Feinstein, Rogers & Snowden: Who's the Traitor?

Dear Senator Feinstein,

Your August 15 letter regarding the NSA XKeyscore surveillance program did not reassure me. “The Senate Select Committee on Intelligence, which I chair, is currently reviewing the allegations made by the Guardian,” but like all your committee’s proceedings, the review will be classified so we’ll never know. If not for Edward Snowden, the public—and most members of Congress—would still be in the dark about the extent of NSA’s malfeasance, for the House and Senate Intelligence committees no longer serve as watchdogs but as protectors and apologists. Since Snowden’s leaks began in June, you have not held a single open hearing on the surveillance programs and your counterpart in the House, Rep. Rogers’ single hearing had only pro-NSA witnesses. You apparently distributed a key document to senators prior to a vote on the Patriot Act but Rogers did not in order to guarantee reauthorization. You called Snowden’s leaking of classified documents an act of treason but the real act of treason is Rogers’ withholding information from members of Congress. It is, as the executive director of the Government Accountability Project says, “tantamount to subversion of the democratic process.” In your letter, you provided a link to the NSA press release of July 30 refuting the Guardian’s claims about XKeyscore. I read the press release; it is no different than any of the NSA’s previous denials which have been proven to be misleading or false. Thursday, the Washington Post reported more secret documents leaked by Snowden showed the NSA had violated their own internal restrictions on data collection 2,776 times in the previous year; an 80-page FISC report stated the NSA had violated the 4^th Amendment in 2011; and a training manual for NSA analysts states, “While we do want to provide our F.A.A. overseers with the information they need, we DO NOT want to give them any extraneous information.” Sen. Wyden says that what has been revealed so far is just the tip of the iceberg. Minor, technical and human errors, says the NSA and their defenders. But they have lied, misled, spun and twisted the truth again and again. Why should we believe them now? Or you? Without truth and transparency there is no basis for trust and no foundation for democracy. We are way overdue for information on these secret programs, their effectiveness and, indeed, why they are needed. You owe us that, Senator; anything less is dereliction of duty and subversion of the democratic process.

Bradley Manning Dismantled

Dear Mr. President,

You, Alexander, Clapper and all the faceless bureaucrats who keep America’s secrets, won yesterday. Bradley Manning finally broke, admitted bad judgment, apologized for the harm he did to his country, and pleaded for mercy. You could see it coming when the defense opened its sentencing case Monday, a tectonic shift from his attorney’s previous portrayal of him as an idealistic whistleblower to a smaller, sadder, confused, mentally incompetent boy with sexual identity problems. It was heartbreaking, a betrayal by everyone involved—the government, the defense and Bradley himself, for we need heroes and Manning as avatar for a new breed of whistleblower and truth-teller was dismantled before our eyes. But who can condemn him? Who among us could have endured what he did? Three years of brutal imprisonment, a sham, rigged trial, a sentence that was a foregone conclusion and the prospect of the rest of his life in prison for a 25-year-old could break anyone. We wanted the image of Bradley slouched in a chair in a trailer near Baghdad lip-synching Lady Gaga tunes as he downloaded America’s secrets. We wanted the idealism and enthusiasm of that young man who believed the truth would set us free, that it might even stop a war. Yesterday, that image was replaced by a nervous, frightened, near-tears young man who wondered how he could have believed a junior analyst “could change the world for the better…” But he did, in spite of everything, he did. We wanted the confident, articulate Bradley of February who gave an hour-long pre-trial statement with conviction, intelligence and courage, not yesterday’s Bradley who gave a hesitant, 3-minute apology for his crimes against the state. One psychiatrist testified that giving files to WikiLeaks was a “neurotic act of an idealist who thought he could end all wars.” But this is precisely what is needed for a person to become a hero, to perform courageous acts against overwhelming power. The pressure and circumstances may have caused Bradley to betray himself, his ideals, his sense of right and wrong, but it is not unlike—and certainly not as great—as your betrayal of us, Mr. President. What has been lost in the Manning trial is the truth he exposed—the war crimes, the cover-ups, the brutality and evil of war—but it is out there for all to see because of him and there will be more Bradley Mannings—and Edward Snowdens—to expose government lies and abuse of power. You won this round but the battle continues.

