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Former NSA Director’s Favorite Blogger Was Invited to Give Constitution Day Speech at NSA

Screen shot from Benjamin Wittes’ personal website

The National Security Agency marked Constitution Day in September by inviting one of the United States national security state’s most favorite bloggers, Benjamin Wittes, who is the editor-in-chief of Lawfare, to give a speech.

The address was made even more remarkable by the fact that Wittes had intended to post his unclassified speech soon after but was stymied by the very secrecy, which he has relentlessly pilloried NSA whistleblower Edward Snowden for challenging through his disclosures. So, until February 21, he was unable to post audio of the speech.

For those unfamiliar with Wittes, he is a senior fellow in Governance Studies at the Brookings Institution, a major Beltway think tank. He also is on the Hoover Institution’s Task Force on National Security and Law. More importantly, he is someone who former NSA director Keith Alexander and Hillary Clinton like to read and is popular among officials in US intelligence agencies because his blog focuses on the “hard national security choices” US intelligence agencies have to make each day.

Wittes testified before the Senate Select Committee on Intelligence on September 23, 2013, that Snowden’s “disclosures show no evidence of any intentional, unlawful spying on Americans or abuses of civil liberties. They show a low rate of the sort of errorsany complex system of technical collection will inevitably yield. They show robust compliance procedures. They show earnest and serious efforts to keep the Congress informed—including members not on this committee or its counterpart in the House of Representatives. And they show an ongoing dialogue with the Foreign Intelligence Surveillance Court (FISC) about the parameters of the agency’s legal authorities and a commitment both to keeping the court informed of activities and to complying with its judgments as to their legality.” [PDF]

He is just the type of person the NSA would want to address its analysts or officers because he reflects and champions the exact agency thinking, which has directly come under scrutiny as a result of Snowden.

Now, before proceeding, Wittes preemptively responded to critics (“NSA foes”), who would write posts like this one:

It was an honor and pleasure to give this speech before an agency in whose work I believe and whose workforce has taken a huge and largely unfair beating. I hope my comments stimulated thought and challenged people at the agency. And while people are free, of course, to decide that either the fact of the speech or its contents confirm whatever they already believed about me and NSA, I would hope they might instead—or in addition—engage some of the ideas I put forth.

Let’s engage a few ideas in the Constitution Day speech and then return to the best part about all this, which is that Wittes had to wait about five months for the NSA to declassify an unclassified speech before he could post the audio of it.

Wittes opens his speech by noting that it was “moving” to him that he would be invited to speak at a time of “stress” and “unwanted publicity” for the NSA. He then proceeds to call Constitution Day an “odd day” and a “weird event.”  He notes that Democratic Senator Robert Byrd was largely responsible for the institution of the day and that every educational institution that gets federal funds must observe Constitution Day. Without really any evidence whatsoever, he suggests this is burdensome for small colleges to observe primarily because they have to invite people like him. But colleges do not have to invite expensive speakers to do events and can distribute literature about the Constitution or observe the day in other ways.

Most of the speech to the NSA is committed to contemplating how the NSA should handle a political reality, where there is this cloud of suspicion about what it does as an agency. But Wittes does not specifically highlight the Constitution and whether the NSA adheres to it through its operations nor does he use the multiple legal challenges to NSA surveillance in courts to make specific arguments about the constitutionality of US intelligence operations. He instead opts to rationalize the suspicion the public has toward the NSA as something wholly inadequate and invalid.

The result is a speech that reinforces the siege mentality that the agency does not deserve to be under so much public criticism—and here is what can be done to survive this moment.

Wittes argues that the intelligence community may do “ugly stuff” but so do other federal government agencies. The government can threaten to kill you or put you in “a small box” for the rest of your life. “The fact that there is ugly stuff done in the intelligence community is both true and utterly inadequate as an explanation for this kind of deep reservoir of suspicion.” It is a race to the bottom kind of argument. Why be suspicious of agencies like the NSA when other agencies can commit gross abuses of power too? (Pretty nuts.)

