The House Intelligence Committee met yesterday behind closed doors with FBI, NSA and Justice Department officials. The agenda included an update on the recent public disclosures of the government’s enormous telephone and internet tracking operations. A former CIA employee identified himself as the source of these disclosures; his whereabouts are unknown. To some he’s a hero, but others say he is likely to be criminally prosecuted for leaking classified information and could face decades in jail. Understanding the distinction between whistle-blowers who deserve protection and leakers who should face charges.

Guests

  • Jesselyn Radack national security and human rights director at Government Accountability Project.
  • Scott Fredericksen managing partner at the law firm Foley & Lardner, and a former federal prosecutor and independent counsel.
  • Matthew Cooper editor of National Journal Daily.

Transcript

  • 10:06:56

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. U.S. Senate Intelligence Chair Dianne Feinstein of California accused Edward Snowden of committing an act of treason. Others hail him as a hero. Reactions to the ex-government contractor who identified himself as the source of recent disclosures about vast government surveillance programs have been decidedly mixed.

  • 10:07:25

    MS. DIANE REHMJoining me to talk about the case and its implications, Jesselyn Radack of the Government Accountability Project, Matthew Cooper of National Daily Journal and Scott Fredericksen, an attorney and former federal prosecutor. I'll be interested in your reactions. Give us a call, 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or send us a tweet. Good morning to all of you.

  • 10:08:04

    MR. SCOTT FREDERICKSENGood morning, Diane.

  • 10:08:04

    MS. JESSELYN RADACKGood morning.

  • 10:08:05

    REHMGood to see you. Matt, you wrote yesterday you think there's lots more coming. Like what?

  • 10:08:15

    MR. MATTHEW COOPERWell, I wrote about -- with my colleague Garance Franke-Ruta of The Atlantic about all the questions we still have about Edward Snowden, why he went to China. Did he act alone? What is the import of what he leaked really on national security? Did it sort of really affect the life of those who wish to do this country harm who already presumably knew not to go -- make a lot of cellphone calls?

  • 10:08:45

    MR. MATTHEW COOPERSo we had a lot of questions, and we posed them about this man sort of in an effort to get everybody to kind of breathe deep, calm down. Let's not lionize him. Let's not call him a traitor. And let's figure out what we know and what we don't know.

  • 10:08:59

    REHMWhat do you think, Scott Fredericksen, time to take a deep breath or make our judgments?

  • 10:09:09

    FREDERICKSENWell, I side with Matt. In most of these situations, it's always wise to take a deep breath right now. I think it's difficult and wrong to lionize him. I don't think he's a whistleblower. He's a leaker of classified information, as it appears right now. And it's likely that we're going to see charges prepared by the government in an attempt to extradite him. And then the system that we have that he seemingly intentionally violated will give him a full right to a trial after that.

  • 10:09:44

    REHMJesselyn, hero whistleblower or criminal?

  • 10:09:49

    RADACKYou know, I don't like labeling him. I think he does the classic definition of a whistleblower which, by law, is someone who discloses what he reasonably believes evidences fraud, waste, abuse or illegality. And I believe the disclosures exhibit incredible illegality because they show the violation of two major laws on the books in terms of the Patriot Act and the Foreign Intelligence Surveillance Act.

  • 10:10:18

    REHMKeep going about that.

  • 10:10:21

    RADACKUnder both of those acts, we are not allowed to surveil, in any kind of way, domestic-to-domestic communications. And certainly, if there is someone, a bad guy in America who's doing bad things, who's American, there are procedures you follow to get a search warrant, and then you can get their information. But blanket, dragnet and mass surveillance of millions of Americans with no probable cause and no suspicion whatsoever of any wrongdoing is disturbing and violates the letter of these laws.

  • 10:10:56

    REHMWhat about the fact that the Congress was informed?

  • 10:11:02

    RADACKWell, the Congress was informed. But there was a secret interpretation of Section 215, which prohibits gathering information on Americans unless you're doing an investigation aimed at protecting against international terrorism or clandestine intelligence activity. So the Gang of Eight and, you know, the intelligence committees were briefed. But as Senators Wyden and Udall said, if Americans were aware of the secret interpretation of Section 215 in the Patriot Act, they would be angry and shocked.

  • 10:11:42

    REHMSo delineate for us the interpretation by the public and the so-called secret interpretations, Scott.

  • 10:11:53

    FREDERICKSENWell, I think -- with all due respect, I think that reflects kind of the hysterical interpretation of what's been disclosed here. What we do know is that under orders reviewed by the court, laws under a program and the FISA court, which was passed according to laws of Congress, which have been sustained by the courts, the NSA obtained metadata. They haven't -- it's not surveillance. That's not reading them. That's metadata. Courts -- the Supreme Court, and I think it was Smith v. Maryland, established that metadata is not protected.

