NSA: “Not (So) Secret Anymore”

Joel Brenner, former Senior Counsel at the National Security Agency, begins a fascinating essay at Lawfare as follows:

The National Security Agency is down in the dumps. It’s used to being heralded for brilliance.  It can’t understand how millions of Americans, not to mention foreigners, think it’s engaged in voracious, useless, and unlawful eavesdropping around the world, and dangerous to liberty at home.  Past intelligence scandals have always involved the failure to collect or understand critical information – the attack on Pearl Harbor in 1941, for example – or unlawful spying on Americans for political reasons, like in 1976.  This one is different.  NSA is being criticized for collecting too muchintelligence, or the wrong foreign intelligence, and for collecting of U.S. telephony metadata that it does under an act of Congress and repeated orders of the Foreign Intelligence Surveillance Court.  Congress knew when it amended the Foreign Intelligence Surveillance Act law how it was being used, and more than a dozen judges have approved the specific uses of this authority.  Nor has there been a whiff of intelligence abuse for political purposes.  We’re in the midst of the only intelligence scandal in history involving practices approved by Congress and the federal courts and subject to heavy and effective oversight.  How did this happen, and what should be done? . . .

In November 2013, at the the Federalist Society’s National Lawyers Convention, Brenner took part in a panel discussion on “Cybersecurity – The Policy and Politics of a Leading National Security Threat.” Also participating were Stephen G. Bradbury, Partner, Dechert LLP and former head, Office of Legal Counsel, United States Department of Justice; Michelle Richardson, Legislative Counsel, American Civil Liberties Union; Paul Rosenzweig, Red Branch Law and Consulting and former Deputy Assistant Secretary for Policy, U.S. Department of Homeland Security Principal; Prof. John Choon Yoo, Emanuel S. Heller Professor of Law, University of California, Berkeley Boalt Hall School of Law; Vincent J. Vitkowsky, Chairman, International & National Security Law Practice Group, the Federalist Society.

You can watch a video of the discussion here.