Former NSA Lawyer Says Keeping Bulk Collection Secret Was a Mistake

(This post is from our new blog: Unofficial Sources.)

The Bush administration’s decision to keep bulk collection of domestic phone records a secret was a strategic mistake, former NSA Inspector General Joel Brenner told his former colleagues on Friday.

But in the aftermath of the 9/11 terrorist attacks, Vice President Dick Cheney’s office was so determined to assert untrammeled executive power that any internal debate about going public or telling Congress was “academic” at the time, said Brenner, who served as the agency’s in-house watchdog from 2002 to 2006.

Brenner published his prepared remarks Friday morning, just before delivering them at the National Security Agency headquarters at an event marking the 40th Anniversary of the Church Committee, the special congressional committee that exposed surveillance abuse and led to the passage of the 1978 Foreign Intelligence Surveillance Act (FISA).

Brenner concluded that the program blatantly violated FISA, and he recalled asking his NSA colleagues why the White House didn’t just go to Congress and get the law changed. But, he noted: “This was actually an academic question, because policy was being driven, and driven hard, by [Cheney legal counsel David] Addington, who detested the FISA statute.”

Brenner said bulk collection was a part of the now “mostly declassified” program called STELLAR WIND, which “was run directly by the Office of the Vice President and put under the direct personal control of the Vice President’s counsel, David Addington.”

(On his personal website, Brenner further explains that Cheney and others hated FISA because “They thought it impinged on Executive authority, and they were intent on exercising untrammeled Presidential power under Article II of the Constitution — as if Congress didn’t also have power to regulate interstate and foreign commerce under Article I.”)

But NSA officials were also opposed to asking Congress for permission, if for slightly different reasons. “It was that amending FISA would require a public debate; that the public debate would educate our adversaries; and that we would lose intelligence as a result.”

Brenner said he didn’t buy it: “My response was that the program could not be kept secret forever, and that its eventual disclosure would create a firestorm and divide the country. The broad unity of the country behind the agency’s activities was a strategic asset; the loss of collection was likely to be tactical and temporary; and sacrificing a strategic asset for tactical advantage was as foolish in politics as it is in military operations.”

As for why President Barack Obama heeded the NSA’s advice to keep the program secret, Brenner writes that Obama “had no appetite” for the battle that would have ensued if had made it public. “The fight in 2008 was bruising enough.”

Brenner’s view was of course vindicated by the strong public reaction when that program and others were exposed by NSA whistleblower Edward Snowden nearly two years ago.

In his remarks, Brenner made light of some of the actual revelations. “Overseas, people were stunned to learn how extremely good NSA really is at its business — sometimes at their expense,” he said. “You were being criticized for being too good. And of course the dough of outrage rose higher and higher when leavened with the yeast of hypocrisy.”

But he acknowledged that the leaks hurt the NSA domestically, by showing that the agency operated under “secret law.”

“[I]n retrospect there’s a lesson to learn. The public, not just the three branches of government, must know what kinds of things we are allowed to collect domestically,” he said.

“You now live in a glass house,” he said. “How could anyone think the bulk collection program would remain secret? I’m not telling you there are no more secrets. You still have plenty of them. I am telling you that with instantaneous electronic communications, secrets are hard to keep; and that which can be kept secret does not stay secret for long. The idea that the broad rules governing your activities — not specific operations, but the broad rules — can be kept secret is a delusion. And they should not be kept secret.”

(Please see: How to Leak to The Intercept.)

Brenner was NSA’s inspector general from 2002 to 2006. He was later head of U.S. counterintelligence under the director of national intelligence, and senior counsel at the NSA. He now has a private legal and consulting practice.

Photo of Joel Brenner in 2014 by Robin Zielinski/Las Cruces Sun-News via Associated Press.