Executive Branch Intelligence Surveillance & Privacy

Alexander and Inglis Letter to the “NSA/CSS Family,” and the USG's Unconscionably Weak Defense of NSA

Jack Goldsmith
Friday, September 20, 2013, 7:30 AM
Kevin Gosztola at Firedoglake has a copy of a two-page letter from NSA Director Gen.

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Kevin Gosztola at Firedoglake has a copy of a two-page letter from NSA Director Gen. Keith Alexander and NSA Deputy Director John Inglis to the “NSA/CSS family” about the Snowden leaks.  The letter essentially defends NSA from what Alexander and Inglis see as wrongful public portrayals of its activities, and concludes with the claim that “[w]e have weathered storms before and will weather this one together, as well.” One notable aspect of the letter is that it quotes from Ben’s post explaining how the Obama administration should have argued more forcefully that the Snowden revelations reveal that the NSA has acted responsibly and without abuse, a sentiment about which Alexander and Inglis say: “We couldn’t agree more.”  It is unclear if they are agreeing with the substance of Ben’s defense of NSA or with his criticism of the administration’s very tepid defense of NSA, or both. But whichever it is, the letter shows that leaders of the NSA are aware that the USG has done a truly awful job of responding to the often-misleading public characterizations of both the documents Snowden leaked and the ones disclosed by the NSA itself. And yet it does not appear that the Administration is doing much about this vital public relations and good government problem.  This is a large mistake.  The administration needs to appoint one person who can appear in public to put the documents in context, push back against erroneous criticisms and misleading characterizations, and in general portray the activities of the NSA to the outside world the way they are viewed within NSA and intelligence community itself – namely as responsible, under law and oversight, self-scrutinizing and self-correcting, and admitting of mistakes when they are made and improvements instituted in response to mistakes. It seems clear the White House won’t take up this task.  President Obama said soon after Snowden’s first leak that he “welcome[s] this debate.”  He has said virtually nothing of substance since then, and what he has said has given ground and offered only modest defense.  And Lisa Monaco, the President’s intelligence czar, has been practically silent on the issue.  (Compare the speeches and appearances of John Brennan, when he had that position, on drones.) I am confident that the White House’s failure to defend NSA vigorously on this issue has had a devastating impact on morale in the intelligence community, and will likely come back to bite it (the White House) in one way or another.  But in any event, with the White House hiding on this issue, the job of defending the NSA falls to the DNI.  But Director Clapper is largely compromised on this issue, at least so far as public explanation is concerned, because of his statements before Congress.  And he is not the most forceful public defender of NSA activities in any event.  DNI General Counsel Bob Litt has done a better job of public defense, but one gets the sense that he is being held back.  That leaves General Alexander himself, the person in the government who has to date best defended the NSA.  But it would be far better for the government (and NSA) if someone outside NSA were doing the task. There are, of course, arguments against public defenses of NSA.  Some might think it preferable not to be in the awkward position of having to appear to be hiding information when the designated official cannot (because of classified information hurdles, etc.) answer hard questions (and follow-up questions) in public.  Or perhaps the aim is to avoid having to acknowledge further embarrassing mistakes and errors than have already been disclosed.  Or, even less charitably, perhaps the White House or DNI lacks the courage of the convictions that Alexander and Innis spell out in their letter. Whatever the explanation for the monumental failure of public explanation, and whoever is ultimately charged with the task, the administration or at least the intelligence community must change course.  The government cannot rely on outsiders to explain these documents.  It must do so itself, aggressively and comprehensively, even at the expense of revealing more classified information or having to acknowledge embarrassing information.  If it doesn’t do so, the information already leaked, and the information that will be leaked in the weeks and months ahead, will continue to be portrayed in a very unfavorable light.  And NSA, even if it weathers the storm, will find itself heavily battered, sails shredded, stranded in a place it doesn’t want to be.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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