  • 10:12:33

    FREDERICKSENThat's the same information that's on your phone bill. It's public information in that sense. So what we know now is that they were -- they -- the NSA was able to obtain metadata pursuant to an order reviewed by the FISA court not for surveillance. They have to go back and get further orders if they want to actually look at further and do actual surveillance. They have to go to a judge to do that. So...

  • 10:12:59

    REHMHow do we know that that's all they did, Matt Cooper?

  • 10:13:04

    COOPERWell, I think we still need to find that out. If Edward Snowden is to believe -- to be believed, excuse me, he said that he had the ability to tap into -- to actually monitor the contents of any phone call. Now, a lot of people have expressed skepticism about whether he could do that, legally or even technically he could do some of the things he claimed, like listen to the president's phone calls. I found that farfetched.

  • 10:13:30

    COOPERBut nevertheless, I think we still don't know what defines the difference between kind of broad sucking in massive amounts of data and what violate -- what constitutes a violation of privacy rights.

  • 10:13:42

    REHMJesselyn.

  • 10:13:43

    RADACKFirst of all, I don't like being referred to as hysterical. But the NSA -- I don't know if Mr. Snowden in particular could tap the president phone or he -- or what he says. But first of all, you -- it's not OK to surveil all Americans. I mean, these are laws on the books, and the actual language of the law says that you can surveil domestic and foreign communications if there's a reason or suspicion. In terms of metadata, it's kind of counterintuitive. But you can learn more about a person from the metadata than from the content. A lot...

  • 10:14:23

    REHMHow come?

  • 10:14:24

    RADACKBecause metadata tells you who exactly they're associating with, how frequently, what duration and then who those other people are associating with. So I think anyone who's actually, you know, a cryptologist would confirm for you that they can get a lot more information from the metadata. And I know that's been offered as a soothing point, don't worry, we're not reading your content.

  • 10:14:49

    RADACKI do think they are also getting at a content because reading the slides at the prison program -- I mean the PRISM program, my client, Bill Binney, wrote the algorithm that underlies that program back when he had been at NSA. And it's gone through numerous incarnations of stellar wind and rack time, numerous iterations of this program that collects both metadata and content. And it's gone through many iterations, and PRISM is one of the most recent.

  • 10:15:19

    RADACKAnd there are probably, I'm pretty sure, other similar programs to PRISM that are out there. And maybe Mr. Snowden didn't know every single detail or he personally might not have been able to do it, but the people who were working in the skunk work part of CIA will definitely be able to do it because my clients were doing that.

  • 10:15:41

    REHMMatt Cooper.

  • 10:15:42

    COOPERWell, I think you raised all good points. And just to build on what you said, you know, I think we're past the point where kind of trust the government is really going to be legitimate response here. You know, the FISA court so overwhelmingly approved every request at looking...

  • 10:15:59

    REHMThere haven't been any request denied, have there?

  • 10:16:03

    COOPERMinuscule….

  • 10:16:04

    REHMOne...

  • 10:16:04

    RADACKThere has been one request...

  • 10:16:05

    REHMOK.

  • 10:16:06

    RADACK...that has ever been not -- has been denied.

  • 10:16:07

    REHMOK.

  • 10:16:08

    COOPERSo it's -- I think when you have members of Congress even though it sounds like the information was made available to most members or to all members but a lot didn't partake of it or didn't know about it or didn't have a sense of how big it was, I think it's probably not enough to say at this point that well, it's all being monitored.

  • 10:16:26

    COOPERIt's all lawful. It's all kosher. I think there is a debate coming, and it's going to split both parties. I think we'll see more civil libertarian Democrats like Sens. Udall and Wyden raising questions. We'll see more libertarian Republicans like Rand Paul raising questions. And this is going to be a very interesting conversation we're about to have.

  • 10:16:48

    REHMRand Paul made quite a statement this morning. It was his father Ron Paul who said that perhaps a drone might take this young man out. I thought that was a pretty outrageous statement to make, Scott Fredericksen.

  • 10:17:09

    FREDERICKSENYes. I think that's way out of bounds and not based on reality as we know it. You know, I would agree with my colleagues. There -- here. There is -- this is appropriate for debate, and a debate is coming. I don't think it will split the parties. I think in the end there's a recognition that the -- and there is a tradeoff from privacy interest to do this. There's no question. But, you know, 9/11 was real, and there are -- have been subsequent attacks and that there's constantly an attempt to do that.

  • 10:17:42

    FREDERICKSENAnd the question we need to debate, is this a sufficient tradeoff right now? I guess my point is on its face right now, there is nothing to indicate this is an illegal scheme going on. This was not a whistleblower. Indeed, if he wanted to be a whistleblower, he could have gone to his IG where he worked. He could have gone to the IG at the NSA. He could have filed a lawsuit under seal. He could have gone to Congress. He didn't. He went to the press.

