NSA deception: When government lies, democracy dies

NSA deception: When government lies, democracy dies

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2013 Rally against mass surveillance - Images by Stephen D. Melkisethian http://www.flickr.com/photos/stephenmelkisethian/
2013 Rally against mass surveillance - Images by Stephen D. Melkisethian http://www.flickr.com/photos/stephenmelkisethian/

WASHINGTON, May 21, 2014 — Without trust in the unelected officials who run government programs, it is impossible for our elected representatives to conduct public business in a manner that instills in the public a sense of trust or legitimacy.

Revelations about government surveillance programs, and the inaccurate statements made by public officials about them, some under oath, indicate that we have a serious problem.

In 2012, the top lawyer in the U.S. intelligence community made a rare public appearance and pointed out that much of the information being distributed about government surveillance programs was wrong:

“A lie can get halfway around the world before the truth gets its boots on,” said Robert Litt, citing a line attributed to Mark Twain. “Unfortunately, there’s been a lot of misinformation that’s come out about these programs.”

Litt, general counsel for the Office of the Director of National Intelligence, was talking about news organizations. But details have emerged from the exposure of hundreds of pages of previously classified NSA documents indicating that public statements about these programs by senior U.S. officials have often been misleading, erroneous, or simply false.

The same day that Litt spoke, the NSA removed from its web site a fact sheet about its collection activities because it contained inaccuracies discovered by lawmakers.

A week earlier, President Obama said that oversight of the surveillance program was “transparent” because of the involvement of a special court. “It is transparent,” Obama said of the oversight process. “That’s why we set up the FISA court.”

A remark by Director of National Intelligence James Clapper, Jr. drew the most attention. During a congressional hearing in March, Sen. Ron Wyden, D-Ore., asked whether the NSA collected data on millions of Americans, Clapper, under oath, replied, “No, sir.”

According to the Washington Post, “an examination of public statements over a period of years suggests that officials have often relied on legalistic parsing and carefully hedged characterizations in discussing the NSA’s collection of communications. Obama’s assurances have hinged, for example, on a term, targeting, that has a specific meaning for U.S. spy agencies that would elude most ordinary citizens.”

On PBS’s “Charlie Rose Show,” Obama said, “What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls and the NSA cannot target your e-mails.”

Still, the Post points out, “even if it is not allowed to target U.S. citizens, the NSA has a significant latitude to collect and keep contents of e-mails and other communications of U.S. citizens that are swept up as part of the agency’s court-approved monitoring of a target overseas. The law allows the NSA to examine such messages and share them with other agencies if it determines that the information contained evidence of a crime, conveys a serious threat, or is necessary to understand foreign intelligence.”

President George W. Bush at times engaged in similarly careful phrasing to defend surveillance programs. In 2004, while calling for renewal of the Patriot Act, Bush sought to reassure critics by saying “the government can’t move on wiretaps or roving wiretaps without getting a court order.” At the time it had not been publicly disclosed that Bush had secretly authorized NSA surveillance of communications between U.S. residents and contacts overseas while bypassing the Foreign Intelligence Surveillance Court (FISA).

When the wiretapping operation was exposed in the media two years later, Bush defended it as a program “that listens to a few members, called from outside the U.S. by al-Qaeda affiliates.” Later revelations made clear that the scope was far greater than than he suggested.

Members of Congress tasked with overseeing national security policy say that a pattern of misleading testimony by senior Obama administration officials has weakened the ability of Congress to properly oversee government surveillance. Officials, they report, have either denied the existence of a broad program that collects data on millions of Americans or, more often, made statements that gave the impression that the government was conducting only narrow, targeted surveillance operations.

Two Democratic members of the Senate Intelligence Committee, Senators Ron Wyden, D-Ore., and Mark Udall, D-Colo., say that even in top-secret briefings officials “significantly exaggerated” the effectiveness of the program that collected data on Americans’ e-mail usage.

At least two Republican lawmakers have called for the removal of intelligence chief James Clapper. A letter to Clappper sent from 26 senators from both parties complained about a series of statements from senior officials that “had the effect of misleading the public” and that “will undermine trust in government more broadly.”

