Former NSA general counsel Vito Potenza

Former National Security Agency deputy general counsel Vito Potenza asserted if an employee had come to him with concerns about the constitutionality of dragnet warrantless surveillance, which was intercepting the communications of Americans after 9/11, he would not have listened.

In October 2001, NSA whistleblower Thomas Drake spoke with one of the top lawyers in the NSA on the phone. He was concerned that Stellar Wind or “The Program,” which gathered the phone calls and Internet communications of millions of Americans, was illegal.

Vito Potenza, who has previously declined to comment on this exchange, was interviewed for Frontline’s “The United States of Secrets.” He said if he even had such a conversation with Drake he would have basically ignored everything Drake said to him:

POTENZA: If he came to me, someone who was not read into “The Program,” right, and not a part of what we were doing and told me that we were running amok essentially and violating the Constitution and it was in that timeframe when there was an awful lot going on and we were all worried about the next attack, there’s no doubt in my mind I would have told him, you know, go talk to your management. Don’t bother me with this. I mean, you know, the minute he said, if he did say you’re using this to violate the Constitution, I mean, I probably would have stopped the conversation at that point quite frankly. So, I mean, if that’s what he said he said, then anything after that I probably wasn’t listening to anyway. [emphasis added]

Asked about the demented casualness of Potenza’s answer, Drake told Firedoglake this is reflective of someone continuing a coverup. He said he “confronted” Potenza “directly in the most direct language possible” saying “that NSA was violating the Constitution.” So, Potenza “knows the truth and chose to go with ‘The Program.’ And anybody questioning ‘The Program’ was a threat.”

Drake, along with Bill Binney, Ed Loomis and Kirk Wiebe, had discovered that a program they had supported, ThinThread, had been emasculated and stripped of its privacy protections. It would no longer automatically encrypt all US person-related data as envisioned. NSA would simply be using an algorithm, Mainway, that could “link phone numbers together as they’re being collected.” The agency would go to the telecommunications companies and ask for “bulk-copy records” of every American.

Each of the men was livid. It eventually drove Binney, Loomis and Wiebe to leave the agency so they would not be a party to any of the crimes that would be committed. But Drake stayed in the agency and attempted to go through “proper channels” with his concerns.

In his Frontline interview, Drake said he did not know there was a “secret presidential directive” for this surveillance. He appealed to Maureen Baginski, who was Drake’s superior and the third highest ranking official at the NSA. She balked at his concerns and told him to contact the Office of General Counsel and speak with the NSA’s lead attorney, Potenza.

Drake recalled, “It was this side of a half-hour conversation with him on the phone, and it’s extraordinarily chilling, because as soon as I hung up the phone — and I’ll share what he told me — I was thrown back to the 1970s. The hair literally was up on the back of my neck, because he proceeded to tell me: ‘You don’t understand. All the lawyers have approved it. It’s legal. The White House has authorized NSA to serve as the executive agent for ‘the Program.’ They always said ‘the Program.’ ‘The Program’ was Stellar Wind.”

He pushed back and said, “You’re telling me that under the excuse of 9/11, we’re just going to abandon the Constitution?” And Potenza replied, “You don’t understand. We are under emergency conditions. Extraordinary, extraordinary means are required to deal with the threat. We just need the data.”

It then became even more frustrating for Drake. “Don’t ask any more questions, Mr. Drake,” he said Potenza told him.

Jane Hamsher

Jane Hamsher

Jane is the founder of Firedoglake.com. Her work has also appeared on the Huffington Post, Alternet and The American Prospect. She’s the author of the best selling book Killer Instinct and has produced such films Natural Born Killers and Permanent Midnight. She lives in Washington DC.
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