  • 10:18:05

    REHMAnd one prior so-called whistleblower did exactly that and apparently was totally blown off. So, I mean, you know, if you cannot find the protection within the system, maybe the only way you can start that conversation is by going to the public. Short break here. We'll take your calls, talk more when we come back. Stay with us.

  • 10:20:04

    REHMAnd welcome back. As we talk about the surveillance -- the very broad surveillance that was disclosed by an ex-employee of a federal contractor, Edward Snowden. I'm talking now with: Matthew Cooper of the National Journal Daily, Scott Fredericksen, he is a private attorney, former federal prosecutor and independent counsel, and Jesselyn Radack of the Government Accountability Project.

  • 10:20:45

    REHMWe are going to open the phone shortly. Here's a tweet, "Metadata collected includes your phone ID, your location 24/7 based on tower ID and significant other data that does not appear on a bill." Scott.

  • 10:21:08

    FREDERICKSENI don't think that it includes your location. I don't think the metadata -- the metadata, essentially, is what's on your bill, so it shows all the calls you made, the incoming calls, the time of the calls, lengths of the calls. But I don't think it can -- the metadata -- establish your location 24/7.

  • 10:21:27

    REHMJessica.

  • 10:21:28

    RADACKJesselyn.

  • 10:21:29

    REHMForgive me. Jesselyn.

  • 10:21:30

    RADACKOne of the slides in the document says -- documents written by the NSA that were put up by Snowden says that they can track location, which is very easy because anytime you use a cellphone, you can easily track which tower it bounced off of.

  • 10:21:46

    REHMMatt Cooper, how is the pubic reacting here both to what this young man has done and to the awareness that the government is collecting all this information?

  • 10:22:01

    COOPERI don't think the polls have been very determinative yet, Diane. The public is, by one account that I saw, you know, suspicious generally of the kind of surveillance programs but not particularly worried in their own personal case about being surveilled. So I think these are the kind of impressions that take a while to form. You know, if a pollster asked you about something you're not really thinking about, you respond. In a few weeks, if there's a trial of this young man and other things, public opinions may start to cement more.

  • 10:22:35

    REHMDo you think he is a hero, Jesselyn?

  • 10:22:39

    RADACKI think he is a hero, and he did something incredibly brave. And he knew he was taking an extreme risk and probably would never be able to return to this country and would probably be under, you know, the subject of worldwide manhunt, which he is. Worldwide manhunt more appropriate to someone like Osama bin Laden not Mr. Snowden or Julian Assange.

  • 10:23:04

    RADACKAnd like I said, I mean, if you read the law of a whistleblower, it says someone who discloses fraud, waste, abuse, illegality and, I guess, maybe the difference we're having is whether or not anything illegal happened. And I know a lot of people including the president and members of Congress have said it was all legal. Well, it's not up to the lawbreaker to say whether or not something is legal.

  • 10:23:32

    RADACKIf you read the plain language of Section 215 on the face of that law, it says it requires a connection to an investigation aimed at protecting against international terrorism or clandestine intelligence activities. I don't think I've been involved in any of that, so I'm not sure why NSA or anyone else in the government would need all of my digital data even if it only were the metadata.

  • 10:24:02

    REHMScott.

  • 10:24:03

    FREDERICKSENWell, let's start with a few things here. The information disclosed was classified. It was disclosed about programs that are conducted pursuant to laws passed by Congress and orders obtained by courts -- by the FISA court, the chief judge whom is Reggie Walton here. And let me tell you, the last thing anybody would ever call Reggie Walton is a rubber stamp. And the obtaining metadata, which is all it's been attained here, is not unconstitutional. It's not protected. The Supreme Court already ruled.

  • 10:24:39

    FREDERICKSENSo on its face, there is nothing illegal. I would commend to someone who is considering whether this young man is a hero or something else a couple of things. First, I read today's columns by Tom Friedman and David Brooks, and I think they have the right take on this young man. I think we have another young man, another disaffected young male who's made his own decision.

  • 10:25:06

    FREDERICKSENAnd keep in mind, we have someone here couldn't finish high school, couldn't finish community college, wash out in Army after four months and now unilaterally has decided that he is going to out this classified information and then go to China. Now, there are ways, if he's dissatisfied with this, to do this. He can work with someone like Jesselyn, who represents clients. He can go to and get involved politically. But you don't have to leak classified documents and information, which potentially -- and we don't know - but potentially have a great deal of harm for us.

  • 10:25:43

    REHMDoes the fact that he is actually outside government working for a contractor make a difference?

  • 10:25:54

    FREDERICKSENI don't think so. I mean, when you work for something like Booz Allen and you're going to -- on a contact where you're working for the government, you sign agreements on confidentiality, you're obligated the same as if you were a federal employee.

  • 10:26:07

    REHMMatt Cooper.

