On the Meanings of “Dishonor” and “Hack”

The former NSA IG (and current affiliate of the Chertoff Group profiteers, though he didn’t disclose that financial interest) Joel Brenner has taken to the pages of Lawfare to suggest anyone trying to force some truth out of top Intelligence Community officials is dishonorable.

On March 12 of this year, Senator Ron Wyden asked James Clapper, the director of national intelligence, whether the National Security Agency gathers “any type of data at all on millions or hundreds of millions of Americans.”

“No, sir,” replied the director, visibly annoyed. “Not wittingly.”

Wyden is a member of the Senate Select Committee on Intelligence and had long known about the court-approved metadata program that has since become public knowledge. He knew Clapper’s answer was incorrect. But Wyden, like Clapper, was also under an oath not to divulge the story. In posing this question, he knew Clapper would have to breach his oath of secrecy, lie, prevaricate, or decline to reply except in executive session—a tactic that would implicitly have divulged the secret. The committee chairman, Senator Diane Feinstein, may have known what Wyden had in mind. In opening the hearing she reminded senators it would be followed by a closed session and said,  “I’ll ask that members refrain from asking questions here that have classified answers.” Not dissuaded, Wyden sandbagged he [sic] director.

This was a vicious tactic, regardless of what you think of the later Snowden disclosures. Wyden learned nothing, the public learned nothing, and an honest and unusually forthright public servant has had his credibility trashed.

Brenner of course doesn’t mention that Clapper had had warning of this question, so should have provided a better non-answer. Later in his post, he understates how revealing telephone metadata can be (and of course doesn’t mention it can also include location). He even misstates how often the phone metadata collection has been queried (it was queried on 300 selectors, not “accessed only 300 times”).

But the really hackish part of his argument is in pretending this whole exchange started on March 12.

It didn’t. It started over a year ago and continued through last week when Keith Alexander had to withdraw a “fact sheet” purporting to lay out the “Section 702 protections” Americans enjoy (see below for links to these exchanges).

The exchange didn’t start out very well, with two Inspectors General working to ensure that Wyden and Mark Udall would not get their unclassified non-answer about how many Americans are surveilled under Section 702’s back door until after the Intelligence Committee marked up the bill.

But perhaps the signature exchange was this October 10, 2012 Wyden letter (with 3 other Senators) to Keith Alexander and Alexander’s November 5, 2012 response.

On July 27, 2012, Alexander put on a jeans-and-t-shirt costume and went to DefCon to suck up to hackers. After giving a schmaltzy speech including lines like, “we can protect the networks and have civil liberties and privacy,” DefCon founder Jeff Moss asked Alexander about recent Bill Binney allegations that the NSA was collecting communications of all Americans. Wired reported the exchange here.

It was this exchange — Keith Alexander’s choice to make unclassified statements to a bunch of hackers he was trying to suck up to — that underlies Wyden’s question. And Wyden explicitly invoked Alexander’s comments in his March 12 question to Clapper.

In Wyden’s letter, he quoted this, from Alexander.

We may, incidentally, in targeting a bad guy hit on somebody from a good guy, because there’s a discussion there. We have requirements from the FISA Court and the Attorney General to minimize that, which means nobody else can see it unless there’s a crime that’s been committed.

Wyden then noted,

We believe that this statement incorrectly characterized the minimization requirements that apply to the NSA’s FISA Amendments Act collection, and portrays privacy protections for Americans’ communications as being stronger than they actually are.

This is almost precisely the exchange that occurred last week, when Wyden and Udall had to correct Alexander’s public lies about Section 702 protections again. 8 months later and Alexander is reverting to the same lies about protections for US Persons.

In the letter, Wyden quoted from Alexander again,

You also stated, in response to the same question, that “…the story that we have millions or hundreds of millions of dossiers on people is absolutely false. We are not entirely clear what the term “dossier” means in this context, so we would appreciate it if you would clarify this remark.

And asked,

Are you certain that the number of American communications collected is not “millions or hundreds of millions”? If so, then clearly you must have some ability to estimate the scale of this number, at least some range in which you believe it falls. If this is the case, how large could this number possibly be? How small could it possibly be?

Does the NSA collect any type of data at all on “millions or hundreds of millions of Americans”?

This last question was precisely the question Wyden asked Clapper 5 months later on March 12 (Alexander’s response in November didn’t even acknowledge this question — he just blew it off entirely).

As Wyden emphasized, Alexander is the one who chose to make misleading assertions in unclassified form, opening up the door for demands for an unclassified response.

Since you made your remarks in an unclassified forum, we would appreciate an unclassified response to these questions, so that your remarks can be properly understood by Congress and the public, and not interpreted in a misleading way.

