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Article posted Jul 18 2013, 12:28 PM Category: Politics/Corruption Source: Techdirt Print

Former Top NSA Lawyer Blames Civil Libertarians For 9/11, Says Hype About NSA May Lead To A Repeat

by Mike Masnick

Ah, Stewart Baker. We've mentioned him a few times in the past. He's the former Assistant Secretary for Homeland Security and General Counsel for the NSA. He's, as you may have guessed, strongly in the "pro-surveillance" camp, and has even attacked some of the journalists who revealed the NSA leaks, claiming that by revealing the truth they're no longer journalists, but advocates. He's taking part in a House Judiciary Committee hearing looking into oversight on the administration's use of FISA and his testimony is quite incredible. It goes way beyond what we've seen from others. While it repeats his baseless and confused attack that some journalists who were key players in this story were evil "advocates" rather than journalists, that's nothing compared to his lack of regard for the Constitution and basic civil liberties. In fact, he very clearly blames 9/11 on civil liberties advocates, and fears that all this talk about surveillance may lead to a repeat event.
To be blunt, one of the reasons I'm here is that I fear we may repeat some of the mistakes we made as a country in the years before September 11, 2001. In those years, a Democratic President serving his second term seemed to inspire deepening suspicion of government and a rebirth of enthusiasm for civil liberties not just on the left but also on the right. The Cato Institute criticized the Clinton Administrations' support of warrantless national security searches and expanded government wiretap authority as "dereliction of duty," saying "[i]f constitutional report cards were handed out to presidents, Bill Clinton would certainly receive an F-an appalling grade for any president-let alone a former professor of constitutional law?" The criticism rubbed off on the FISA court, whose chief judge felt obliged to give public interviews and speeches defending against the claim that the court was rubber-stamping the Clinton administration's intercept requests.

This is where I. should insert a joke about the movie "Groundhog Day." But I don't feel like joking, because I know how this movie ends. Faced with civil liberties criticism all across the ideological spectrum, the FISA court imposed aggressive new civil liberties restrictions on governments use of FISA information. As part of its "minimization procedures" for FISA taps, the court required a "wall" between law enforcement and intelligence. And by early 2001, it was enforcing that wall with unprecedented ferver. That was when the court's chief judge harshly disciplined an FBI supervisor for not strictly observing the wall and demanded an investigation that seemed to put the well-regarded agent at risk of a perjury prosecution. A chorus of civil liberties critics and a determined FISA court was sending the FBI a single clear message: the wall must be observed at all costs.

And so, when a law enforcement task force of the FBI found out in August of 2001 that al Qaeda had sent two dangerous operatives to the United States, it did ... nothing. It was told to stand down; it could not go looking for the two al Qaeda operatives because it was on the wrong side of the wall. I believe that FBI task force would have found the hijackers -- who weren't hiding -- and that the attacks could have been stopped if not for a combination of bad judgment by the FISA court (whose minimization rules were later thrown out on appeal) and a climate in which national security concerns were discounted by civil liberties advocates on both sides of the aisle.
Got that? Anyone advocating for basic civil liberties is to blame for 9/11. Holy fuck. This kind of thinking is about as anti-American as I can think of. As we've discussed, protecting civil liberties is at the core of the American way of life. "Give me liberty or give me death" is the phrase that Patrick Henry chose, and apparently Stewart Baker believes the American motto should be "you're all going to die if you fight for civil liberties!" Shameful.

And that's not the only example he uses. He goes back to the early days of organized US intelligence efforts, talking about how we "won" World War II by ignoring limitations on intelligence collections.
The Americans who fought World War II had a different view; they thought that intelligence couldn't be conducted under any but the most general legal constraints. This may have been a reaction to a failure of law in the run-up to World War II, when U.S. codebreakers were forbidden to intercept Japan's coded radio communications because section 605 of the Federal Communications Act made such intercepts illegal. Finally, in 1939, Gen. George C. Marshall told Navy intelligence officers to ignore the law. The military that followed made the officers look like heroes, not felons.
Got that? Ignoring laws that protect your privacy and communications is good, because of one situation where intelligence agencies breaking the law helped the US in war. But that kind of justification is a justification that the government has the power to do anything it wants to achieve its goals. We would all be a lot "safer" if the government could randomly search homes and throw those it doesn't like in jail with no trial. And Stewart Baker could smugly sit in front of Congress with his best "this is my best grave face" and talk about how this "saves lives." But that's not how it works. We don't ignore the Constitution and basic civil liberties because "it makes us safer." Because it doesn't. It shows what hypocrites the US government can be, that it has no respect for the people who duly elected its leaders. That it has no respect for the Constitution. That it will go to any length to control the population, with vague scare stories of "but... but... terrorism."