  • 10:26:08

    COOPERI think Scott raises some interesting points. One -- just to push off from what he said, you know, I think we need to think about the leak and the leaker. And we've had instances in the past where we've been grateful for the leak and then maybe have had questions about the leaker. For instance, the most celebrated leaker Deep Throat turned out to be Mark Felt, a top official at the FBI who had his own motives for leaking to Bob Woodward about Watergate.

  • 10:26:34

    COOPERHe was angry about the FBI cut -- being cut out of a lot of those black bag jobs that Nixon ordered. He was angry about being passed over to be director of the FBI. Often, the leaker is not the most likable character, but the leak itself may serve a public good. Now, I don't know if that's the case here, but I think the fact that this young man didn't finish high school seemed -- doesn't seemed to be germane at all.

  • 10:27:02

    COOPERThe issue of whether he went to Harvard or had a GED is not really the issue. The -- I think it's important to question his motives to ask about why he is in China, why he rather casually in his video said, oh, there's a CIA station up the road here, which seemed more than a bit cavalier. But I think we do have to separate the leak from the leakers.

  • 10:27:24

    REHMJesselyn.

  • 10:27:25

    RADACKI agree. The first thing that happens when a whistleblower is exposed is immediately instead of paying attention to the message, we shoot the messenger, and whistleblowers, invariably, are always described as out for fame or profit or self-aggrandizement or revenge. But really, under the whistleblower law, motive doesn't matter.

  • 10:27:49

    RADACKA lot of people are quite angry at their employer by the time they blew the whistle because they've been demoted or transferred or subject to the death by 1,000 paper cuts of things. So -- but I really think it's -- we shouldn't be focusing on Snowden. We should be focusing on the content of what he disclosed. And like I said, people can keep saying it's legal, it's legal, it's legal, but then you wonder, why if it's legal, why is no one talking about it?

  • 10:28:17

    RADACKWhy was it so classified that they had to do a secret interpretation of it that only a few members of Congress were aware of? And also to the argument that the information disclosed was classified, I would say that we have such a problem with over classification, and Republicans and Democrats agree on this that -- and also the executive order that describes how to classify a document -- a lot of stuff is improperly classified.

  • 10:28:48

    RADACKYou cannot use classification to hide illegality. And also, a number of things deemed classified, as in the case of Tom Drake, when examined by the classification czar himself, Bill Leonard, turned out not to be. He even sued his former agency for improperly classifying so much information.

  • 10:29:10

    REHMScott, do you actually believe that Edward Snowden, as Diane Feinstein has characterized it, committed an act of treason?

  • 10:29:23

    FREDERICKSENI think he's likely to be charged with that.

  • 10:29:25

    REHMWith treason.

  • 10:29:26

    FREDERICKSENWith treason. And, look, as opposed to his decision on his own -- and let me be clear. I'm not trying to attack his personality, but I'm demonstrating that someone like this person has taken upon himself...

  • 10:29:41

    REHMWhat do you mean like this person?

  • 10:29:44

    FREDERICKSENAn individual...

  • 10:29:46

    REHMBecause he's a high school dropout?

  • 10:29:48

    FREDERICKSENNo, no.

  • 10:29:49

    REHMBecause he left the armed services? I mean, what do you mean, like this person?

  • 10:29:57

    FREDERICKSENOh, it's a good question. I'm saying that an individual has taken it upon themselves, someone who has demonstrated he's disaffected, seemingly. Keep in mind this is someone who, in his interview with The Garden -- Guardian, has made these kind of grandiose assertions that, you know, he could even tap into the president, a federal judge. He could identify every...

  • 10:30:16

    REHMHow do we know that that is not true?

  • 10:30:19

    FREDERICKSENWe don't know that...

  • 10:30:20

    REHMRight.

  • 10:30:20

    FREDERICKSEN...but I would suspect that's wildly grandiose and not true, and everyone who has commented on that says that isn't true.

  • 10:30:27

    REHMYou know, what's interesting to me is that a number of people who are geniuses at computer language have not been very successful academically, and I find myself wondering whether this young man falls into that category, therefore dropped out of high school because he was bored, left the armed services because he didn't fit in and knew it. Rather, he found his niche, and now he's being accused of treason. Matt.

  • 10:31:09

    COOPERWell, a couple of thoughts. I mean, I think he has complicated his story and his life considerably by going to China. You know, I...

  • 10:31:20

    REHMYou mean, if he had done...

  • 10:31:21

    COOPERWell, if he had gone to another country, I think it would be less complicated for the story he's trying to tell.

  • 10:31:27

    REHMWhy? Why?

  • 10:31:29

    COOPERWell, because I think if you imagine...

  • 10:31:31

    REHMThe president just met with the leader of China.

