Imagine the Administration Lying to Congress about the Dragnet

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In a piece bemoaning the possibility that the dragnet programs created in secret might be scaled back now that citizens know what they entail, Ben Wittes lets his imagination run wild.

Imagine you were a high-level decision-maker in a clandestine intelligence agency. Imagine that you had played by the rules Congress had laid out for you, worked with oversight mechanisms to fix errors when they happened, and erected strict compliance regimes to minimize mistakes in a mind-bogglingly complex system of signals intelligence collection. Imagine further that when the programs became public, there was a firestorm anyway. Imagine that nearly half of the House of Representatives, pretending it had no idea what you had been doing, voted to end key collection activity. Imagine that in response to the firestorm, the President of the United States—after initially defending the intelligence community—said that what was really needed was more transparency and described the debate as healthy. Imagine that journalists construed every fact they learned in light of the need to keep feeding at the trough of a source who had stolen a huge volume of highly classified materials and taken it to China and Russia. [my emphasis]

Now, Ben sets up a few straw men here: journalists may have gotten some details wrong, but they’re probably doing better on accuracy than the Agencies that have all the information at hand, which continue to tell easily demonstrable lies. He suggests Obama is interested in debate, abundant evidence to the contrary. He excuses the NSA’s compliance problems because of complexity, when they introduced that complexity to make programs do what they legally weren’t supposed to (for example, allowing illegal access via 3 other systems and by 3 other agencies and inventing a pre-archive archive to skirt the rules in the case of the phone dragnet program). He suggests the NSA played by Congress’ rules, when in fact the FISC sets rules, and it says the government has repeatedly violated those rules and “misrepresented” claims about doing so.

But those straw men are nothing compared to the claim that those in the House who voted to defund the phone dragnet were “pretending it had no idea what you had been doing.”

The record shows that the 2011 PATRIOT Act extension was passed with the support of 65 people — enough to make the difference in the vote — who had had no opportunity to learn about the Section 215 dragnet except at hearings that didn’t provide notice of what they would present. Moreover, the record shows that when someone at one of (the only one of?) those hearings asked a question specifically designed to learn about problems with the dragnet, here’s what happened.

Comment — Russ Feingold said that Section 215 authorities have been abused. How does the FBI respond to that accusation?

A — To the FBI’s knowledge, those authorities have not been abused.

Then FBI Director Robert Mueller and then-General Counsel Valerie Caproni (the Administration waited to release the dragnet materials Monday almost until the second Caproni got confirmed to lifetime tenure as a judge) gave that answer in spite of the fact that Mueller had to submit a declaration to Judge Reggie Walton to explain why the program was important enough to keep in spite of the many abuses. Walton ordered that declaration, in part, because the government’s explanations about their gross violations “strain[] credulity,” according to Walton. And one of the abuses involved FBI getting access to this data directly.

But FBI knows nothing, Colonel Klink.

And even in what notice the government made somewhat available to Congress (but which Mike Rogers did not pass on), it provided just a one paragraph description of the abuses that would take a page to lay out in skeleton bullet form.

In other words, the record shows that many of those who voted against the dragnet in fact had no idea what the government had been doing, both about the dragnet itself, and about the abuses of the dragnet program.

And note, when almost half the House voted to defund the dragnet, they still hadn’t been informed of the full extent of these abuses (because the Administration was withholding the relevant opinions).

Congress is moving to rein in a program that the Executive Branch operated illegally for 5 years, then operated with FISC sanction for 7 years while abusing the terms of that sanction for at least 3 years. In Wittes imagination, that’s a bad thing.

Update: Also note Valerie Caproni got briefed on these abuses January 23, 2009.

11 replies
  1. Rayne says:

    “…pretending it had no idea what you had been doing” — no need to pretend. This could be a form of victim blaming.

    It’s very clear that the technology deployed has been beyond the comprehension of most of Congress (or their staffers), can be easily mis-characterized for this reason. Most of Congress and staff don’t understand the challenges of Section 215 with regard to the legal issues as it is. Two (or more) administrations have amped up fear, uncertainty, and doubt in order to assure Congress signs on to whatever tools the intelligence community want to use in the purported effort to prevent terrorism. Fear alone has done a pretty good job of messing with representatives’ heads; uncertainty about the nature of the tools espoused, and doubts about measurable outcomes only ensure Congress will sign on.

    Pretend? Bah.

    I do love that pop culture reference, by the way, so apropos.

    For the youngsters among us born after 1980, see Sgt. Schultz here, of Hogan’s Heroes.

  2. peasantparty says:

    The bulk of Congress may not know much about the NSA, but I don’t believe they KNOW NOTHING! There are only a couple of imaginary things here.

