Former NSA General Counsel Robert Deitz, Who Rubber-Stamped Illegal Wiretap Program, Says All Felonies Should Be Prosecuted

I’m watching a CUNY conference on sources and secrets, which currently has a panel including Bob Woodward, Jane Mayer, and former NSA General Counsel Robert Deitz.

When asked whether he could think of a leak that had been damaging, Deitz said the exposure of the illegal (he called it “special”) wiretap program had been damaging.

Then, in the context of prosecuting leaks, Deitz argued that all leaks should be prosecuted, because they involve a felony violation of an oath (that’s not always true, but I’ll just accept that Deitz believes all felonies should be prosecuted). He went on to say, “How is it you put a line around this felony and not prosecute it?”

According to the 2009 Draft NSA IG Report, Deitz, on September 20, 2001, suggested to Alberto Gonzales they should consider modifying FISA (which was then being modified as part of the PATRIOT Act); he appears to have gotten no answer. On October 5, 2001 — having asked but not been permitted to read the underlying OLC authorization for it (Addington read him a few lines over the phone), having not participated in the drafting of the Presidential Authorization for it, and having given it just one day of legal review — Deitz said a program violating the exclusivity provision of FISA was legal. On October 8, Deitz briefed the analysts who would carry out this illegal program.

Deitz’ subordinates provided the only oversight of the program at first. (Later in today’s program he claimed the line between domestic and foreign intelligence was rigorously maintained.) To his credit, Deitz ultimately fought to have the Inspector General read into the program after it had operated for some months.

This is a man who provided the legal fig leaf for a patently illegal program (though the IG Report provides no details of Deitz’ actions for the March to May 2004 timeframe, when the program was even more illegal). This is a man who showed awareness of the legally correct way to do this — include this expanded program in PATRIOT — but nevertheless accepted and participated in not doing so.

And he advocates prosecuting every felony.

Perhaps before he talks about prosecuting journalists and their sources, he should consider his own role in encouraging felonies?

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

7 replies
  1. phred says:

    Tut tut, EW, when a member of the executive branch does something it is not illegal ; )

    At least as far as anyone can tell… Tricky Dick, he really understood executive power, eh?

  2. scribe says:

    He can come out and say that now because he figures the statute of limitations has run on his crimes and he got away with it clean.

  3. ArizonaBumblebee says:

    These bastards at the NSA have no shame and are totally ruthless. To them, the Constitution and the statutes on the books are like silly putty and can be manipulated or reinterpreted to fit their needs. And, unfortunately, they have had two presidents in their pocket to protect them when they engage in nefarious and potentially illegal and unconstitutional activities. What difference is there between President Obama and George W. Bush when it comes to these national security issues? Not much, really.

  4. GKJames says:

    What was the response of his audience? Seems to me, it’s no surprise that the fervor for prosecution is highly selective. Could it be that, in a process that’s become standard over the past decade — national security officials state US policy by giving speeches and making presentations — the audiences are consistently polite and accommodating, so that it’s never made clear to these guys how pathological they and the games they play have become? Deitz talks this way because no one tells him not to.

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