The first Assistant Secretary for Policy at the United States Department of Homeland Security warned Congress on Wednesday that “hyped and distorted press reports” about the NSA’s terrorist surveillance programs “may cause us—or other nations—to construct new restraints on our intelligence gathering, restraints that will leave us vulnerable to another security disaster.”
Stewart A. Baker, in testimony before the House Judiciary Committee, said that when the story about the terrorist surveillance program known as PRISM broke, “reporters at The Guardian and The Washington Post made it look as if the NSA had direct, unfettered access to private service providers’ networks and that they were downloading materials at will.” But he said this was “hyped” in order to “spur a public debate about NSA surveillance.”
Baker added, “Actually, they didn’t just want to spur debate; they tried to control it—by withholding information from the public.” He said the press failed to emphasize the “minimization and targeting guidelines” adopted by the government and approved by the FISA court for this program.
Baker explained: “Snowden and his allies in the press had copies of the minimization and targeting guidelines; they surely knew that the guidelines made the programs look far more responsible. So they suppressed them, waiting a full two weeks—while the controversy grew and took the shape they preferred—before releasing the documents. Since no self-respecting reporter withholds relevant information from the public, it’s only fair to conclude that this was an act of advocacy, not journalism. Perhaps the reporters lost their bearings; perhaps the timing was controlled by advocates. Either way, the public was manipulated, not informed.”
He was referring to Glenn Greenwald of The Guardian and Barton Gellman of The Washington Post.
Yet, on the basis of these inflammatory and misleading reports, members of Congress such as Senator Rand Paul (R-KY) are trying to restrict the ability of the NSA to collect data and apprehend terrorists.
A story about Wednesday’s Judiciary Committee hearing, “Bipartisan House panel slams administration on surveillance” by Josh Gerstein in Politico, completely ignored Baker’s testimony and criticism of media coverage of the NSA. Gerstein told AIM he only had time to cover the first panel, which featured administration and government witnesses, and not the second panel, which included Baker and others. He thought Politico’s “media team” might be interested in Baker’s criticism of the press.
We wait for that story to appear.
Meanwhile, The Washington Post story, “Lawmakers of both parties voice doubts about NSA surveillance programs,” and The New York Times story, “Bipartisan Backlash Grows Against Domestic Surveillance,” covered part of the hearing but ignored Baker’s incisive criticism of the press.
Hence, the media are perpetuating the manipulation of the public through misinformation about the nature of the NSA terrorist surveillance programs. The entire hearing can be viewed on C-SPAN.
After 9/11, of course, the NSA and the FBI got new surveillance and investigative powers, and cooperation between them was increased.
The possible result of new restrictions on the NSA, Baker made clear, could be another catastrophic terrorist attack on America.
Baker, who also served as general counsel to the National Security Agency, essentially warned members of the committee not to panic in response to the misleading media coverage. He said that “civil liberties criticism all across the ideological spectrum,” including from such organizations as the libertarian Cato Institute, forced the Foreign Intelligence Surveillance Act (FISA) court in the 1980s to restrict the government’s use of information from NSA surveillance, imposing a “wall” between law enforcement and intelligence—and the result was 9/11.
But panic they did; as some Republicans joined the ranking Democrat on the committee, far-left Democratic Rep. John Conyers of Michigan, in criticizing the NSA’s programs.
As a result of the “wall” between law enforcement and intelligence, Baker explained, the FBI did not pursue two al-Qaeda operatives in the U.S. who planned the 9/11 attacks. He said, “I realize that this story is not widely told, perhaps because it’s not an especially welcome story, not in the mainstream media and not on the Internet. But it is true; the parts of my book that describe it are well-grounded in recently declassified government reports.”
Snowden’s disclosure about the NSA collecting telephone metadata (such as the called number but not the content for calls into, out of, or within the United States) was made in an “out of context” manner, in order to create the impression of a “troubling” overreach by government, he said. “But context is everything here,” Baker noted. “It turns out that collecting the data isn’t the same as actually looking at it.” In order to look at the data, the government request has to be deemed “relevant” under court-ordered rules.
The notion that the government is “seizing” millions of records without a warrant or probable cause sounds like a constitutional violation, he noted, but the Supreme Court has held that such records are not protected by the Fourth Amendment, since they’ve already been given to a third party.
He went on, “The Court has recognized more than half a dozen instances where searches and seizures are reasonable even in the absence of probable cause and a warrant. They range from drug screening to border searches. There can hardly be doubt that the need to protect national security fits within this doctrine as well, particularly when waiting to conduct a traditional search won’t work. Call data doesn’t last. If the government doesn’t preserve the data now, the government may not be able to search it later, when the need arises.”
“Today, law enforcement agencies collect several hundred thousand telephone billing records a year using nothing but a subpoena,” he said. “That means you’re roughly a thousand times more likely to have your telephone calling patterns reviewed by a law enforcement agency than by NSA.”
While warning against rash Congressional action to restrict the NSA’s terrorist surveillance powers, he noted that European nations and the European Parliament are now demanding, in response to Snowden’s disclosures, that surveillance be restricted in the name of civil liberties.
He commented that French President Hollande and the French interior minister criticized the United States for its surveillance programs in Europe, although the newspaper Le Monde “disclosed what both French officials well knew—that France has its own program for large-scale interception of international telecommunications traffic.”
“Practically every comparative study of law enforcement and security practice shows that the United States imposes more restriction on its agencies and protects its citizens’ privacy rights from government surveillance more carefully than Europe,” Baker testified.
He explained: “European regimes, by and large, offer far less protection against arbitrary collection of personal data—and expose their programs to far less public scrutiny. One recent study showed that, out of a dozen advanced democracies, only two—the United States and Japan—impose serious limits on what electronic data private companies can give to the government without legal process. In most other countries, and particularly in Europe, little or no process is required before a provider hands over information about subscribers.”
Another witness, Steven G. Bradbury, former head of the Department of Justice’s Office of Legal Counsel, said the NSA’s programs “are entirely lawful and are conducted in a manner that appropriately respects the privacy and civil liberties of Americans and the principles enshrined in the Constitution.”
Anti-NSA testimony came from Kate Martin of the Center for National Security Studies and Jameel Jaffer of the American Civil Liberties Union. These are groups that have been involved for decades in campaigns to restrict intelligence gathering by U.S. intelligence and law enforcement agencies. Not surprisingly, they found a sympathetic ear in Rep. Conyers.