In other words, Brenner presents the context of Wyden’s question to Clapper completely wrong. He pretends this exchange was about one cleared person setting up another cleared person to answer a question. But Brenner ignores (Wyden’s clear invocation of it notwithstanding) that this exchange started when a cleared person, General Alexander, chose to lie to the public.

And now that we’ve seen the minimization standards, we know just how egregious a lie Alexander told to the hackers at DefCon. It’s bad enough that Alexander didn’t admit that anything that might possibly have a foreign intelligence purpose could be kept and, potentially, disseminated, a fact that would affect all Americans’ communications.

But Alexander was talking to high level hackers, probably the group of civilians who encrypt their online communications more than any other.

And Alexander knows that the NSA keeps encrypted communications indefinitely, and with his say-so, can keep them even if they’re known to be entirely domestic communications.

In other words, in speaking to the group of American civilians whose communications probably get the least protections from NSA (aside from the encryption they themselves give it), Alexander suggested their communications would only be captured if they were talking to bad guys. But the NSA defines “those who encrypt their communications” as bad guys by default.

He was trying to suck up to the hackers, even as he lied about the degree to which NSA defines most of them as bad guys.

Brenner gets all upset about his colleagues being “forced” to lie in public. But that’s not what’s going on here: James Clapper and, especially, Keith Alexander are choosing to lie to the public.

And if it is vicious for an intelligence overseer to call IC officials on willful lies to the public, then we’ve got a very basic problem with democracy.


5/4/2012 Wyden and Udall ask Intelligence Community Inspector General how many Americans had their communications collected or reviewed

6/6/12 Classified NSA IG response on inability to count how many Americans caught in dragnet

6/15/12 IC IG public response to Wyden and Udall refusing to provide number of Americans caught in dragnet

7/26/2012 Wyden and Udall, plus 11 others, ask Clapper for estimate on dragnet, plus information on “backdoor access”

8/24/2012 Clapper response to Senators’ July 26 letter provides classified response, but objects publicly and inaccurately to “back door”

10/10/2012 Wyden-Udall letter to NSA Gen. Alexander asking about his unclassified comments made at DefCon

11/05/2012 Senators’ letter to Clapper pointing out he hadn’t answered two of their questions

11/13/2012 Alexander response to Wyden-Udall Oct. 10 letter trying to dig out of false claims made at DefCon

11/15/2012 Clapper response to Senators’ Nov. 5 letter saying he won’t provide any further information

6/25/2013 Wyden and Udall point out to Alexander false statements in fact sheet titled “Section 702 Protections”

6/25/2013 Alexander admits fact sheet inaccurate

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

22 replies
  1. What Constitution? says:

    Yeah, but gee, Marcy, how “effective” would Brenner’s withering decimation of those seeking to obtain truthful information have been if he had been required to weigh it down with “facts” providing “context”? That’s so very tedious and unreasonable — look how much effort you had to go through here to establish, beyond any doubt whatsoever, that Brenner’s attack is utterly devoid of any merit whatsoever? I mean, what are you assuming — that Brenner actually knew, or even now cares about, the actual facts surrounding the exchange? That would require intellectual effort and honesty, not to mention would not fit the profile of the premise he wishes to advance. Here you go, looking at “facts” to discern “reality” — when reality has, as you know, such a liberal bias.

  2. orionATL says:

    classic lawyerly misdirection. the critical issue is not “being fair” to a lying national secirity general,

    the critical issue is the american government spying on the american people,

    lying to the congress and the american people about that spying, and

    allowing that spying bureaucracy to violate the u.s. constitution in the most serious way possible.

    if brenner wants to continue to talk simple human behavior norms, then, in addition to “fairness” issues, he might wish to discuss violation of a publicly made promise, to whit,

    “… All officers of the seven Uniformed services of the United States swear or affirm an oath of office upon commissioning. It differs slightly from that of the oath of enlistment that enlisted members recite when they enter the service. It is required by statute, the oath being prescribed by Section 3331, Title 5, United States Code.[1] It is traditional for officers to recite the oath upon promotion but as long as the officer’s service is continuous this is not actually required.[2] One notable difference between the officer and enlisted oaths is that the oath taken by officers does not include any provision to obey orders; while enlisted personnel are bound by the Uniform Code of Military Justice to obey lawful orders, officers in the service of the United States are bound by this oath to disobey any order that violates the Constitution of the United States.[3]

    Text of the Oath[edit]

    I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.[1]…” (from wikipedia)

    here’s joel “i was always a novelist at heart” brenner in his own words:

    http://joelbrenner.com/bio/

  3. Keith Belton says:

    Focusing on narrow legalistic hairsplitting (done in secret) rather than basic constitutional issues is the road to technocracy. In Inglis 6/18 testimony, I have no doubt he is correct in that there are systematic, technical means of controlling access and use of the collected metadata, in line with whatever FEA/FISMA guidelines they have secretly implemented. Once the technical means of that control are approved, the broader constitutional issues become invisible and uncallable by the technocrats themselves. Thank you for calling them out.

