TECHDIRT: Jennifer Hoelzer's Insider's View Of The Administration's Response To NSA Surveillance Leaks

techdirt.pngOver the last week, I've been accused of writing this post for a host of nefarious reasons. The actual story behind it is much less sinister. 

In case you were interested, here it is:  

Early last week, Mike Masnick asked if I'd be willing to write the week's "Favorite Techdirt Posts of the Week."  As he explains below, each week, someone from the larger Techdirt community recaps the week by summing up their favorite Techdirt posts.  When he asked me to write, neither of us knew the President would hold a press conference that Friday, in fact, I was well on my way to finishing my draft when I heard that the President had addressed the NSA's surveillance programs.    

Given my experience working for Senator Ron Wyden -- the chief critic of the NSA programs -- Mike asked if I'd be willing to revisit my draft with an eye towards discussing the President's statement.  I said I would, but given a prior commitment, I told him that I wouldn't be able to get to it until late Friday night.  He said that was fine as long as he got my draft early Saturday AM. 

It was after midnight when I first read the President's remarks. And -- as you can see -- when I read his declaration of support for the principles of "open debate" and the "democratic process," something inside me snapped.  After countless hours spent helping a U.S. Senator push for just such a debate only to be repeatedly met with intense opposition from this very President's Administration, I found his words infuriating.

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Brian Beutler: "I call this piece Jen Hoelzer's Revenge"

Brian Beutler published the following story on Talking Points Memo, June 21, 2013 http://tpmdc.talkingpointsmemo.com/2013/06/intelligence-committee-wyden-snowden-came.php

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Last year, when the Senate Select Committee on Intelligence met to complete legislation renewing soon-to-expire surveillance laws, Sen. Ron Wyden (D-OR) recognized an opportunity — a long-shot, but an opportunity nonetheless — to advocate for new restrictions on government snooping.

Behind closed doors, well out of earshot of privacy advocates, most other senators, and his own constituents, Wyden sought to amend the bill. He wanted it to direct the Justice Department’s inspector general to determine approximately how many Americans have had the contents of their communications gathered under section 702 of FISA that gave rise to PRISM, and to require government officials to obtain court orders before querying 702 collections with the names of American citizens — in other words, to close a backdoor surveillance loophole.

Both amendments failed, over his pleas, and the committee cleared the broader bill by a wide vote margin.

But what happened next is what really irks civil libertarians and others who want the process of legislating intelligence matters to become more transparent. The chair and vice chair of the committee touted the outcome of the committee vote, while Wyden was prohibited by committee rules from publicly registering and explaining his opposition.

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Ezra Klein Interviews Jennifer Hoelzer: "The intelligence committee ‘can’t tell you what they’re not telling you.’

The following interview appeared on the Washington Post's Wonkblog June 7, 2013WashPo_Logo.jpg

Here’s one takeaway from the NSA revelations: Nobody really trusts the House and Senate Intelligence Committees.

The chairs of both committees have aggressively defended the Obama administration. The Obama administration has repeatedly pointed to oversight from Congress. But few seem comforted. And even on the committees themselves, there was considerable dissent. The New York Times today reported on the strange, long campaigns Sens. Mark Udall and Ron Wyden mounted to bring these programs to public attention.

The problem for Udall and Wyden was they couldn’t tell the American people anything about the programs they were worried about. They couldn’t even tell most of their staffs. “Do you have any idea how frustrating it is to have your boss ask you to get reporters to write about something he can’t tell you about?” wrote Jennifer Hoelzer, who served as Wyden’s communications director. So I asked Hoelzer: How effective can the intelligence committees be if they can’t tell anyone what they know? And if no one trusts the intelligence committees to be effective, is their oversight really enough?

Ezra Klein: You wrote about the experience of being asked to raise awareness and get reporters interested in a top secret program your boss couldn’t describe to you. How do you carry out a task like that?

Jennifer Hoelzer: It’s a challenge! And I think it’s always the challenge with the intelligence committee and the intelligence world. Ron and his intelligence committee staffer John Dickas deserve a lot of credit. There’s so much you can’t say. And sometimes people risk not saying anything because they don’t want to violate classification. If they did, Ron would lose his seat on the committee, and John would lose his clearance, and they couldn’t conduct oversight.

In this case, I don’t have clearance, and I didn’t know what I couldn’t say. So it’s like minesweeper. You just have to ask questions to try to get the outlines of what they’re not telling you. Because they can’t tell you what they’re not telling you. And so there are all these tricks. For instance, you can’t really use adjectives.

 

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What You Should Know About the Foreign Intelligence Surveillence Act

"The program Senators Feinstein and Chambliss publicly referred to today is one that I have been concerned about for years."NSA.jpeg

That was the first sentence in the statement my former boss, Senator Ron Wyden, put out today in response to recent revelations that the NSA has a penchant for collecting citizen phone records and I highly doubt anyone was happier to read it than me.

Seriously, do you have any idea how frustrating it is to have your boss ask you to get reporters to write about something he can't tell you about? I did it for years and let's just say, it stretches you as a communicator.

