Mass surveillance was necessary after 9/11, but not expanding the law to authorize it was a “strategic blunder” that landed the agency in hot water after the Snowden revelations, a former NSA counsel told the agency.
“In the wake of Snowden, our country has lost control of the geopolitical narrative; our companies have lost more than $100 billion in business and counting. Collection has surely suffered,” Joel Brenner told the audience at National Security Agency headquarters in Fort Meade, Maryland on Friday.
“The damage from the Snowden leaks to American foreign intelligence operations, to American prestige, and to American power... has unquestionably been vastly greater” than if the White House had amended the law in 2002 to allow bulk collection of US phone records, Brenner said.
The former NSA inspector general and senior counsel at the agency was speaking at an event marking the anniversary of the 1975 Church hearings on surveillance abuses. The hearings resulted in the 1978 Foreign Intelligence Surveillance Act (FISA).
Former NSA official: Secret phone records grab a mistake: WASHINGTON (AP)Joel Brenner was NSA inspector genera... http://t.co/ovx2Z8l0VQ
— Daily News (@DailyNews724) May 15, 2015
Brenner told the assembled agency officials that not engaging in mass surveillance following the 2001 terrorist attacks would have been “derelict,” but that the way it was done sacrificed a “strategic asset for tactical advantage.”
Unlike the abuses uncovered at the Church and Pike hearings 40 years ago, Brenner insisted, “there hasn't been even a whiff of intelligence abuse for political purposes,” in the surveillance exposed through Edward Snowden, a former NSA contractor. “This was the only intelligence scandal in history involving practices approved by Congress and the federal courts and the president,” he said.
As Brenner was speaking at Fort Meade, Homeland Security Secretary Jeh Johnson was on MSNBC’s “Morning Joe” show, complaining that the Snowden revelations have driven the demand for encryption and cyber-security that was making government surveillance more difficult.
“It is making it harder for the FBI and state and local law enforcement to track crime, to track potential terrorist activity,” Johnson said. “We’ve got to find a solution to this, and we’re thinking about this very actively right now.”
READ MORE: US House votes to reform NSA bulk data collection
House Resolution 2048, adopted in the House of Representatives earlier this week, prohibited the bulk collection of data under Section 215 of the Patriot Act, recently ruled illegal by the Second Circuit Court of Appeals. Critics of the bill, such as Rep. Justin Amash (R-Michigan) say that HR 2048 “actually expands the statutory basis for the large-scale collection of most data.”
This is in line with Brenner’s principal objection to the White House’s handling of the NSA surveillance. In the speech Friday, he maintained that the bulk data collection program was necessary and right, but both the Bush and the Obama administrations never bothered to provide proper legal cover for it. Instead of reforming the FISA regime in 2002 or 2008, the White House simply had the NSA continue collecting data under a classified program called “Stellar Wind,” put into place shortly after 9/11.
“Stellar Wind,” Brenner said, 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.”
Former NSA lawyer says keeping bulk phone record collection secret from the public was a strategic mistake. http://t.co/esrc75FSDS
— The Intercept (@the_intercept) May 15, 2015
Brenner had nothing but contempt for whistleblower Edward Snowden, who exposed the program in 2013, comparing him to former FBI director J. Edgar Hoover and intelligence officials whose abuses led to the Church and Pike hearings in the 1970s.
“Everyone associated with these various programs thought that he was a patriot acting in the national interest,” Brenner said. “Which is precisely why subjective notions of patriotism and national security are insufficient guides for people and agencies that claim to operate under law in a democratic republic.”
Brenner was the Inspector General at NSA from 2002 to 2006, and senior counsel from 2009-2010. In the interim, he was the National Counterintelligence Executive for the Director of National Intelligence (2006-2009). He currently runs a private law and consulting practice and holds a fellowship at MIT.