To him, secrecy is not a legitimate argument for why people are suspicious of intelligence operations. He suggests “a huge amount of what the government does is functionally secret, if only because nobody happens to [submit Freedom of Information Act (FOIA) requests for] it or because it would be subject—if not classified—it would be subject to some FOIA exemption or another. And parts of the government we, in fact, trust a great deal have huge levels of secrecy that we don’t really mind all that much. Or, we kind of fight about the appropriate levels of secrecy, but we do it without developing a deep, deep suspicion of the day-to-day operations.”

It is unclear how Wittes happens to know what the public seeks when submitting FOIA requests. However, generally speaking, the amount of FOIA requests for government records has been increasing each year and more Americans than under President George W. Bush are filing lawsuits to force the government to comply with FOIA.

Wittes’ argument can be demolished simply by stating the fact that certain material being kept secret through FOIA exemptions does not invalidate or delegitimize suspicion of security agencies. It reinforces suspicion, especially when there is increased awareness of the “state secrets privilege” being abused in courts.

The Supreme Court is not subject to FOIA, Wittes notes. However, that does not help one argue that secrecy cannot explain suspicion toward security agencies. If anything, one might say the institutional secrecy of the highest court in the US accentuates the perceived corruption of US intelligence agencies.

The most enthralling part of his speech is when Wittes attempts to explain the distrust of NSA and other clandestine agencies by suggesting that the Constitution is incompatible with their operations. For example, people who cooperate with agents are heralded as assets or heroes while those who turn against agencies are traitors or criminals. Wittes acknowledges that former NSA director Michael Hayden cheerfully admitted that the agency steals secrets. If he stole secrets, it would be criminal, but the NSA is able to get away with doing it.

Wittes proudly defends this dynamic, even going so far to say that he does not feel like a hypocrite when confessing that he opposes what Edward Snowden did but would be thrilled if there was a hypothetical Chinese Edward Snowden. But he appears to at least understand that some of the more egregious activities revealed by Snowden suggest an agency that does not adhere to principles all citizens are expected to uphold. To NSA employees in the audience, that is okay.

He discusses transparency as one possible prescription for smoothing over relations with citizens. He makes it clear that he does not mean transparency through the release of documents or even copies of the policies or interpretations of the law, which NSA employs to justify operations. Rather, he advocates a “transparency of values,” such as “reasons why we have this building.” Wittes favors NSA not being apologetic about why NSA headquarters exists.

In other words, he favors the exact kind of so-called transparency former NSA director Keith Alexander and Director of National Intelligence James Clapper favor. It is the transparency the NSA urged personnel to employ at Thanksgiving dinners in 2013, when confronted with family critical of the agency.

Officials and think tankers like Wittes favor the proud declaratory expression of agency values as a way of helping citizens understand the stakes of what the national security state is allegedly up against to shift attention from unspeakable conduct. This is propaganda, not transparency.

And now that I have engaged parts of Wittes’ speech, as he wanted critic/foes to do rather than simply mock and laugh at him, let’s appreciate the poetic justice of the ordeal Wittes went through trying to get this speech posted online.

“I had meant to post the speech back then, except that it being NSA and all, I wasn’t allowed to bring my own recording equipment into the building and thus had to wait until the NSA folks released the audio of my own speech to me. This took a while—a long, long while, as it turned out,” according to Wittes.

“For reasons still unclear to me, my speech had to go through a lengthy review before it could be released, even to its author. This was particularly odd, since the event was unclassified, since I am not cleared to receive classified information in any event, since I was free at any time in the interim to give exactly the same speech somewhere else, and since I requested only my own words—not the words of any NSA official or any of the Q&A.”

Is Wittes pretending to be ignorant or does he seriously not understand the secrecy regime of an agency he champions and how it seeks to control all information that ever comes into its grasp? Didn’t part of his speech talk about how they are able to do things other people in democratic society are not supposed to do? Isn’t classifying even the most innocuous information like his own speech one of those things?

Once Wittes gave his speech, it became property of NSA. It was theirs to classify so the public would not pick apart Wittes’ speech and use it to further criticize NSA personnel. It did not matter how many concessions he made to the minions, who guard anything reflexively stamped secret. If agency wanted it to be public, it would be public when the public would care about it the least.

Though, it is not as if Wittes bothered to fight it. He did not write a post about what he said and complain about NSA secrecy while they were frustrating him. He sycophantically waited because he has staked his reputation over the past 18 months on defending the NSA and some laws that have become deeply unpopular because they grant them authorities that are abused or abusive. He is like an NSA groupie.