  • 10:31:33

    COOPERNo -- sure. We're obviously -- look, China is not known for its press freedoms. Even if Hong Kong has a kind of vibrancy and is courageously fighting for its freedoms, we know Beijing still has a very heavy hand there. I mean, I -- as I wrote with my colleague Garance in The Atlantic and National Journal, if Daniel Ellsberg had popped up in Belgrade, Yugoslavia, which itself is a bit outside the Warsaw Pact, in 1971, days after the Pentagon Papers and days after Nixon-Brezhnev summit, it would have seriously clouded the way we think of Daniel Ellsberg.

  • 10:32:13

    COOPERI don't think -- I'm just saying I think we're -- the question of NSA security surveillance, what's appropriate, what's not was one question. But when the leaker goes to China, it does -- it's just bound to complicate the debate.

  • 10:32:27

    REHMMatthew Cooper of National Journal daily, and you're listening to "The Diane Rehm Show." Jesselyn, yesterday, Floyd Abrams, a renowned attorney on First Amendment issues, was on this program. He said that while he would support this young man, Edward Snowden, in his First Amendment rights, he had likely become a criminal in terms of the Fourth Amendment. How do you see it?

  • 10:33:05

    RADACKIn terms of the Fourth Amendment, I would see that -- I don't know how he is a criminal. I think the United States has been the criminal in terms of the Fourth Amendment, which protects against illegal searches and seizures when you have bulk indiscriminate collection of purely domestic communications of Americans not suspected of any crime. And he may have just been saying -- you know, the First Amendment issue here is crystal-clear, and the Fourth Amendment, I'm not sure how he would -- what his issue with the Fourth Amendment was exactly.

  • 10:33:39

    REHMHe did say it was likely he would be charged as a criminal.

  • 10:33:47

    RADACKI agree. I wanted to say one thing about that. In terms of treason, people who have been caught, Americans who have been caught fighting on the battlefield or creating bombs like Jose Padilla and Yaser Hamdi and John Walker Lindh, none of them were charged with treason. So I think that would certainly be overcharging in the Espionage Act, which has been the one that they used against all these so-called leakers who are actually whistleblowers, I think would be more likely.

  • 10:34:12

    REHMAll right. We're going to open the phones now, 800-433-8850, first to Knoxville, Tenn. Good morning, Ron. You're on the air.

  • 10:34:26

    RONGood morning, Diane. Thank you for having me on. I have two comments, and I'm trying to put this on a bit of historical perspective. You know, the idea that our government and government security agencies can provide their own oversight and that their oversight can be believed as doubtful at best -- I'm not really much of a conspiracy theorist.

  • 10:34:49

    RONBut the activity of the -- the activities of the CIA in the '50s, '60s and early '70s in Central America and South America that led -- that actually was part of the reason why the FISA courts were created in the late '70s was to provide a legal means for that, and also to rein the CIA under control is a big problem for Americans that have much of a sense of history in the way our government tends to overreact and overreach when -- in times of historical events.

  • 10:35:21

    RONThat leads me to my second statement, which is what I hope comes out of this is that, you know, we as a society lost many of our private understanding of our own processes, and we gave up a lot of our own personal liberties and freedom post 9/11, most of them very understandably. I think our government went one way, and I hope that what this signifies and what will -- this will lead to is the pendulum for our society starting to swing back to a more moderate and more level way to deal with this moving forward.

  • 10:36:00

    REHMAll right, sir. Thanks for calling. Scott.

  • 10:36:03

    FREDERICKSENWell, it's a legitimate question for public debate. And I would disagree, and I disagree with the last comment that the U.S. is the criminal here -- just the opposite here. As far as the trade-off between national security and privacy, that's the question we all have to determine. I would suggest that as far as we know now, what has happened here appears to be, number one, certainly legal on its face, but, number two, a fair trade-off. We cannot afford to deliberately blind ourselves to the data that's out there from mining, the big data. To do otherwise, I think, will leave us exposed.

  • 10:36:48

    REHMHow do you see that, Jesselyn, the argument between security by the CIA or any other organization and the freedom to know by the public?

  • 10:37:03

    RADACKI generally think that the liberty versus security argument is a false dichotomy that we've been operating under for the last decade. And as Ben Franklin said, people who would sacrifice liberty for security deserve neither.

  • 10:37:19

    REHMJesselyn Radack, she's at the Government Accountability Project. More of your calls, comments when we come back from Cincinnati, Florida, St. Louis, Chicago. We'll get to all of you.

  • 10:40:04

    REHMAnd we have an email from Brent, who's listening over in Bel Air on WYPR. He says, "There's much babble about the harm done to the U.S. by Snowden's release of info. We heard the same cries of despair 40 years ago with the release of the then top secret Pentagon papers. I'm still waiting to learn what harm came from the ladder. If Snowden has harmed the U.S., let's hear exactly why." Scott, compare Edward Snowden, if you would, to Daniel Ellsberg.

