system functioned as intended.
Nevertheless, all three branches of government performed badly in this case, by misrepresenting the scope of official surveillance, misgauging public concern, and evading public accountability.
Official Dissembling and Misrepresentation
The executive branch has repeatedly issued misleading statements about its surveillance programs.
Sen. Ron Wyden asked DNI James Clapper at a March 12, 2013 hearing, "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"
DNI Clapper replied, "No, sir." He added, "Not wittingly. There are cases where they could, inadvertently perhaps, collect—but not wittingly."
That was not an accurate statement. Perhaps DNI Clapper misheard the question or misunderstood it, or perhaps he judged that denial was the proper course of action under the circumstances. But he did not correct the record, and the false statement was left standing. There is a price to pay in public credibility for such misrepresentation.
On other occasions, executive branch agencies promised declassification of information that they failed to deliver.
In 2010, the Justice Department and the Office of the Director of National Intelligence undertook to declassify opinions of the Foreign Intelligence Surveillance Court that contained "important rulings of law."
At her 2011 confirmation hearing to be DoJ National Security Division director, Lisa Monaco [told] Congress that "I will work to ensure that the Department continues to work with the ODNI to make this important body of law as accessible as possible...."
But no new Court opinions were ever declassified as a result of this initiative. "As accessible as possible" turned out to mean "not accessible at all." (Move to Declassify FISA Court Rulings Yields No Results, Secrecy News, May 29, 2012). Again, official words spoken in public were drained of meaning.
Suppressing Public Oversight
Congressional leaders have repeatedly blocked efforts to provide a modicum of new disclosure and accountability to government surveillance programs.
Some members of the House Judiciary Committee insisted last year that "The public has a right to know, at least in general terms, how often [this surveillance authority] is invoked, what kind of information the government collects using this authority, and how the government limits the impact of these programs on American citizens."
But when an amendment to require unclassified public reporting on these topics was offered by Rep. Bobby Scott (D-Va.), it was defeated 10-19. For the majority in Congress, the public does not have a right to know these things, not even in general terms. (Congress Resists Efforts to Reduce Secrecy, Secrecy News, August 6, 2012)
Modest amendments to the FISA Amendments Act offered by Senators Wyden, Udall, and Merkley that were intended to increase public reporting and awareness of the scale of surveillance were likewise blocked in the Senate, which renewed the Act without changes. (Intelligence Oversight Steps Back from Public Accountability, Secrecy News, January 2, 2013). Had these public accountability measures been incorporated into policy, a different future might have unfolded.
Of the three branches, the judicial branch seems least culpable here, since the Foreign Intelligence Surveillance Court, which provides a measure of judicial review of surveillance operations, can only operate within the parameters sought by the executive branch and granted by Congress.
But even here there are concerns about official excess, specifically with respect to the Court order issued by Judge Roger Vinson and disclosed by The Guardian which directed Verizon Business Services to surrender all metadata records of its customers' telephone calls.
"In our view, the Foreign Intelligence Surveillance Court simply lacks the legal authority to authorize this program of domestic surveillance," wrote Marc Rotenberg and colleagues at the Electronic Privacy Information Center. They asked Congress to take steps to investigate and clarify the situation.
"The Foreign Intelligence Surveillance Court ordered an American telephone company to disclose to the NSA records of wholly domestic communications. The FISC lacks the legal authority to grant this order," they argued.
The common thread underlying all of these deviations from political integrity and public consensus is unchecked official secrecy. Too much essential information on intelligence surveillance policy has been withheld from public access, thereby inhibiting public debate, precluding informed consent, and inspiring growing cynicism.
The appropriate response must include significant new declassification of surveillance policy and a thorough airing of the issues at stake. Over the weekend, DNI Clapper made some helpfulgestures in this direction. But more is needed, beginning with release of the Administration's legal interpretations of its surveillance authorities. In theory, everyone involved has an interest in restoring the credibility and effectiveness of an intelligence oversight system that has not lived up to public expectations.
"Now that the fact of bulk collection has been declassified, we believe that more information about the scale of the collection, and specifically whether it involves the records of 'millions of Americans' should be declassified as well," said Senators Wyden and Udall on Friday. "The American people must be given the opportunity to evaluate the facts about this program and its broad scope for themselves, so that this debate can begin in earnest."
Thomas Drake, a National Security Agency whistleblower who several years ago provided information to the press about fraud, waste, and privacy abuses at the super-secret spy agency and who was prosecuted for doing so, has a warning for Edward Snowden, the 29-year-old whistleblower who on Sunday outed himself as the source of the blockbuster leaks revealing two sweeping NSA surveillance programs. (The programs, as the Guardian and the Washington Post stories based on Snowden's leaks revealed, collected records of phone calls made by Americans and intercepted internet communications made by foreigners via US tech companies.) Drake says Snowden can expect to be targeted by the full force of the United States government. And Drake should know. The Justice Department pursued Drake fiercely, charging him with violating the Espionage Act—as if he had been a spy for a foreign power. Drake maintained that he had only conveyed unclassified information to a reporter. The government's case eventually fell apart, and it dropped the most serious charges. Drake accepted a deal, pleading guilty to a misdemeanor charge of misusing a computer. He served no prison time, but his career as a high-tech intelligence professional was over. Recently, he was working at an Apple store.