    First is the fact that we have a fully competent and operating Congress/Government. (That is an imaginary tale.)

    The second is that they are happy the Jobless Recovery is going so well. They are so happy about it they approve the Militarization of police; because God Forbid we have an Egypt here in America! (Bedtime story at best.)

    Congress is so afraid of terror and terrorist attacks, they continue to fund and approve all these programs. (Campfire ghost story, yep!)

    The constant surveillance of every movement, purchase, conversation, and activity of innocent Americans has to be done. If not, the NSA, DHS, CIA, FBI, MILITARY, Police, and Government just can’t do it’s jobs.
    (There are Monsters under the bed.)

    Alexander, aka: Foghorn Leghorn, and Clapper, aka: Elmer Fudd together know more about keeping this country safe than any other humans on earth! (Comic Relief)

    There you go. The American people have to be watched because they might get upset over the largest wealth transfer in the history of time. The little people might throw cogs in the machine of profit and Empire. The peasants might get brave enough to revolt!

  3. peasantparty says:

    @Rayne: Yep. “Plausible Deniability”.

    “It’s not my fault. I knew nothing at all about it.”

    “Forget my votes. I really didn’t know what I was doing.”

  4. emptywheel says:

    @Rayne: Sure, but the VERY BASIC details that were withheld from Congress are stunning.

    Most of Congress would understand if you said, “database of all relationships in the US.”

    Which is why they weren’t given that very basic detail.

  5. What Constitution? says:

    Wittes’ whining piece is worthy of a full read, just in case anyone was wondering whether there are still people out there (other than people on the NSA or Booz Allen payrolls) who actually continue to insist that the existing systems shall not be questioned. And when reading it, when your eyes strain to find something less odious to look at on the page you might notice that Lawfare collects and reprints job listings that might be of interest to lawyers. Today there is this posting of a newly-available position:

    “ODNI-FISA ADVISOR: Support and act as back-up to the Senior Advisor on the Foreign Intelligence Surveillance Act (FISA) in advising the DNI, DDNI/II, MID on operational collection capabilities, and addressing shortfalls associated with current national-level intelligence priorities for foreign intelligence information collected under the FISA.”

    Interesting position and one that cries out for somebody who possesses a little perspective. And the question that Wittes’ post raises, once the existence of such an open job is noted, becomes “is this the cover letter for Wittes’ application?”

    May this position be filled with somebody intelligent and not wholly beholden to a philosophy based on sucking up to Clapper and Alexander.

  6. Rayne says:

    @emptywheel: But nobody in Congress had the smarts to ask, “Gee, how does this work?” and then follow that thread?

    The NSA, in the simplest terms, built a phonebook. Right on the face of it, that’s a relational database. These folks are organized under pizza, these guys are organized under hydrogen peroxide or whatever ties these people together relationally. I find it difficult to understand how members of Congress didn’t get this — unless they really do not understand the concept of relational databases.

    Or unless we are to believe Congress and all its staffers are incredibly stupid. @peasantparty has a point wrt plausible deniability, but for so many people to willing subscribe stretches, well, plausibility.

    EDIT — 1:12 pm EDT —

    Ugh, under the gun, but I have to point this out. The only thing that I might believe no one person in Congress understands is the reason why the NSA “built a phonebook” (relational database). If it can’t stop a terrorist attack even with supporting content from foreign governments, a la Boston bombing, what is the “phonebook” supposed to do for the NSA? That lack of understanding I can forgive, because it’s pretty unclear to some of the smartest people I know.

  7. klynn says:

    Oh Ben Wittes… you are addicted to reporting drama…

    What a disfunctional mess. Dysfuctional victims playing on both sides. Only our government could create a mess that has all the hallmarks of a victim triangle on a massive scale.

    There is an old saying…”If you are such a victim, why are you always at the scene of the crime?”

  8. emptywheel says:

    @Rayne: Sorry. Aside from Intell and Judiciary Committees, they didn’t even get that level of briefing. A significant chunk of Congress had had no way of learning about the very existence of the database.

  9. C says:

    OT(ish) but the confirmation of Valerie Caproni is yet another symptom of the real problem, the same problem that leads Larry freaking Summers to keep being promoted. In D.C. actual ability, actual legality, honesty, etc. These mean exactly dick. Instead all that matters is keepng the rubes (us) in line. Someone like Caproni broke her legal oaths and sanctioned illegal activities but unlike Snowden she just got a cushy lifetime gig meaning that we will be stuck with the consequences of her decisions skewing the judicial branch long after Obama is off retconning his memoirs.

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