  • 10:40:51

    FREDERICKSENSure. And as Jesselyn indicates, you know, Daniel Ellsberg has, you know, commented publicly in favor of Daniel -- Snowden. I think they're completely different. I think Daniel Ellsberg outed the Pentagon papers, which reflected kind of historical decision making in the Vietnam War that led to where the country was there.

  • 10:41:13

    FREDERICKSENIt didn't implicate any classified information that might put the country in danger, if I recall correctly. It didn't have that impact at all. Snowden has revealed a top secret program called PRISM. He's revealed what and how this program operates. And we don't know what else. There's more coming. And then he heads to China.

  • 10:41:41

    REHMAnd then the question becomes, how is the country endangered by the release of this information?

  • 10:41:50

    FREDERICKSENSure. And then this may become a problem when the government has to try and prove its case against Snowden by revealing exactly, with perhaps additional classified information, what damage may have been done. And that's always an issue in these prosecutions. But I think it's, we can say right now, that revealing PRISM, this top secret program, how it works and the scale. It's -- potentially, it's possible that this was no -- there was no damage. But I don't think it's his to make that decision.

  • 10:42:18

    REHMJesselyn.

  • 10:42:19

    RADACKThis question of damage has been present in every one of these cases. Daniel Ellsberg, the patriarch of whistleblowers, was prosecuted under the same provision, espionage, as Manning and Drake and Snowden, if he ended up back here. In Manning's case, we haven't seen the damage reports from the government yet. His trial began last week. In terms of Drake, they argued that there was harm and that he had caused all these harm.

  • 10:42:48

    RADACKAnd then it turned out, during the pre-trial proceedings they said, well, we're going to look at -- it may not have harmed anything yet. We're going to look at -- we're going to include future harm. And they've made that same argument also with Manning. Like, maybe nothing bad happened yet, but we have to calculate that it could, which is really scary when you're thinking about future crime or future harm. That's a -- well, that's -- minority report's tough.

  • 10:43:14

    REHMMatt Cooper.

  • 10:43:15

    COOPERWell, I'd -- I think I'd err on Scott's side on this. I think it's -- because the government has not yet detailed every consequence of a particular leak does not mean there are no consequences. I mean, we have -- thus far had, you know, the chairs of the intelligence committees on the House of Senate say that this PRISM operation did pick up some plots and did foil some plots already.

  • 10:43:44

    COOPERIn the case I'm all too familiar with, the leak of the identity of CIA operative Valerie Plame, the government did not do a deep -- did not release a detailed after action report about the consequences of hers. But anyone you talk to now says that there were real consequences for all the people she worked with in the past, all the cover she had had and such. So I think the fact that we don't have detailed information yet does not mean no harm was done here.

  • 10:44:14

    REHMAnd here's the problem with that: You all know as well as I that faith in government doing the right thing has dropped to really barely quantitatable levels. So for the government, for Dianne Feinstein to call this treason because she knows something that the rest of us may not know may not ring so true with the people.

  • 10:44:53

    COOPERAnd I think you're absolutely right, Diane. I think people are skeptical of government. They have a right to be. You know, they are less skeptical if pollsters are to be believed about the military, and certainly the military and others have said that Bradley Manning's actions and that leak case have had extraordinary consequences. You know, I think this comparing him to Ellsberg and other leakers is a tricky business, which is why...

  • 10:45:18

    REHMSure.

  • 10:45:19

    COOPER...I raised before the question of, you know, it's more important to focus on the leak than the leaker. The leaker almost always is a weird character and with sort of odd collection of motives and won't parse out eventually why he's in China and not Iceland and other things.

  • 10:45:34

    REHMAnd by the way, we have a tweet telling us that Edward Snowden got kicked out of the Army because he broke both legs in training. Let's go to Cincinnati, Ohio. Good morning, Michael. You're on the air.

  • 10:45:56

    MICHAELGood morning. I wanted to comment on the argument of security versus privacy. And, you know, I know that these are dangerous times and whatnot, but we're not -- there's no sunset on this program, this intelligence program. We are talking about the privacy -- given away the privacy of every future generation of America. And I don't think -- whatever peril we're facing right now, I don't think we have the right to do that. Again, there is no sunset on this program. It's not going to come to an end.

  • 10:46:30

    REHMAll right. Scott.

  • 10:46:32

    FREDERICKSENWell, there's no end to this program. You're absolutely right. It's not meant to, I would hope not. I would hope we're not going to stop doing our best to protect this country. I mean, through all this discussion, we have both the chairman of the Senate Intelligence Committee, Dianne Feinstein. We have the chairman of the House, a Republican, Mike Rogers, who are saying damage has been done, and this program has saved lives, the PRISM.