“The national security state has grown so that any administration is now not upfront with Congress,” said Rep. Jerrold Nadler, D-N.Y., a senior member of the House Judiciary Committee. “It’s an imbalance that’s grown in our government, and one that we have to cleanse.”

In Wyden’s view, a number of administration statements have made it “impossible for the public or Congress to have a genuinely informed debate about government surveillance. These statements gave the public a false impression of how these authorities were actually being interpreted … The secret body of law authorizing secret surveillance overseen by a largely secret court has infringed on Americans’ civil liberties and privacy rights without offering the public the ability to judge for themselves whether these broad powers are appropriate or necessary.”

Rep. F. James Sensenbrenner, Jr., R-Wisc., an author of the Patriot Act and former chairman of the House Judiciary Commmittee, said he thought he and his colleagues had created a sufficiently narrow standard for seeking information. The government is allowed to collect only data that is “relevant” to an authorized terrorism investigation. “The relevancy requirement was intended to be limited,” says Sensenbrenner. “Instead, what we’re hearing now is that ‘relevant’ was expanding.”

Calling it a “stretch of the English language” for the administration to consider millions of Americans’ phone records to be “relevant,” he asked, “How can we do good oversight if we don’t get truthful and non-misleading information?”

Telling less than the truth to the American people and their elected representatives is hardly new.  We were led to war in Iraq because of alleged “weapons of mass destruction which, we later discovered, did not exist.  And, consider the Gulf of Tonkin Resolution that led to the war in Vietnam.

The Gulf of Tonkin Resolution was put before Congress by President Lyndon Johnson on Aug. 5, 1964, purportedly in reaction to two allegedly “unprovoked” attacks by North Vietnamese torpedo boats on the destroyers Maddox and C. Turner Joy in the Gulf of Tonkin on Aug. 2 and 4. Its stated purpose was to approve and support the determination of the president in taking all necessary measures to repel any armed attack against U.S. forces.

Both houses of Congress approved the resolution, the House by 414-0 and the Senate by 88-2.  The resolution served as the principal constitutional authorization for the subsequent escalation and the U.S. involvement in the Vietnam War.

While the Aug. 2 attack was said to be “unprovoked,” it later became known that the U.S. destroyer Maddox was actually engaged in aggressive intelligence-gathering maneuvers in sync with coordinated attacks on North Vietnam by the South Vietnamese Navy and the Laotian Air Force. In 1995, Vo Nguyen Giap, who had been North Vietnam’s military commander during the Vietnam War, acknowledged the Aug. 2 attack but denied that the Vietnamese had launched another attack on Aug. 4 as the Johnson administration claimed.

A later investigation by the Senate Foreign Relations Committee revealed that the Maddox had been on an electronic intelligence mission and also learned that the U.S. Naval Command Center in the Philippines had questioned whether any second attack had actually occurred.  In 2005, an internal NSA historical study was declassified.  It concluded that the Maddox had engaged the North Vietnamese Navy on Aug. 2 but that there may not have been any North Vietnamese Naval vessels present on Aug. 4.  The study concluded:  “It is simply that there is a different story of what happened.  It is that no attack happened that night.”

In 1965, President Johnson commented privately, “For all I know, our Navy was shooting at whales out there.” One of the Navy’s pilots flying overhead on Aug. 4 was squadron commander James Stockdale, who gained fame later as a POW and as Ross Perot’s vice presidential candidate. He said, “I had the best seat in the house to watch the event, and our destroyers were just shooting at phantom targets — there were no PT boats there. There was nothing there but black water and American firepower.”

As time went on, members of Congress saw the Gulf of Tonkin Resolution as a blank check to the president to wage war; the resolution was repealed in 1970.

We have real enemies at the present time, as we have had in the past. There may indeed be a need for a variety of surveillance programs.

But for democracy to work, non-elected government officials must not lie to the elected representatives of the people in the Congress. If Americans are to trust their government, that government must be trustworthy. We have been lied to before, and have paid s heavy price. Having a society in which citizens question the truthfulness of their own government weakens us. Only our enemies gain from such lack of trust.

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Allan C. Brownfeld
Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.