The NSA basically owns him at this point and, when someone at NSA says jump, Wittes says what time.

CommunityThe Dissenter

Former NSA Director’s Favorite Blogger Was Invited to Give Constitution Day Speech at NSA

Screen shot from Benjamin Wittes’ personal website

The National Security Agency marked Constitution Day in September by inviting one of the United States national security state’s most favorite bloggers, Benjamin Wittes, who is the editor-in-chief of Lawfare, to give a speech.

The address was made even more remarkable by the fact that Wittes had intended to post his unclassified speech soon after but was stymied by the very secrecy, which he has relentlessly pilloried NSA whistleblower Edward Snowden for challenging through his disclosures. So, until February 21, he was unable to post audio of the speech.

For those unfamiliar with Wittes, he is a senior fellow in Governance Studies at the Brookings Institution, a major Beltway think tank. He also is on the Hoover Institution’s Task Force on National Security and Law. More importantly, he is someone who former NSA director Keith Alexander and Hillary Clinton like to read and is popular among officials in US intelligence agencies because his blog focuses on the “hard national security choices” US intelligence agencies have to make each day.

Wittes testified before the Senate Select Committee on Intelligence on September 23, 2013, that Snowden’s “disclosures show no evidence of any intentional, unlawful spying on Americans or abuses of civil liberties. They show a low rate of the sort of errorsany complex system of technical collection will inevitably yield. They show robust compliance procedures. They show earnest and serious efforts to keep the Congress informed—including members not on this committee or its counterpart in the House of Representatives. And they show an ongoing dialogue with the Foreign Intelligence Surveillance Court (FISC) about the parameters of the agency’s legal authorities and a commitment both to keeping the court informed of activities and to complying with its judgments as to their legality.” [PDF]

He is just the type of person the NSA would want to address its analysts or officers because he reflects and champions the exact agency thinking, which has directly come under scrutiny as a result of Snowden.

Now, before proceeding, Wittes preemptively responded to critics (“NSA foes”), who would write posts like this one:

It was an honor and pleasure to give this speech before an agency in whose work I believe and whose workforce has taken a huge and largely unfair beating. I hope my comments stimulated thought and challenged people at the agency. And while people are free, of course, to decide that either the fact of the speech or its contents confirm whatever they already believed about me and NSA, I would hope they might instead—or in addition—engage some of the ideas I put forth.

Let’s engage a few ideas in the Constitution Day speech and then return to the best part about all this, which is that Wittes had to wait about five months for the NSA to declassify an unclassified speech before he could post the audio of it.

Wittes opens his speech by noting that it was “moving” to him that he would be invited to speak at a time of “stress” and “unwanted publicity” for the NSA. He then proceeds to call Constitution Day an “odd day” and a “weird event.”  He notes that Democratic Senator Robert Byrd was largely responsible for the institution of the day and that every educational institution that gets federal funds must observe Constitution Day. Without really any evidence whatsoever, he suggests this is burdensome for small colleges to observe primarily because they have to invite people like him. But colleges do not have to invite expensive speakers to do events and can distribute literature about the Constitution or observe the day in other ways.

Most of the speech to the NSA is committed to contemplating how the NSA should handle a political reality, where there is this cloud of suspicion about what it does as an agency. But Wittes does not specifically highlight the Constitution and whether the NSA adheres to it through its operations nor does he use the multiple legal challenges to NSA surveillance in courts to make specific arguments about the constitutionality of US intelligence operations. He instead opts to rationalize the suspicion the public has toward the NSA as something wholly inadequate and invalid.

The result is a speech that reinforces the siege mentality that the agency does not deserve to be under so much public criticism—and here is what can be done to survive this moment.

Wittes argues that the intelligence community may do “ugly stuff” but so do other federal government agencies. The government can threaten to kill you or put you in “a small box” for the rest of your life. “The fact that there is ugly stuff done in the intelligence community is both true and utterly inadequate as an explanation for this kind of deep reservoir of suspicion.” It is a race to the bottom kind of argument. Why be suspicious of agencies like the NSA when other agencies can commit gross abuses of power too? (Pretty nuts.) (more…)

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."