Baker then moves on to argue that any public debate over the US government absolutely destroying the civil liberties of the public they're supposed to serve only creates problems, because any such discussion just gives bogey men more opportunities to avoid further dragnet surveillance:
Forty years later, though, we're still finding problems with this experiment. One of them is that law changes slowly while technology changes quickly. That usually means Congress has to change the law frequently to keep up. But in the context of intelligence, it's often hard to explain why the law needs to be changed, let alone to write meaningful limits on collection without telling our intelligence targets a lot about our collection techniques. A freewheeling and prolonged debate -- and does Congress have any other kind? -- will give them enough time and knowledge to move their communications away from technologies we've mastered and into technologies that thwart us. The result won't be intelligence under law; it will be law without intelligence.
Basically, shut up with the debate, just let us go back to spying on fucking everyone. If we actually have to "debate" and "protect the Constitution," some "bad guys" might talk without us knowing about it. And then we'll all die.

Later in his remarks, he makes this point even clearer, insisting that "open debate" will cause "great harm."
In short, in both section 215 and section 702, the government has found a reasonable way to square intelligence-gathering necessities with changing technology. Now that they've been exposed to the light of day, these programs are not at all hard to justify. But we cannot go on exposing every collection technique to the light of day just to satisfy everyone that the programs are appropriate. The exposure itself will diminish their effectiveness. Even a fair debate in the open will cause great harm.
Bullshit. We keep hearing this claim, and there's no evidence to support it at all. Most people doing really bad things have always suspected that these telco and internet services were watched closely by the NSA. Just look at how Osama bin Laden communicated with the outside world, and it's clear that Al Qaeda knew how to go to great lengths to avoid leaving revealing marks via phone or internet services, moving messages around on USB sticks, having computers with no internet connection, and sending people many miles away to upload and download things.

In the security world, people have long noted that "security by obscurity" is a recipe for trouble. A truly strong security system can withstand attack even if its details are public. The same holds true for intelligence gathering techniques. If they are truly justified and justifiable, they can withstand public scrutiny and public debate.

Later, he again argues that the openness of this debate has already harmed American interests, in part because European countries are worse than the US with their own surveillance efforts, but since only the Americans are having this open debate, European politicians can attack the US while knowing that their own -- even worse -- surveillance efforts are still secret.

He then tries to flip the whole thing around and argue that supporters of civil liberties are actually anti-technology, because they're trying to limit the government's use of technology. That's ridiculous, since many of the loudest supporters of civil liberties come from the tech and innovation communities. No one thinks the government shouldn't make efficient use of technology -- but that's very different from saying it's okay for the government to either convince or force companies to cough up all sorts of private data on everyone or risk the wrath of the US government. That's not a fair fight. The government has the power to compel people and companies to do things that they would not do otherwise, though I guess an extreme authoritarian like Baker either doesn't realize this or doesn't see it as a problem.

At the end, he makes a bunch of claims about how it's the US government's job to "protect" everyone -- though I'd like to see where that's laid out in the Constitution. As mentioned above, he makes some valid points that other countries are just as bad, if not worse, but that's hardly a compelling argument, because that just allows others to flip it around, and claim that the US has no moral high ground, since it's ignoring the civil liberties of the public -- something that Baker notes he directly supports in this testimony -- for some vague and impossible promises of "safety."

Baker's key claim is the same bogus one we've heard before: an undying belief in a supreme authoritarian government that gets to do whatever the hell it wants in the name of "national security." Civil liberties and basic Constitutional protections just get in the way, and ain't nobody got time for that.

Baker 07172013 (PDF)

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