  • 10:46:59

    FREDERICKSENIt stopped the bombing of the subway -- plot to bomb in the subway in New York, and it has caught other things. This is what's been disclosed out there. So, you know, today, we can't afford to blind ourselves. You have to mind the big data. I mean, for heaven's sake, so as Google, so as -- they're all doing that. If you get on the computer right now, the person following your strokes right now, it's not the government. It's Google or Facebook or otherwise is following you.

  • 10:47:30

    REHMJesselyn.

  • 10:47:31

    RADACKBut the government has backdoored itself into Google and Apple and Verizon and all the major providers.

  • 10:47:36

    REHMIn other words, we know we're getting on those.

  • 10:47:39

    RADACKRight. Yeah. Technically, it's Google, but really it's the government that has access to that and is storing it in a big data facility store -- data storage facility they're building in Utah. And, again, I have -- I don't have a problem with collecting information on Americans if they're suspected of something, and there are many tools in the government's arsenal to do that legally if there's some kind of probable cause or even reasonable suspicion.

  • 10:48:08

    RADACKBut blanket surveilling everybody,, that's completely un-American, we fought a revolution against a general warrants of the British and having some kind of warrant that, frankly, I don't think the FISA court had the -- I don't think that's a lawful order because it involve nothing foreign.

  • 10:48:24

    REHMAnd I want to correct something I said that Edward Snowden was not kicked out at the Army. He had to drop out because both those legs were broken. Matt, you wanted to say something.

  • 10:48:43

    COOPERI was just can say, you know, one period we can look at for some guidance in this is the 1970s when this -- a lot of revolutions about the CIA came out that it had been involved in, you know, activities that many considered unsavory, others considered necessary for national security, assassinations and all sorts of things.

  • 10:48:55

    REHMAnd there were oversight hearings, the public hearings.

  • 10:49:01

    COOPERYeah. And there were very public oversight hearings, and, you know, the country went through debate. It passed the laws that curtail the intelligence community. Some say that they were -- went too far, others, I think, they were quite appropriate, but it was a fairly healthy debate. I think we'll be better off if we get to that.

  • 10:49:20

    REHMAll right. To St. Louis, Mo. Good morning, Justin.

  • 10:49:25

    JUSTINDiane, I've always wanted to tell you I find your candor and your voice a refreshing taste in all debates, and I thank you for that.

  • 10:49:35

    REHMThank you.

  • 10:49:36

    JUSTINAnd my comment in question is that as a high school drop, I think it is relevant to point that he's a high school dropout because I can't imagine any high school dropout, that I know of, passing up on a six-figure income and, I believe, living in Hawaii to then have to be the most wanted man essentially in the world. To me, that is a big sign. The second thing is that, you know, my bills are private.

  • 10:50:05

    JUSTINIf somebody goes into my mailbox and takes my phone bill with my "metadata," that's a federal offense, and they can get arrested. So the fact that the government says, oh, well, it's public information. Oh, OK, senator whoever, let's see your bill. Let's publish them and let's see who all you talk to and at what time.

  • 10:50:22

    JUSTINAnd then finally, the question I would ask, to turn the table on those lack of privacy advocates and to say, you know, the argument I always hear is, if you're doing nothing wrong and you have nothing to hide, then you don't care if there's cameras everywhere, and you don't care if this, that and the other. Well, government, if you're doing nothing wrong, why is this so top secret? Why is this so hidden? I mean, stores put cameras up, fake cameras so that thieves don't steal because they think they're being watched.

  • 10:50:50

    REHMAll right. Scott.

  • 10:50:52

    FREDERICKSENWell, I think we have taken a deep breath here. A couple things. First, this is not surveillance going on. This is collection of data, metadata. They're not there reading your bills. They're collecting it so that if at some point, they have to or they get additional information that connects the dots, they go back and they get an order to reveal that. So let's just take a deep breath...

  • 10:51:19

    REHMAnd...

  • 10:51:19

    FREDERICKSEN...and understand what they're collecting, but they're not surveilling.

  • 10:51:21

    REHMYeah.

  • 10:51:21

    FREDERICKSENAnd it's not 24/7 they can tell where the calls were made from at certain times. But, you know, we just had a Supreme Court case that's said you can't put a GPS on a car, which would tell you 24/7 location, and that's not this.

  • 10:51:35

    REHMHere's a tweet from Mary Jane, who says, "Snowden raised his hand and took an oath. He is as much as traitor as Oliver North was and as knowing and as cowardly." Jesselyn.

  • 10:51:56

    RADACKThis dovetails with a lot of the arguments I hear about secrecy agreements. And my clients also who had -- many of them, most of them -- Tom Drake and Bill Binney in the military -- said that they took their oath to uphold and defend the Constitution. They privileged that over any secrecy agreement. And, by the way, I mean, I've read a number of these secrecy agreements. I mean, they're not loyalty oath. They're not omerta, you know, the mafia kind of oath.