On Friday, before the identity of the newest NSA whistleblower was publicly known, I asked Drake what this person could expect. Both the Guardian and the Washington Post had revealed the existence of the internet-interception program called PRISM, and the Post referred to its source this way:
Firsthand experience with these systems, and horror at their capabilities, is what drove a career intelligence officer to provide PowerPoint slides about PRISM and supporting materials to The Washington Post in order to expose what he believes to be a gross intrusion on privacy. "They quite literally can watch your ideas form as you type," the officer said.
When I asked Drake what he thought would happen to the person who had revealed information on these surveillance programs, he focused on the Post's account and not surprisingly, noted in an email that the leaker would feel the full wrath of the US government:
What will happen to w'blower who handed over Prism program info to WP, given the unprecedented reprisals & prosecutions with this Admin to w'blowing?
Gov't is no doubt apoplectic behind the scenes - not just with w'blower but also with reporter and have already launched a major criminal investigation.
The info from Prism was increasingly showing up in the PDB [the President's Daily Brief, the top-secret and selective intelligence report he receives each morning].
They will move shadows and shades to identify the w'blower and turn the surveillance system inside out to find and fry him.
Gov't will burn with a decided white hot intensity of revenge and retaliation and start threatening big time even before finding the w'blower.
And when they find the w'blower the full wrath of administrative and bureaucratic punitive measures will descend on the w'blowers, because w'blowers threats the integrity of the NatSec state.
Obama is ferociously against unauthorized leaks and wants hard justice meted our against them - Chicago style.
Given Drake's experience and those of others who have been relentlessly prosecuted by the Justice Department for leaks, this is hardly an outrageous prediction. And Snowden is about to find out how right Drake might be.
In the midst of revelations that the government has conducted extensive top-secret surveillance operations to collect domestic phone records and internet communications, the Justice Department was due to file a court motion Friday in its effort to keep secret an 86-page court opinion that determined that the government had violated the spirit of federal surveillance laws and engaged in unconstitutional spying.
This important case—all the more relevant in the wake of this week's disclosures—was triggered after Sen. Ron Wyden (D-Ore.), a member of the Senate intelligence committee, started crying foul in 2011 about US government snooping. As a member of the intelligence committee, he had learned about domestic surveillance activity affecting American citizens that he believed was improper. He and Sen. Mark Udall (D-Colo.), another intelligence committee member, raised only vague warnings about this data collection, because they could not reveal the details of the classified program that concerned them. But in July 2012, Wyden was able to get the Office of the Director of National Intelligence to declassify two statements that he wanted to issue publicly. They were:
* On at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.
* I believe that the government's implementation of Section 702 of FISA [the Foreign Intelligence Surveillance Act] has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.
For those who follow the secret and often complex world of high-tech government spying, this was an aha moment. The FISA court Wyden referred to oversees the surveillance programs run by the government, authorizing requests for various surveillance activities related to national security, and it does this behind a thick cloak of secrecy. Wyden's statements led to an obvious conclusion: He had seen a secret FISA court opinion that ruled that one surveillance program was unconstitutional and violated the spirit of the law. But, yet again, Wyden could not publicly identify this program.
"When the government hides court opinions describing unconstitutional government action, America’s national security is harmed," argues the Electronic Frontier Foundation.
Enter the Electronic Frontier Foundation, a public interest group focused on digital rights. It quickly filed a Freedom of Information Act request with the Justice Department for any written opinion or order of the FISA court that held government surveillance was improper or unconstitutional. The Justice Department did not respond, and EFF was forced to file a lawsuit a month later.
It took the Justice Department four months to reply. The government's lawyers noted that they had located records responsive to the request, including a FISA court opinion. But the department was withholding the opinion because it was classified.
EFF pushed ahead with its lawsuit, and in a filing in April, the Justice Department acknowledged that the document in question was an 86-page opinion the FISA court had issued on October 3, 2011. Again, there was no reference to the specific surveillance activity that the court had found improper or unconstitutional. And now the department argued that the opinion was controlled by the FISA court and could only be released by that body, not by the Justice Department or through an order of a federal district court. In other words, leave us alone and take this case to the secret FISA court itself.
This was puzzling to EFF, according to David Sobel, a lawyer for the group. In 2007, the American Civil Liberties Union had asked the FISA court to release an opinion, and the court had informed the ACLU to take the matter up with the Justice Department and work through a district court, if necessary.
So there was a contradiction within the government. "It's a bizarre catch-22," Sobel says. On its website, EFF compared this situation to a Kafka plot: "A public trapped between conflicting rules and a secret judicial body, with little transparency or public oversight, seems like a page ripped from The Trial."
Before EFF could get a ruling on whether this opinion can be declassified and released, it had to first sort out this Alice in Wonderland situation. Consequently, last month, it filed a motion with the FISA court to resolve this aspect of the case. "We want the FISA court to say that if the district court says the opinion should be released, there is noting in its rules that prevents that," Sobel says. Then EFF can resume its battle with the Justice Department in federal district court for the release of the opinion. The Justice Department was ordered by the FISA court to respond by June 7 to the motion EFF submitted to the FISA court.
