NSA director on NSA domestic wiretaps (to Cong in Oct 2002)
John Gilmore
gnu at toad.com
Mon Dec 19 06:44:51 EST 2005
Paragraph 40, below, is about as bald a statement as an NSA director
could make, saying he needs help to decide what he should be allowed
to wiretap about US persons. We, the privacy community, did not
respond. We were a bit surprised, but that was about the extent of
the support we offered.
Of course, we were living in a time where being anti-paranoia or
anti-war or anti-president was considered treasonous by the president,
and by most of the people who elected him, and many who worked for
him. And we were living in the lost time when we expected the
government to follow clearly written laws, until such time as they
were rewritten. And nobody had ever gotten NSA to stop doing ANYTHING
corrupt, without either suing them, beating them in the legislature,
or shining some bright sunlight on one of their secrets -- in some
cases it took all three. The door of the NSA Director's office has
never been open for privacy activists to come in and review their
secret programs for sanity and constitutionality, though it should be.
His challenge to the NSA work force -- "to keep America free by making
Americans feel safe again" -- is as bogus as TSA's "We're upholding
the right to travel by making travel feel safe, even while we keep
innocent YOU off the plane". It begs the question -- who do we need
to feel safe FROM? Governments are historically thousands of times as
likely to injure you than 'terrorists'. Do you feel safe from Bush
and NSA and TSA today? Are you really sure your government isn't
tapping and tracing you, building databases about who you call and who
you travel with, with or without a warrant from some rubber stamp
court?
Indeed, what good would it have done if the whole privacy and crypto
community had risen up to say, "You should follow the law!"? Bush was
intent on breaking it in secret ANYWAY, and rather than exposing his
treason, NSA followed his orders. Mr. Hayden did not pose the
question as, "We are now wiretapping the foreign communications of US
persons without warrants, in violation of the FISA; do you think this
is OK?", though he was doing so at the time he made this speech. But
that's the question that he and his successor will have to face civil
and criminal charges over.
http://www.nsa.gov/releases/relea00072.html
"Statement for the record by Lieutenant General Michael V. Hayden, USAF,
Director, National Security Agency... 17 October 2002"
...
2. We know our responsibilities for American freedom and security at
NSA. Our workforce takes the events of September 11, 2001 very
personally. By the very nature of their work, our people deeply
internalize their mission. This is personal.
...
25. The final issue - what have we done in response - will allow me to
give some specifics although I may be somewhat limited by the
demands of classification. I will use some of the terms that
Congress has used with us over the past year.
26. It was heartening, for example, to hear Congress echo the phrase
of our SIGINT Director, Maureen Baginski, in the belief that we
need to be "hunters rather than gatherers." She believed and
implemented this strategy well before September 11th, and then she
applied it with a vengeance to al-Qa'ida after the attacks.
...
36. There is a certain irony here. This is one of the few times in the
history of my Agency that the Director has testified in open
session about operational matters. The first was in the mid 1970s
when one of my predecessors sat here nearly mute while being
grilled by members of Congress for intruding upon the privacy
rights of the American people. Largely as a result of those
hearings, NSA is governed today by various executive orders and
laws and these legal restrictions are drilled into NSA employees
and enforced through oversight by all three branches of
government.
37. The second open session was a little over two years ago and I was
the Director at that time. During that session the House
intelligence committee asked me a series of questions with a
single unifying theme:
How could I assure them that I was safeguarding the privacy rights
of those protected by the U.S. constitution and U.S. law? During
that session I even said - without exaggeration on my part or
complaint on yours - that if Usama bin Laden crossed the bridge
from Niagara Falls, Ontario to Niagara Falls, New York, U.S. law
would give him certain protections that I would have to
accommodate in the conduct of my mission. And now the third open
session for the Director of NSA: I am here explaining what my
Agency did or did not know with regard to 19 hijackers who were in
this country legally.
38. When I spoke with our workforce shortly after the September 11th
attacks, I told them that free people always had to decide where
to draw the line between their liberty and their security, and I
noted that the attacks would almost certainly push us as a nation
more toward security. I then gave the NSA workforce a challenge:
We were going to keep America free by making Americans feel safe
again.
39. Let me close by telling you what I hope to get out of the national
dialogue that these committees are fostering. I am not really
helped by being reminded that I need more Arabic linguists or by
someone second-guessing an obscure intercept sitting in our files
that may make more sense today than it did two years ago. What I
really need you to do is to talk to your constituents and find out
where the American people want that line between security and
liberty to be.
40. In the context of NSA's mission, where do we draw the line between
the government's need for CT information about people in the
United States and the privacy interests of people located in the
United States?
Practically speaking, this line-drawing affects the focus of NSA's
activities (foreign versus domestic), the standard under which
surveillances are conducted (probable cause versus reasonable
suspicion, for example), the type of data NSA is permitted to
collect and how, and the rules under which NSA retains and
disseminates information about U.S. persons.
41. These are serious issues that the country addressed, and resolved
to its satisfaction, once before in the mid-1970's. In light of
the events of September 11th, it is appropriate that we, as a
country, readdress them. We need to get it right. We have to find
the right balance between protecting our security and protecting
our liberty. If we fail in this effort by drawing the line in the
wrong place, that is, overly favoring liberty or security, then
the terrorists win and liberty loses in either case.
42. Thank you. I look forward to the committees' questions.
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