Laura Poitras: Life In The New World Order

Dear Mr. President,

Since 9/11 there has been a revolution in America but few people seem to have noticed. Laura Poitras is one who has although she never calls it that. I’m sure you’ve been briefed on Poitras, the documentary filmmaker who helped Snowden and Greenwald expose the NSA’s surveillance programs. An article in next Sunday’s NYT Magazine (“How Laura Poitras Helped Snowden Spill His Secrets”) tells the story. The revolution impacts Poitras’ life in June 2006 when her airline tickets were suddenly marked “SSSS”—Secondary Security Screening Selection. She was detained the first time in Newark boarding a flight to Israel to show her film, “My Country, My Country.” She was detained again on her return and the next month again in Vienna where her bags were searched and she was questioned. There, a security agent told her that her government had flagged her as a terror threat. Since then, she’s been detained more than 40 times. She wrote members of congress and submitted FOIA requests but never heard back. Each time she was detained, her notes and papers were copied so she stopped carrying paper. She was told that if she didn’t answer their questions, they would confiscate her computers and cell phone (they did). She was told her refusal to answer questions was itself suspicious. The government contends that constitutional rights do not apply at border crossings so she was not permitted to have a lawyer present. She began taking notes of these searches and interrogations. In 2012 she was told she could not take notes and an agent threatened to handcuff her if she continued. Taken to another room, 3 agents interrogated her and yelled at her as she continued taking notes. When Greenwald wrote an article about her the detentions stopped but for 6 years Poitras felt she was in a Kafka state where she was put on a watch list without explanation. “It’s the complete suspension of due process,” she says. “A shadow government has grown…in the name of national security without oversight or national debate…” Snowden revealed an American police state where there is no personal privacy and only the government is allowed to have secrets. But privacy is a form of refuge and when that is taken away, it creates anxiety, distrust and fear. From the government’s perspective however, the invasion of privacy is a form of control that suppresses dissent and reduces risk. The Constitution no longer applies and personal privacy no longer exists. Welcome to the new world order.

Obama's Drug of Choice: Power

Dear Mr. President,

I listened again to your Friday press conference reassuring America that the NSA surveillance programs and bulk collection of data are both legal and tightly controlled. How you’re consulting with Congress and outsiders on tweaks to the programs to ensure even greater oversight and safeguards, how you called for a complete review of the NSA program before the Snowden leaks, how we must have greater transparency, etc. etc. etc. You are one slick dude, Mr. President. Your smooth confidence and certainty, that voice of authority—like Moses handing down the 10 commandments to the people of Israel—is mesmerizing and you want to believe…but then you think about all the broken promises, betrayals and lies of the past 5 years and your words turn to dust. The oversight you say we have through the FISA court is non-existent—the court operates in total secrecy, no opposing side to the government is ever heard, and in 20 years the court has rejected only 11 requests in 34,000. As for oversight by Congress, that too is a fiction. In an interview yesterday on DemocracyNow! Sen. Wyden’s former chief of staff, Jennifer Hoelzer, said your administration blocked every attempt at debate over the Patriot Act, the FISA Court and the NSA. (http://www.democracynow.org/2013/8/12/senate_insider_speaks_out_ex_wyden) Also yesterday, the Guardian reported that Rep. Justin Amash (R-MI) said the Intelligence committee withheld a key document on the NSA’s surveillance program that the Administration declassified and gave to the intelligence committees prior to the vote to reauthorize the Patriot Act. When even members of Congress can’t know what’s going on, when the justifications for all this remain secret, when more and more illegal activity by the NSA is revealed, you expect us to trust you? When Gen. Alexander makes statements like this: “I can’t defend the country until I’m into all the networks,” we’re supposed to trust the NSA? (today’s NYT “NSA Leaks Make Plan For Cyberdefense Unlikely” p. A6) Again I go back to the question of how power twists and distorts reality for those who hold it; how they lose touch with reality; how power is like any other drug—you can never get enough—how whatever is done to maintain and get more is justified with religious fanaticism and any question of their authority is a threat. That’s what I see in your Friday press conference, Mr. President, the fanatic certainty and belief in your own rhetoric and that’s a very scary prospect.