Currently, given the conflicting positions of the Justice Department and the FISA court, Sobel notes, "there is no court you can go to to challenge the secrecy" protecting an opinion noting that the government acted unconstitutionally. On its website, EFF observes, "Granted, it's likely that some of the information contained within FISC opinions should be kept secret; but, when the government hides court opinions describing unconstitutional government action, America's national security is harmed: not by disclosure of our intelligence capabilities, but through the erosion of our commitment to the rule of law."
As news reports emerge about the massive phone records and internet surveillance programs—each of which began during the Bush administration and were carried out under congressional oversight and FISA court review—critics on the left and right have accused the government of going too far in sweeping up data, including information related to Americans not suspected of any wrongdoing. There's no telling if the 86-page FISA court opinion EFF seeks is directly related to either of these two programs, but EFF's pursuit of this document shows just how difficult it is—perhaps impossible—for the public to pry from the government information about domestic surveillance gone wrong.
In recent months, the Republicans have been desperately hunting for an Obama scandal—with little success. A Benghazi cover-up? Oops, the emails released by the White House (at the urging of the GOPers) showed nothing improper. A Nixonian scheme to use the IRS to punish political enemies? The Treasury Department inspector general who investigated the IRS targeting of tea-party-ish groups seeking nonprofit status declared there was no evidence this political profiling was prompted by anyone outside the IRS division. With the revelation that the National Security Agency is sweeping up the telephone records of Americans suspected of no wrongdoing, though, the Obama gang may finally have a real scandal on its hand—not a scandal of wrongdoing or unethical conduct, but one of government overreach. Yet, as White House officials are already pointing out to reporters, if this is a scandal, it is a bipartisan scandal, for Congress has approved this wide-ranging, super-secret, domestic surveillance program.
More on the NSA's electronic surveillance program.
At issue is the disclosure of a highly classified court order—issued by a judge on the Foreign Intelligence Surveillance Court—that forced a Verizon subsidiary to hand over on a daily basis to the NSA call logs for all of its customers. This included calls between the United States and abroad and calls within the United States, including local telephone calls. The order does not cover the content of the communications; it compels the Verizon unit to give the NSA what's known as "metadata," such as the time, length, and location of calls—not the customer's identity. But the snoops at the NSA can use this data to look for patterns and check to see if any of these phone numbers are being used for communications to or from suspected terrorists.
The order does not permit Verizon to reveal its existence. And there's no telling if similar orders went out to other telecommunications companies.
Matt Kibbe speaking at the 2013 FreedomWorks Youth Summit in Washington, DC.
In the latest sign of turmoil at FreedomWorks, two prominent board members have resigned following the completion of an investigation they launched into possible misconduct within the conservative group, which has been an instrumental force in the tea party movement.
In December, these two board members, James Burnley IV and C. Boyden Gray, sent a letter to FreedomWorks president Matt Kibbe informing him that they had received "allegations of wrongdoing by the organization or its employees." They noted they had retained two attorneys, Alfred Regnery and David Martin, to conduct an independent investigation into the accusations. Burnley and Gray, both of them high-profile veterans of Republican administrations, ordered Kibbe to cooperate with the lawyers, to ensure that no records were "destroyed, deleted, modified or otherwise tampered with" and to send Regnery a check for $25,000 to cover his initial fees. The investigation followed several months of conflict inside the group that included the surprise resignation of FreedomWorks' longtime chairman, Dick Armey, a former Republican congressman and onetime House majority leader. Armey accused Kibbe of improperly using FreedomWorks resources to promote a book Kibbe had written.
After the investigation was launched, Kibbe penned a private memo—titled "Republican Insiders Attempt Hostile Takeover of FreedomWorks"—accusing Armey, Burnley, and Gray of being shills for the Republican establishment and undercutting the group's standing as an independent, nonpartisan, conservative organization. Kibbe maintained they were trying to punish him for defying their supposed effort to steer FreedomWorks into the conventional Republican fold. He claimed that the divisive fight within FreedomWorks was not really about his book contract or other organizational matters; it was about politics and control of a key right-wing resource.
The battle inside FreedomWorks produced bizarre tales of internal clashes and odd political intrigue. There was the story that Armey—who received an $8 million payout from a FreedomWorks board member to ease his departure—had shown up at the group's offices with a gun-wielding assistant to confront Kibbe and Adam Brandon, the organization's senior vice president. Armey maintained that this tale was hyped up by his FreedomWorks foes and that he had arrived at the office with a former Capitol Hill cop who had been volunteering his security services to Armey and FreedomWorks for years. In February, Mother Jonesbroke the news that FreedomWorks produced a promotional video last year that included a scene in which a female intern wearing a panda suit simulated performing oral sex on another intern who was wearing a Hillary Clinton mask. (The video was spiked after several staffers complained.) Former FreedomWorks officials have said that the place was in tumult, with employees departing or looking to leave.