‘Just because it is legal doesn’t mean we should do it’
US intelligence figures say Europe is acting ‘mock surprised’ at leaks on NSA
European intelligence agencies were all aware of the type of covert surveillance undertaken by the US National Security Agency (NSA), a former state department official and current director of the Center for Strategic and International Studies (CSIS) has said.
“The European intelligence agencies knew what we were up to, so there was no surprise,” said James Lewis, who led a discussion with senior US intelligence figures at the RSA conference, the large international security industry gathering here last week.
Regarding the outcry over NSA activities, leaked by whistleblower Edward Snowden, he said: “What surprised me was [that], I thought everyone knew this. Clearly this wasn’t the case. [But] my conversations with people in other governments confirmed they knew we were doing this.”
Also on the RSA panel, Richard Clarke, former White House counter-terrorism adviser and now chief executive of Good Harbor consulting – and a member of the advisory committee to President Obama on NSA reform – attributed a degree of “shocked, shocked” mock surprise to lawmakers and foreign governments.
“There were a lot of people – some of them French – who knew this was going on,” he quipped. However, he said the general public in both the US and Europe would not have been aware of such tactics.
Retired former CIA and NSA director Gen Michael Hayden strongly defended the nature and scope of the NSA’s activities. “For people in my work, what constitutes consent of the government is how much of this do you have to know for things to be okay.”
He argued: “There is nothing unlawful going on here, based on the social contract we had coming out of the ’70s. The NSA was authorised by two presidents, approved by Congress by bipartisan majorities in both houses, and overseen by the FISA court. So, good to go”.
“This programme is solidly legal. What we’ve learned, what’s different, is it appears that’s no longer sufficient to define consent of the government.”
Some people, he says, “are saying, “Yeah, but you didn’t tell me. That, I think, is one of the really big tectonics we’re going to have to solve.”
Clarke said when he was in the White House, they used “the Washington Post test. If it leaks – or rather, when it leaks – can you and can the President explain it to the American people and the Congress in a way they find acceptable? I don’t think US people have difficulty with their government doing some things in secret, but if it leaks, you ought to be able to justify it, and the majority of people and Congress should be able to say, “Yeah [it’s okay]”.
“Somewhere along the line, they forgot to do the test . . . there was a disconnect between what we needed to collect and what we did collect. Just because it is legal doesn’t mean we should do it.”
All identified a communications gap between policymakers and the intelligence community. “Policymakers didn’t take the time to explain what they wanted,” said Clarke, noting this had been true for several presidential administrations.
Lewis said he was worried “about the chilling effect of an intrusive oversight process” and how that might alter the ability to collect security information. Hayden complained that agencies found it difficult to satisfy public opinion. “We get criticised for not doing enough to make our citizenry feel safer and, as soon as people feel safe enough, we get criticised for doing too much.”