Ben Wittes, Brookings Buck Naked

Ben Wittes tries to respond to my complaints that he continues to insist all of Congress had a way of knowing about the Section 215 dragnet program and its abuses — THEY ARE NAKED, Wittes proclaims over and over while accusing me of spewing a “storm of outrage.”

My case, remember, is based on two discrete facts, only one of which Wittes even tries to address in his rebuttal.

First, the 93 Representatives elected in 2010 were never provided access to the letter the Administration wrote, ostensibly to inform them about the dragnet so they could make an informed vote. Assuming that the 7 members of the House who were on the Intelligence and Judiciary Committees learned of the program, that still left 86 members of the House who never had an opportunity to read about the secret use of Section 215 and the gross violations of it. Of those, 65 voted in favor of the PATRIOT reauthorization.

Here’s how Ben responds to this, in the 28th paragraph of his response.

Ms. Wheel insists that the 65 freshman members of the House who were not provided the 2011 briefing [note his inaccurate portrayal of this fact]  might have swung the 250-153 vote for FISA reauthorization. She’s almost certainly wrong. On July 24, 2013, well after the public revelations of Section 215 bulk metadata collection hit the press and the butt-covering had begun, the House had the chance for a do-over. It voted on the Amash-Conyers amendment to halt NSA’s “indiscriminate” collection of telephony metadata. The House declined on a 217-to-205 vote to adopt it.

Ben presents evidence of a 33-vote swing at a time before the Administration released the notice letters or the White Paper that provided sanitized descriptions of the program abuses, or the Primary Order showing some other fairly troubling details of the program, to say nothing of the 2009 documents showing the government had enabled chaining four hops deep off of 27,090 approved selectors to find informants as well as terrorists, and claims it is proof that Members of Congress won’t change their vote based on full information about these programs. (At least one member has actually stated on the record he would now vote differently on Amash-Conyers given some of these more recent revelations.)

Ben’s argument remains the same then — pointing at votes that happen without full information about a program as proof that Congress supports that program. NAKED!

But Ben fails to even hint at the other critical fact here, the evidence we have about the briefings that those 83 and other House members had available, in spite of the fact he makes this assertion:

So we know beyond any shadow of a doubt that the administration wanted members to have certain detailed information about the program. We also know that there were a lot of briefings by that administration concerning this program to those same members [another false claim–all but two of the briefings were limited to Senators or Judiciary and Intelligence Committees] in the same time frame as the administration wanted those members to read that briefing paper.

Hmmmm. Wonder what they could have been talking about in those briefings….

It’s telling, here, that Ben doesn’t link to this post — which was a direct response to one of Ben’s other attempts to insist THOSE CONGRESSMEN ARE NAKED — nor to this one — which was still up on Emptywheel’s front page when I wrote this post and which quotes Ben’s NAKED post. That, in spite of the fact that Ben included this tweet among those he so courteously collected to support his assertion about my “storm of outrage” that he ignored the actual facts.

All of those would alert his readers to this detail, from one of just two out of the long list of briefings Ben posted that actually could have informed House members not on the Intelligence or Judiciary Committees. DOJ’s own account of what happened at the May 13, 2011 briefing — which Ben is sure adequately briefed those who attended about the dragnet — records this exchange.

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.

A Member of Congress — surely picking up on public details Ben recites as proof they had some way of knowing about the dragnet — actually asked a question that goes to the heart of the dragnet and its problems. Feingold says Section 215 has been abused. Has it? And in response, two members of the Administration, Valerie Caproni and Robert Mueller — the people Ben is certain “beyond any shadow of a doubt” wanted Members of Congress to be informed — say the FBI had no knowledge of abuse.

This, in spite of the fact that one of those abuses was that the FBI was directly accessing the dragnet database, in spite of the fact that Caproni was one of the first people briefed about the abuses on January 23, 2009, and in spite of the fact that Mueller submitted a declaration in support of an effort to get Reggie Walton to permit the government to start collecting and querying again after he had halted at least some of both because the abuses were so bad.

“To the FBI’s knowledge, those authorities have not been abused,” they said.

While Ben would presumably dismiss this Clapperesque prevarication as a dispute about vocabulary, most reasonable human beings could call it a lie. But, Ben insists, there’s not a shadow of doubt that the Administration wanted Congress to be fully informed about the program. Ben also insists, having been pointed to this evidence on multiple occasions, “To put the matter bluntly, any member who didn’t know what was going on, didn’t want to know.”

And no matter what you call Caproni and Mueller’s answer, it is proof that those briefings Ben is so sure were fulsome discussions of the program in fact stopped far short of even what was contained within the notice letters, which at least speak of “compliance problems.” There’s further evidence that the briefings didn’t even make mention of NSA, which would mean they didn’t even mention the secret application of 215, but we will have to await the further declassification to see what really went on in the briefings. We do know, however, in response to an attempt to learn about the abuses, the Administration lied rather than briefed.

So my case is based on two facts.

  1. Over 19% of the House had had no opportunity to read the letter describing the dragnet.
  2. The public evidence about the briefings offered instead prove those members had had no opportunity to learn about the abuses of the program (and possibly the program itself).

And all of that assumes that the terms of access, as granted by the Executive, were actually adequate to sustain a debate.

FISA Court Judge Dennis Saylor seems to think it’s not, as he recognized “the value of public information and debate in [Members of Congress] representing their constituents and discharging their legislative responsibilities” last week, in ruling that the FISC could release more of its opinions in response to an ACLU FOIA.