Obama's Press Conference: Snowden, Patriots & the NSA

Dear Mr. President,

Do you really think the American people just need a little more transparency about the NSA’s mass collection of every phone call, email, internet browsing history and financial record to feel more “comfortable” that nobody’s abusing their privacy? That the government’s shredding of the 4^th Amendment (along with the 1^st through the 10^th) is perfectly okay? Excuse me, Mr. President, but you’re the one who’s unclear on the concept. You may feel comfortable that the NSA is not abusing our privacy but We the People sure aren’t. We don’t need to “jigger slightly” the balance between privacy and security and we sure don’t need more PR to reassure us; we need to gut the whole program along with the NSA. What is it that divorces presidents from reality? “Asked whether the steps on surveillance he was taking amounted to a vindication of Mr. Snowden’s leaks, Mr. Obama rejected that notion. He said that Mr. Snowden should have gone to the Congressional intelligence committees with any concerns he had about surveillance, rather than ‘putting at risk our national security’…” (today’s NYT, “President Moves to Ease Worries on Surveillance” p. A1) Come on! When even representatives in Congress are rebuffed and lied to by the chairs of the Senate and House Intelligence Committees in attempts to get basic information about the NSA program, you expect a “29-year hacker” (your term) to be listened to by legislators whose power resides in keeping things just the way they are? Every whistle blower since 9/11 has paid dearly. Bradley Manning, who attempted to go through the chain of command with evidence of war crimes was rebuffed at every turn and for his sin of releasing classified information that should not have been classified in the first place, is facing a 90 year prison sentence. Thomas Drake, John Kiriakou William Binney, whistleblowers all, paid dearly for blowing the whistle while the perpetrators of abuse, corruption or crimes remain unindicted. Edward Snowden had the benefit of predecessors. He knew he would be treated badly. He knew his information would never see the light of day and so, he took the only recourse possible. “I don’t think Mr. Snowden was a patriot,” you said. But Mr. Snowden sparked the public debate you said you wanted. Mr. Snowden is responsible for the transparency you say we need. Mr. Snowden told the truth, his revelations endangers no one and promotes the democratic process. That’s my definition of a patriot, Mr. President.

Feinstein's View of the NSA

Dear Senator Feinstein,

I am in disbelief at the letter you sent via email last night regarding my concerns about the NSA. Do you really believe “the government cannot listen to an American’s telephone calls or read their emails without a court warrant issued upon a showing of probable cause?” That the information NSA collects is minimal, “the kind you might find on a telephone bill?” Do you really believe the FISA court is an effective oversight? A rubber-stamp court that turned down only 11 of 34,000 requests over the past 20 years? A court that operates in secret and whose findings are secret is neither a court to be trusted nor a court found in any true democracy. And do you really believe that NSA programs have been “effective in identifying terrorists, their activities, and those associated with terrorist plots…to prevent numerous terrorist attacks?” As examples, you trot out the same two that have been shown over and over again to have been foiled not by NSA programs but by other agencies, other means and indeed, other countries—the Zazi plot (to bomb the NYC subway) and Headley (Mumbai and a Danish newspaper) were both tips from British intelligence. You quote Alexander’s discredited testimony that NSA programs helped prevent “over 50 potential terrorist events,” the 50 reduced to 13, then 2, then “maybe one” in testimony last week to the Senate Judiciary Committee. Your letter also states that the laws which enabled and reauthorized this surveillance were passed by overwhelming margins but those laws have been breached twisted, distorted and ignored by NSA. As the lead editorial in today’s NYT says, “Apparently no espionage tool that Congress gives the NSA is big enough or intrusive enough to satisfy the agency’s inexhaustible appetite for delving into the communications of Americans… Data collection on this scale goes far beyond what Congress authorized and it clearly shreds a common-sense understanding of the Fourth Amendment.” The author of the Patriot Act, Rep. Sensenbrenner (R-WI) voted for the Amash Amendment to cut funding for the NSA saying the Patriot Act was never intended to authorize what they’re doing. When agencies and the courts act in secret without effective oversight, then Congress has failed; failed America, failed its citizens, and failed democracy. That’s the state we’re in now, Senator. Your assurances are a fiction but I fear you believe them, that you are clueless. With people like you in Congress, God help us one and all.

cc: Representative Nancy Pelosi

      Senator Barbara Boxer

      President Barack Obama

 