  4. emptywheel says:

    @joanneleon: I’ve been hiking in that range. Stunningly beautiful place. And not all that well-traveled, at least it wasn’t in 1994 when I hiked it. Though that’s where NOLS is, so there are groups off trail throughout it.

  5. thatvisionthing says:

    I’ve been thinking about Cheney, the dark lords’ lord. Who would not testify under oath. Cannot remember the theory. Like, one branch of government (and which branch was he calling himself at that time?) could not be called upon to tell the truth to another branch of government. Would upset the Constitution, set a corrupting precedent. Maybe a red herring too? Because anyone testifying to Congress has to tell the truth anyway?

    Can anyone sort this out? Or maybe it’s all herrings?

  6. P J Evans says:

    We’re supposed to tell the truth to the government when it wants to know something, with the threat of fines or worse hanging over us, but the government can lie, cheat and steal from us with no penalties ever, for anyone on their side.

    Yeah, right, this is still a representative democracy. When rain falls up!

  7. C says:

    This is a well-honored playbook in politics as well as in other fields. We’ve already seen these plays run against Glenn Greenwald and Snowden, smearing them as biased or of dubious character (interesting to ask who really found his teenage anime profile). Now the securocrats are turning it against members of Congress. They used to do this quite regularly with Ron Paul calling him nuts and out of touch for questioning our militarization now I guess they figure Wyden can be treated the same.

  8. orionATL says:

    LAWFARE:

    ” where america’s authoritarians gather to perform mutually satisfying acts of sophistry to be lapped up by the corporate media”

  9. person1597 says:

    @C: I see… The paramilitary industrial metroplex sez: Don’t lobby against government panoptic authority! (NYT)

    “In November 2010, Mr. Mueller toured Silicon Valley and briefed executives on the proposal as it then existed, urging them not to lobby against it, but the firms have adopted a cautious stance.”

  10. C says:

    @person1597: Well yes. As Marcy noted the people accusing Wyden of being rude, like that freaking matters, are people who make money at this. The same was true with David Gregory and Greenwald. As others have noted immediately after asking Greenwald “Why shouldn’t you be in jail?” Gregory brought on a “defense expert” to talk about the harm caused. This expert was a lobbyist for arms manufacturers a fact that Gregory didn’t bother to disclose, perhaps he didn’t even know.

    Ultimately this is about power and profit and the lengths people go to suck up to it (such as David Gregory) or to protect it (as Clapper is).

  11. Snoopdido says:

    From the DNI’s website today – DNI Clapper Letter on Misunderstandings Arising from his March 12th Appearance Before the Senate Select Committee on Intelligence – http://www.dni.gov/index.php/newsroom/press-releases/191-press-releases-2013/889-dni-clapper-letter-misunderstandings-arising-from-march-12th-appearance-before-the-senate-select-committee-on-intelligence:

    “Dear Madam Chairman: Because of the charged rhetoric and heated controversy prompted by my response to a question Senator Ron Wyden asked me last March 12th during an unclassified threat assessment hearing before the Senate Select Committee on Intelligence, I am using this direct means of communication with you to set the record straight…

    http://www.dni.gov/files/documents/2013-06-21%20DNI%20Ltr%20to%20Sen.%20Feinstein.pdf

    The latest Clapper excuse for lying was (multiple choice):

    1. I’m hard of hearing.
    2. I’m suffering from a brain fart.
    3. I’ve been in this business for 50 years and I’m now senile.

  12. P J Evans says:

    @Snoopdido:
    Any one of those excuses should be sufficient to get him fired retroactively. Unfortunately, the people who hired him won’t admit he’s a liar.

  13. P J Evans says:

    Sort-of-OT
    The Bolivian official who’s visiting Europe had to land in Austria, after France and Germany refused passage because he might have had Snowden on board.

    It brought to mind the US sneaking the hit-run guy out of Pakistan on Kerry’s plane. (We’re so much more law abiding than those other countries.
    Yeah, right.)

  14. P J Evans says:

    @P J Evans:
    Correction: France and Portugal. There are hints that France, in particular, may have requested that the flight land for a search.

    Anyone want to bet that there weren’t hot electrons from DC to Paris?

Comments are closed.