Transcript: CSIS panel on NSA’s PRISM surveillance program – Part Six

PART SIX: Partial transcript of the Center for Strategic and International Studies (CSIS) panel on the National Security Agency’s PRISM surveillance program on June 25, 2013. The panelists are: Bob Schieffer, CBS News; Barton Gellman, Washington Post reporter; David Sanger, New York Times reporter; and James Lewis, Senior Fellow at the Center for Strategic and International Studies.

…We’ve been at this war now for about 12 or 13 years and there has certainly been a lot of hints along the line and a lot of statements along the line that the press may or may not have picked up on or didn’t pick up on that would indicate that this kind of thing was beginning to coalesce and come together.

Do you think we’ve just arrived at a point where – I mean, I realize that this guy has set off the firestorm…just a lot of stuff circling around here that somebody finally coalesced and kicked together or is this something that’s sort of a brand new discovery? It doesn’t strike me like that but I’m just curious as to what your views are.

Bob Schieffer, CBS News:
I mean, are you saying that this is somehow has something to do with other things?

Well, I’m not so sure the press has done a great job over the last four or five or six years of doing what you’re doing right now. Because one of the jobs of the press really – at least as I’ve grown up – in the last 4 years is the idea that they would be the watchdog. And there’s been a lot of this stuff out there and we’ve seen a lot of reporting and people have read the Patriot Act and people have heard all of this stuff around. But for the most part, it’s been in bits and rumors and here and there…Do you think the press has failed to some extent in this?

Bob Schieffer, CBS News:
Well, the press always fails…

Every time one of these things happens we always look back and say, “Well, the press fell down on the job this time.” I mean, by and large, I think the press has done a pretty good job.

But, you know, I think after 9/11, a lot of people, including me, didn’t want to go through 9/11 again.

And I am not one who thinks that Edward Snowden is a great hero. You know, sometimes sources are good people and sometimes they’re other kind of people, and this is Bart’s source but I have real questions.

I mean, I said on television a couple of Sundays ago that…people like Martin Luther King, Jr. and Rosa Parks were my heroes but they kind of stayed around. They didn’t run off to China.

And I think if Edward Snowden had a case to make, I don’t think he helped his case by his behavior once this came out.

I actually think – and Bart knows this – I think the Post acted very responsibly in the way they vetted this story. I also think, like Jim, we need to know more about what’s going on here.

But I don’t know – we could always do a better job than we do, I guess that’s what I’d say.

Barton Gellman, Washington Post reporter:
…I really like the framing of the question about whether there was an intelligence failure by the press.

Because, I mean, it’s a fair question because we’re always happy to say that there was an intelligence failure if the U.S. intelligence community, you know, was somehow unable to figure every event, and I don’t think that’s a fair standard to hold them to even though it’s their job to do their best.

So did we fail to understand and present as these things were happening, that they were happening? Sure we did.

But I’ll tell you for sure and in my case at least it was not from a lack of trying.

I mean, my last book on Cheney devoted, I guess, two-and-a-half chapters to the Bush era surveillance programs and I turned up a lot. But what I broke my sword on was exactly what was the NSA doing and especially what was it doing that the Justice Department thought was such a big problem that there was very nearly a mass resignation in March of 2004. And there was a really interesting story to tell if you treat that question as an impenetrable “black box” but I couldn’t figure it out.

So whether Edward Snowden is a whistleblower or a cow or a hero or a villain, what he has done, among other things is to enable a public debate in which we all get to participate in deciding how much power we want the government to have…

Bob Schieffer, CBS News:
…I would just add this. This is all taking place at a time when we’re undergoing a cultural change in this country brought on by a communications revolution and the capabilities that we now have and with the coming of the social media.

You know, people of a younger generation than mine now put on Facebook things that people my age wouldn’t have discussed in mixed company. [Laughter]

I mean, people have different idea of what privacy is now, and I think that somehow factors into all this is some kind of way.

I mean, we see this growing feeling among, especially the younger generation – they don’t believe much of anything that the government or anybody else tells them anymore. Well, I think that has to do with more than just the government running this program that it’s been running. And on the secrecy, I think that has to do with a lot of things going back to Watergate.

David Sanger, New York Times reporter:
…On any given day, I figured I’m lucky if I understand 2% or 3% of what’s going on around me in the U.S. government. So I’m sure there’s a lot – you’ve got to approach these jobs with a lot of humility that we don’t understand a lot but we’re putting a lot of efforts into it.

But if you go back over the past four or give years, if you go back to that article I mentioned that Jim Risen and Eric Lichtblau wrote, if you go back to our coverage of the FISA renewal debate, if you go into our coverage of Sustex and Olympic games and the use of offensive weapons, if you go back and look at other work that Bart has done…I think there has been a steady drum beat. Has it been as broad as we would like? No. But the only way you’d get these stories is by beginning to pull on the string and hope that a little more of it unravels along the way.