Thu, Aug 8, 2013 7:54 PM

U.S. Senator Dianne Feinstein responding to your message

From:	"senator@feinstein.senate.gov" <senator@feinstein.senate.gov>
To:	ryoder

---

Dear Mr. Yoder:  I received your communication indicating your concerns about the two National Security Agency programs that have been in the news recently. I appreciate that you took the time to write on this important issue and welcome the opportunity to respond. First, I understand your concerns and want to point out that by law, the government cannot listen to an American's telephone calls or read their emails without a court warrant issued upon a showing of probable cause. The programs that were recently disclosed have to do with information about phone calls – the kind of information that you might find on a telephone bill – in one case, and the internet communications (such as email) of non-Americans outside the United States in the other case. Both programs are subject to checks and balances, and oversight by the Executive Branch, the Congress, and the Judiciary. As Chairman of the Senate Intelligence Committee, I can tell you that I believe the oversight we have conducted is strong and effective and I am doing my level best to get more information declassified. Please know that it is equally frustrating to me, as it is to you, that I cannot provide more detail on the value these programs provide and the strict limitations placed on how this information is used. I take serious my responsibility to make sure intelligence programs are effective, but I work equally hard to ensure that intelligence activities strictly comply with the Constitution and our laws and protect Americans' privacy rights. These surveillance programs have proven to be very effective in identifying terrorists, their activities, and those associated with terrorist plots, and in allowing the Intelligence Community and the Federal Bureau of Investigation to prevent numerous terrorist attacks. More information on this should be forthcoming. On June 18, 2003, the Director of the National Security Agency (NSA) testified to the House Intelligence Committee that there have been "over 50 potential terrorist events" that these programs helped prevent. While the specific uses of these surveillance programs remain largely classified, I have reviewed the classified testimony and reports from the Executive Branch that describe in detail how this surveillance has stopped attacks. Two examples where these surveillance programs were used to prevent terrorist attacks were: (1) the attempted bombing of the New York City subway system in September 2009 by Najibullah Zazi and his co-conspirators; and (2) the attempted attack on a Danish newspaper that published cartoons of the Prophet Mohammed in October 2009 by U.S. citizen David Headley and his associates. Regarding the planned bombing of the New York City subway system, the NSA has determined that in early September of 2009, while monitoring the activities of Al Qaeda terrorists in Pakistan, NSA noted contact from an individual in the U.S. that the FBI subsequently identified as Colorado-based Najibullah Zazi. The U.S. Intelligence Community, including the FBI and NSA, worked in concert to determine his relationship with Al Qaeda, as well as identify any foreign or domestic terrorist links. The FBI tracked Zazi as he traveled to New York to meet with co-conspirators, where they were planning to conduct a terrorist attack using hydrogen peroxide bombs placed in backpacks. Zazi and his co-conspirators were subsequently arrested. Zazi eventually pleaded guilty to conspiring to bomb the NYC subway system. Regarding terrorist David Headley, he was also involved in the planning and reconnaissance of the 2008 terrorist attacks in Mumbai, India that killed 166 people, including six Americans. According to NSA, in October 2009, Headley, a Chicago businessman and dual U.S. and Pakistani citizen, was arrested by the FBI as he tried to depart from Chicago O'Hare airport on a trip to Europe. Headley was charged with material support to terrorism based on his involvement in the planning and reconnaissance of the hotel attack in Mumbai 2008. At the time of his arrest, Headley and his colleagues were plotting to attack the Danish newspaper that published the unflattering cartoons of the Prophet Mohammed, at the behest of Al Qaeda. Not only has Congress been briefed on these programs, but laws passed and enacted since 9/11 specifically authorize them. The surveillance programs are authorized by the Foreign Intelligence Surveillance Act (FISA), which itself was enacted by Congress in 1978 to establish the legal structure to carry out these programs, but also to prevent government abuses, such as surveillance of Americans without approval from the federal courts. The Act authorizes the government to gather communications and other information for foreign intelligence purposes. It also establishes privacy protections, oversight mechanisms (including court review), and other restrictions to protect privacy rights of Americans. The laws that have established and reauthorized these programs since 9/11 have passed by mostly overwhelming margins. For example, the phone call business record program was reauthorized most recently on May 26, 2011 by a vote of 72-23 in the Senate and 250-153 in the House. The internet communications program was reauthorized most recently on December 30, 2012 by a vote of 73-22 in the Senate and 301-118 in the House. You may be interested to know that the Senate Intelligence Committee will be proposing changes to these programs to ensure transparency and to make public additional facts. Attached to this letter is an opinion piece I authored in the Washington Post on July 30, 2013 that further highlights our proposed changes. While I very much regret the disclosure of classified information in a way that will damage our ability to identify and stop terrorist activity, I believe it is important to ensure that the public record now available on these programs is accurate and provided with the proper context. Again, thank you for contacting me with your concerns and comments. I appreciate knowing your views and hope you continue to inform me of issues that matter to you. If you have any additional questions or concerns, please do not hesitate to contact my office in Washington, D.C. at (202) 224-3841. Sincerely yours,   Dianne Feinstein          United States Senator Further information about my position on issues of concern to California and the nation are available at my website, Feinstein.senate.gov. You can also receive electronic e-mail updates by subscribing to my e-mail list. Click here to sign up. And please visit my YouTube, Facebook and Twitter for more ways to communicate with me.