Ultimately, though, Ben’s case fails to even meet the terms Claire Eagan lays out in the shoddy opinion Ben loves so much. Eagan says,

The ratification presumption applies here where each Member was presented with an opportunity to learn about a highly-sensitive classified program important to national security in preparation for upcoming legislative action. [my emphasis]

Not only did the vast majority of Members have to go out of their way to learn about this program, 19% in fact had no way of learning everything they needed to know about it. Therefore, the ratification presumption fails, and that legal basis crumbles.

Now, I know Ben really wants to wish these actual facts away. I know Ben really wants to believe that this kabuki the Administration engaged in for years — both the very limited briefings in SCIFs without staffers and the failure to inform more generally — amount to democracy. I know Ben really wants to dismiss the outrage about these programs that are only now being revealed. But try as hard as he can, there are facts. And the facts — one of which he refuses to even look at (NAKED!) — prove him wrong.

14 replies
  1. klynn says:

    Thank you. I am amazed at how he is focusing a disinformation campaign against the facts you are presenting…He is simply showing that his resume does give him away…Brookings…Hoover…Just wonder when his non-ideological discussion of hard national security choices will actually happen?

    Rules of practice in being “non-ideological”: 1. He needs to cut his BS. 2. He needs to stop using an editorial and patronizing tone. 3. He must engage the facts, all the facts, in a honest discussion, not just some of the facts and shape his personal perspective as God’s word.

    When you write a blog that is described as “non-ideological” it means you write in a context of, “… unaffiliated with or unrelated to ideology.” When you write a blog that has an ideological bent but claim it is non-ideological, it appears your writing is serving a specific purpose that is not non-ideological.

    Additionally, if Wittes is honest about his blog discussing: 1) the use of law as a weapon of conflict and, 2) that America remains at war with itself over the law governing its warfare with others; the LAST writer I would be using a demeaning and patronizing tone in my writings as a tactic to taint another’s writing reputation to make my OPINIONS look rational and more insightful — is Marcy. Afterall she has one of these:

  2. emptywheel says:

    @klynn: I didn’t address his focus on Sensenbrenner. He DOES credit me with noting Sensenbrenner’s hypocrisy on this (though he only goes halfway).

    But he doesn’t think about what it means that I can both point to Sensenbrenner’s false claims AND point to these verified claims.

  3. klynn says:

    One more note…

    Really, Mr. Wittes… The Estimable Ms. Wheel? If you REALLY admire her, cut the bullcrap and just write, “Dr. Wheeler.”

    Not a cute writing stunt to pull…

  4. What Constitution? says:

    Wittes is quite the piece of work. But then, it’s hard to be an apologist without coming off as condescending. After all, it’s fairly implicit in “nothing to see here” to presume you are superior in your ability to accept and advocate the status quo and that those who disagree with you must therefore be charlatans and/or fools.

    Wittes opened his first piece about the most recent FISA opinion’s whitewashing of current practice by calling his own reporting “down and dirty” — in other words, he hasn’t really given this much thought, but he does think it sublimely important to raise a cheer. And Marcy took him to task for his slavish praise of sloppy rationalization — whereupon he replied that, well, yes, he (and FISC) was sloppy… but it didn’t matter because Congress was itself at fault if there was fault to need.

    What Wittes ignores is the fact there’s a debate going on now and, at the very least, Congress has a continuing obligation here. What the FISA judge just wrote was (1) the utterly unsurprising reiteration of essentially the same rationalizations presumably previously made and accepted as unilateral, ex parte and unchallenged arguments that the government has been advancing; (2)”supported” by weaving a “justification” based on the absence of previous congressional censure that was actually based on what, as Marcy has actually demonstrated, has been a less-than-forthcoming government presentation made in less-than-comprehensive fashion to less than all of Congress. For Wittes, that is all Congress’ fault — and to be sure, there certainly does appear a degree of congressional complicity in its own failure to fulfill its obligations. But Wittes goes further — he insists that if Congress can be faulted to any degree over the failure to rein in these programs, there is “nothing to see”. But that in no way renders the programs unchallengeably “correct”. Wittes scoffs at the existence of the current debate, and in so doing seeks to dismiss the debate happening now by suggesting the only possible time to have considered the viability of these programs has been “waived” by his assertion that Congress missed its chance. That’s stupid. Par for him, perhaps, but stupid. And Wittes’ effort to tar Marcy’s analyses isn’t just petty, it’s illuminating of the degree of desperation underpinning the condescending insistence that this new FISA opinion presents some sort of “answer” to all those who have a problem with the scope of the disclosures that are allowing people to actually start to comprehend the enormity of the spying apparatus that secretly is being used.

  5. Valley Girl says:

    You go girl, er… woman… I’ve followed most of the twitter exchanges his writings. If I were to say that what’s his name deserved this/ a swift kick in the balls, would that be too unladylike? Thanks as ever, Ms. Wheel.

  6. greengiant says:

    Brookings was captured by the neo-con neo-liberals long ago and far away. Just recall the cat-food commission.
    But this is good, you know you have some evil one’s attention when the minions start attacking you.
    As per Snowden they think they can withhold the truth by outlandish compensation. With that exception they are correct so far. When Snowden I or Snowden II reveals what they have been doing to keep the “trusted” workers in line the wheels may come off their cart.
    In the meantime, I suggest backing up your column offshore because the response in the past has been a court order that blocks the web site and deletes the content.

  7. Nic108 says:

    Wittes is a reliable supporter of whatever the Fatherland Security State wants. I don’t see any point in even engaging someone like that.

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