Bob Schieffer, CBS News:
And you know, the other part of this is – this is one of the most complicated stories that I can recall in recent times. I mean, you know, we all go back to the old Ronald Reagan trust to verify the government’s telling us, “You’ve got to trust us” but they can’t give us the information that helps us to verify because that is somehow classified.

And it’s very difficult to know exactly what the government has done. They do have these enormous capabilities but have they abused it? You have these people that are supposed to be on the oversight committees on Capitol Hill saying, actually no, and maybe they’re right and maybe they’re wrong. I don’t know but that’s just another thing that makes it a very difficult one to cover.

So I can’t help but think of Dr. Strangelove’s doomsday machine that they never told anybody about when we’re talking about this thing. Well, what good is this program if nobody knows about it? Why are we keeping this a secret?

…I’m 31. I voted for Obama in ’08. Definitely did not vote for him in ’12. This is the context of this story…my generation is having a very hard time believing traditional news outlets, politicians themselves. We’re seeing a degradation of public trust…

James Lewis, Senior Fellow at the Center for Strategic and International Studies:
Well, it’s interesting that you bring that up, and I sometimes define it as the legitimacy, which is you accept unquestioningly the authority of the Congress, the courts, the President, or the press, and say, “Yes, I can trust them.”

It’s a hard problem. So I’m still working through it. And I’ll just give you an initial hypothesis, which is the Internet has had in some – we’ve seen this before – we saw this with the printing press. Floods of new information were available to new audiences. They can read the bible and say, “Yeah, I don’t see any divine right of kings in here.” And we’re going through a similar process. This is the political effect of the Internet. It is degrading the legitimacy of existing institutions. There might be other explanations – government’s over-promise – I don’t know. So work in progress. But this could take a long time to work through.

Bob Schieffer, CBS News:
…And the other part of it is with the coming of the Internet, I mean, most people whether they agree with the editorial policy of David’s newspaper or Bart’s, they generally accepted what was on the news pages as the basic facts because they generally accepted that mainstream media did a certain vetting, that basically we didn’t print anything or broadcast something unless we’ve gone through the trouble to find out it’s true.

Now, you’re overwhelmed with information from every corner, some of which is true and a great deal of which it bears no resemblance to the truth. And I think that is one reason that it’s so difficult now – why people have such questions about what something is true or not…

James Lewis, Senior Fellow at the Center for Strategic and International Studies:
And a quick note on that. Maybe the solution, in part, is more transparency…

You mentioned Dr. Strangelove. In the 2008 report we did on cyber security, we had that quote that’s in it. And a lot of us have been pushing them. We can talk about nuclear weapons. Why can’t we walk about the cyber stuff?

So maybe the initial step is more transparency.

…Since the Internet Service Providers were acknowledged in the article and so much data is available, was there any impact when this was made known to the public? Was there any perceived impact based on the public’s demise of trust for Internet Service Providers?

The second question is does my bill go up or down because of the use of my data?

Barton Gellman, Washington Post reporter:
…The bill you’re paying is the revelations that you are giving to an enormous $30 billion plus a year industry of people you’ve never heard of, like Flurry, Axiom. It’s the ad networks. It’s the marketing people. It’s the big data brokers.

And although it’s true that ideas of privacy are different now and people post things on Facebook, we are not losing our privacy primarily because of the things that we reveal. We’re losing our privacy because of the things that are being done completely without our knowledge or our ability to understand. You click on terms of service that are essentially unregulated. I mean, the only regulation is you can’t say something that is factually untrue but if you try to read it, it’s hard to figure out what fact is even being asserted in those terms. And I’ve recently taken a look at what’s happening behind your back – just purely on the commercial side, you know, when you tap on Angry Birds…

Your taxes are paying for that. When they first started collecting all this data, there was an emergency appropriation. I reported that some hundreds of millions of dollars to get their pots to put the data in and bigger computers to sift through it at the NSA. So there’s some tax costs.

Bob Schieffer, CBS News:
Do you think…for all this expenditure and all this that’s happened, do you think we’re safer now than we were on 9/11?

James Lewis, Senior Fellow at the Center for Strategic and International Studies:
I’ll start by saying that I’m happy because I went to a hacker conference and they gave me a bumper sticker that says “NSA Free Back-up Services”. [Laughter] So you are getting some value.

No, if you compare how – it was a bitter lesson. But if you compare how things worked in the ’90s and people were well-intentioned and were trying hard and how they worked now, we’re better off.