(If you are interested in learning more about Senator Wyden's efforts to expose the Intelligence Community's reliance on secret legal interpretations -- and the many ways we tried to bring them to light -- you can find a timeline here.)

But, apart from confirming that this is the program he had me railing about, the Senator is barred from saying anything else, at least until the Administration declassifies details about the program and its legal justification. Because, while he may be a senior member of the Senate Select Committee on Intelligence, the executive branch retains the sole authority to classify and declassify information. It's why, for example, President Bushwas able to point to a handful of details supporting his case that torture works, without worrying that someone might be able to declassify (or even acknowledge the existence of) reams of evidence that didn't support his case.

While I have no idea what the Administration will choose to declassify about this NSA program, I am fairly certain that they will -- as they have in the past -- argue that the program is perfectly legal by pointing to the Foreign Intelligence Surveillance Court's approval of their surveillance requests. Their hope, I'm guessing, will be to summon warm fuzzy thoughts of Law and Order and the U.S. Criminal Justice system that we all know and, for the most part, trust.

But, since that's not the case, I thought I'd help you out with some quick FISC FAQ's:

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The Secret to Bipartisanship

Bipartisanship is a lot like swimming.FreeGreatPicture.com-26297-cooperation-handshake.jpg

Let me tell you what I mean:Yeah, I know that sounds nuts. But, having spent at least 10 of my formative years as a competitive swimmer/swim instructor and the better part of the last decade helping a member of Congress craft/communicate bipartisan agreements, I know a little something about both.

There is more than one way to swim. There’s backstroke, breaststroke, doggy paddle, kicking, sculling and even synchronized swimming. You can swim for fun at the local lake, competitively in an Olympic-sized pool or ambitiously across the English Channel.

But, while there are many ways to be a swimmer, there is one thing that separates the people who can swim from the people who can’t. That’s the ability to float. Because, the bottom line is: if you can’t float, you can’t swim.

With me so far?

Well, there is something similar to be said about bipartisanship.

There is more than one way to be bipartisan. Despite what you may have heard, it doesn’t have to be about compromise. Sure, there are occasions when the only way to reach an agreement is to give ground on something that is important to you. But, sometimes, bipartisanship can just mean saying something nice about someone on the other side of the aisle. There are also issues where Democrats and Republicans (gasp) agree and opportunities to negotiate agreements where both sides get what they want. (My grad school negotiating professor called it “expanding the pie.”) And, of course, there are issues that don’t break down along party lines. (Anyone remember SOPA?)

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When the NSA Says "Just Trust Us," Congress Says "Whatever."

Wiretapping.jpgIn the final days of the 112th Congress, President Obama signed two last minute bills. Both were extensions of highly controversial Bush-era policies. Both were scheduled to expire January 1, 2013. And both owe their passage largely to calamitous predictions that the sky would fall if they weren’t reauthorized in time.

One of the bills, of course, dealt with the expiring Bush-era tax breaks. It was the subject of endless coverage and debate. Statistics were graphed, studies were commissioned and reporters cancelled their holiday plans to give John Boehner the Lindsey Lohan treatment. Every presidential candidate was required to say how they would handle the expiring tax breaks and nearly every member of Congress — regardless of how they voted on the final deal — put out a statement explaining their vote to their constituents.

That was not the case with the other bill, which extended the Intelligence Community’s Bush-era warrantless wiretapping authorities. There were no statistics to graph or facts to report on. Cable news wasn’t filled with surveillance experts arguing for improvements to the bill. Reporters were in no position to convey how the law was working. In fact, members of Congress, who voted on the bill, don’t even know how the law they voted on is working.

Congress passed the FISA Amendments Act of 2008 (FAA) in response torevelations that the Bush Administration was massively violating the privacy rights of law-abiding American citizens. Yet, not one of the 374 Members of Congress who voted to rubberstamp the FAA for five more years can say that he or she knows what impact the law is having on the privacy rights of law-abiding American citizens.

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Protest Tips From Someone Who's Been Protested

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QUESTION: Two weeks ago, when you learned that Speaker John Boehner's office was stormed by naked protesters, how did you react? (If this is the first you are hearing about this, a link to the story is above.)

A. I quietly chuckled to myself.

B. I tweeted the story to all of my followers with the preface: “Boehner gets what he deserves!!”

C. I ranted to my wife/husband/neighbor/coworker/Facebook friends about what disrespectful, #($@$&-ing buffoons liberals are.

D. I spent twenty minutes researching the issue and then called my Congressman to voice my thoughts/concerns about federal spending cuts included in sequestration.

OK.  Now, show of hands: Who remembers what the naked protesters were protesting?

When you work on Capitol Hill, you get used to being protested. During my ten years as a hill staffer, I was yelled at, sworn at and spit on.  I saw grown men dressed up as farm animals, children with pictures of dead babies and a camel. (Yes, a camel.)

Because my email address was public, my inbox was regularly flooded with angry emails and form letters. And I once had to help my boss and his pregnant wife escape two Code Pink protesters determined to snare him in a giant fishing net. Neither of those protesters seemed to know -- or care -- that my boss was on their side.

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