  • 10:52:25

    RADACKI mean, they don't say, oh, you can commit illegal, you know, we could do illegal activity and you were prohibited from talking about it. So the fact that people privilege the Constitution and the Fourth Amendment and the actual laws on the books on this topic, like FISA and the Patriot Act 215, to be -- I mean, that -- I think that's a higher calling and the right thing to do.

  • 10:52:50

    REHMSo you would clearly -- if Edward Snowden came to you, you would clearly take his case?

  • 10:52:59

    RADACKI would. Yes.

  • 10:53:00

    REHMAll right. Let's go to Chambersburg, Pa. Sam, you're on the air.

  • 10:53:06

    SAMHello. This is a comment regarding the constant reference to Edward Snowden fleeing to China and why is he in Iceland or more friendly to Internet freedom and privacy related nation. He was living from Hawaii. And there aren't many places where you can get a direct flight to -- from Hawaii. And certainly Iceland is not one of those places. He chose Hong Kong because Hong Kong has a history of freedom relative to the rest of China.

  • 10:53:34

    SAMThe one gentleman -- I believe his first name is Matt -- continually references China as some -- as massive nation that it is, omitting the fact that Hong Kong was not part of the PRC until a little over two decades ago and saying that there's still a strong grip from Beijing. Well, Beijing has been constantly working to achieve a hold in Hong Kong. And Mr. Snowden chose what was available to him.

  • 10:53:58

    REHMAll right.

  • 10:53:58

    COOPERWell, no, I did mention that Hong Kong is, you know, is courageously fighting for its freedoms, but they're always imperil. It is part of China and...

  • 10:54:10

    REHMWhat are the extradition agreements between the U.S. and Hong Kong? Do you know, Scott?

  • 10:54:18

    FREDERICKSENWell, there is an extradition agreement. And just to follow up on Matt and Matt's point, you know, it is somewhat independent, but it's part of China. And if you are -- I guarantee, if you go to Hong Kong, you are much more vulnerable being snatched by the People's Republic of China forces if -- or security people if they would like to talk to him in Beijing. But there is an extradition treaty. Whether or not they will extradite, it's open to some questions depending on the charge.

  • 10:54:50

    REHMAnd you're listening to "The Diane Rehm Show." Jesselyn.

  • 10:54:55

    RADACKYeah. I think the real question in terms of the China issue is, why in a democracy -- especially one with the First Amendment -- why would a whistleblower feel the need to leave the country in order to expose wrongdoing? And I would submit it's because a number of these people who have done so recently are now under Espionage Act prosecutions, which is the most serious charge you can level against an American or one of the most serious that could land them in jail for the rest of their life.

  • 10:55:28

    RADACKMeanwhile, of course, the biggest leaker in the United States is the government. And they leak like a sieve, including sources and methods to Hollywood to make a movie like "Zero Dark Thirty." They leak sources and methods in a book written by someone who had the torture, rendition, interrogation, detention program and is on a book tour right now. His book has all sorts of classified in it. So when it shoots the government, they leak information.

  • 10:55:56

    RADACKBut if someone leaks information that embarrasses a government or, worse yet, exposes illegality by the government, that person is done. They're going to be prosecuted and face spending the rest of their life in jail. So I'm not surprised at all that he would leave the country to make his disclosure. And we can make arguments about, you know, Hong Kong or Iceland, but really, the focus should not be on Snowden, it should be on what he disclosed.

  • 10:56:26

    RADACKAnd, you know, I don't know or how many -- I mean, I represent people who are expert in these algorithms. Bill Binney is the world's foremost cryptologist and mathematician. And he has looked at these slides. And he's like, yeah, this are based on the algorithm that I had written, which have been bastardized by the NSA and turned inward to spy on Americans.

  • 10:56:48

    REHMAnd here is the final email from Dawn, who says, "I'm so tired of giving Congress a pass on this. They get six figure salaries. They need to do their jobs. And that is to read the briefs and represent them to the American people." I think we're going to have to leave it at that. Obviously, way more discussion to come from Jesselyn Radack of the Government Accountability Project, Matt Cooper of National Journal Daily, and Scott Fredericksen, former federal prosecutor and independent counsel. Thank you, all.

  • 10:57:40

    COOPERThank you, Diane.

  • 10:57:40

    RADACKThank you, Diane.

  • 10:57:41

    FREDERICKSENThank you.

  • 10:57:41

    REHMAnd thanks for listening. I'm Diane Rehm.

Topics + Tags

Comments

comments powered by Disqus
Most Recent Shows

Joel Klein: “Lessons of Hope: How to Fix Our Schools”

Wednesday, Nov 19 2014Joel Klein served as the chancellor of the New York City Department of Education for eight years. In a new book called "Lessons of Hope: How to Fix Our Schools," he recounts his experience as head of the nation's largest school district and explains his vision for how to solve the problems plaguing our education system.