There are problems, and one of the problems is that – there is no other way to do national level surveillance. I was in a huge exercise where we did not use communications surveillance and tried to track terrorists who were in the U.S. We could not find them. So you put all the pieces together. FBI and CIA working together better. NSA has their stuff. All three agencies are talking. We’re better off. NCTC is a plus. We are safer.

Are we safe? I’d leave that to you guys.

I agree that a free and robust press is a cynical nod for a free society like ours, and may it always be that way. On the other hand, I agree with what you said earlier, Bob, that Martin Luther King and others who engage in civil disobedience took their medicine. They didn’t run off…

[Alan] Dershowitz said…the law said that when you knowingly publish classified information, that’s a felony. Did you know that you were publishing classified information?

Barton Gellman, Washington Post reporter:
…Of course I knew I was publishing classified information. It had stamps on it, and I put the stamps in the paper.

And there have been available theories of prosecution for many years now – in fact since 1917 as you know in the Espionage Act – under which a person who publishes information relating to the national defense, even if it’s not classified, doesn’t have a stamp on it – by the way, there are x numbers of active divisions of the Army and down the line – it’s relative to national defense, there have been available theories under which you could prosecute a reporter or a newspaper for publishing that stuff.

And on balance, there has yet to be any administration that thought that that would be the right call to make in terms of how we organize our society. And if they did, then we would have an opportunity to test the constitutionality of an interpretation of that law that would apply it to First Amendment protected activities. And we’ll just have to see.

I’m not a lawyer. I am not at all cavalier about this. But it is true what David said that if you’re going to cover foreign affairs or national security or national defense, it is very difficult to write almost any story which could not be interpreted as breaching the lines of the Espionage Act.

…It’s true to Snowden precipitated this debate. My question is was it a necessary way to precipitate debate?

And the other comment is, it’s important to keep in mind that all of these programs were legal. There wasn’t an illegal aspect about it. Congress enacted these laws. And it’s unfortunate a good many of the congressmen didn’t go to the briefings where they’d learn more about it over the last several years.

Bob Schieffer, CBS News:
…I think one of the things that there should be more attention to is this congressional oversight. And the fact – is it not true that when they had the most recent briefing for the Congress, they unfortunately had it on a Friday afternoon and they all left town because they had to get back home. And I think that’s one thing that deserves a lot more publicity.

Barton Gellman, Washington Post reporter:
Well, in terms of the oversight side, this is extraordinary complex stuff technically, operationally, and legally.

And the way Congress works and the way, in fact, that senior executives work in every branch of government – you need staff to amass the details and advise you on it. And it is a very small minority of members of Congress who have staff with the requisite clearances to even get these briefings. If you’re not on the intelligence committee and to some extent certain appropriation sub-committees or judiciary sub-committees, you don’t have that status, probably 1 in 10. That’s one thing.

Is this thing legal? According to every interpretation of the law that’s happened so far among all three branches of government, what is happening is legal. There are lots of things that are legal or could be legal, depending on what the law was or what the judicial decision was that we, as a society, might like to debate.

Right now, the FISA court – we know now and we didn’t know until now – the FISA court has radically re-interpreted some of the features of the Patriot Act. For example, Section 215 business records. The FBI has been telling us every year, “Only a few dozen times a year do we even use this provision to get business records.” It used to be the interpretation of FISA was that a facility against which you collected business records was a phone number or an email address, and now it is all of them. Now, it is the entirety of the call database at Verizon and each of the other two or three big companies. No one knew they did that. I’m quite confident that if real lawyers – not like me – get a chance to ever read that opinion, there will be very significant disagreement in the legal community about whether it’s constitutional but that can’t be tested right now.

David Sanger, New York Times reporter:
…Do you need these kind of revelations in order to have the debate? History suggests you probably do. Jim mentioned that we managed to have a good debate about nuclear weapons even though everything about nuclear weapons is classified. How you use them, where do we keep them, so forth and so on. But we had a 25-year-long debate that some ended up in the end of the Cuban Missile Crisis 50 years ago, including the conditions under which we would use nuclear weapons.

In the case of drones, it actually took a very active press writing about the subject every few weeks in order to force the government of the United States to begin to debate out the question of the conditions under which we would use drones.

In the case of offensive cyber, it’s been the same thing. You needed revelations in order for there to be a debate and so far it’s a very small debate about whether or not we want to be using this new class of weapon.

And I think as the stories that Bart has run has indicated, you wouldn’t have the debate unless people can stop and say, “Well, wait a minute. Does a law that was written when the only metadata that you could look at was an address on the outside of an envelope still apply in an era where you’re walking around with a cell phone and that as you move from one tower to another, somebody could figure out – they say that they don’t – but somebody could figure out exactly where you are?” So the nature of the data is so much richer today that applying a law that was written 30 or 40 years ago may not make sense anymore.

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