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What Should Be Up for Public Debate When It Comes to Secret Surveillance?

June 10, 2013 at 12:00 AM EDT
Did Edward Snowden give Americans vital information about how they're being watched or did he put national security at risk? Gwen Ifill moderates a debate on the public and political oversight of U.S. intelligence with former Democratic congresswoman Jane Harman and James Bamford, author of "The Shadow Factory."

GWEN IFILL: We return now to the story of Edward Snowden, the 29- year-old former CIA employee and intelligence contractor who’s admitted leaking government secrets. Is he a criminal who put Americans at risk, or is he a hero who told Americans what they need to know about how closely their government is watching them?

We have two points of view on that from Jane Harman, a former nine-term member of Congress who was the top Democrat on the House Intelligence Committee. She’s now president of the Woodrow Wilson International Center. And author and journalist James Bamford, who has written extensively about the NSA and other intelligence agencies.

Welcome to you both.

JAMES BAMFORD, Author, “The Shadow Factory: The Ultra-Secret NSA From 9/11 to the Eavesdropping on America”: Thank you.

GWEN IFILL: So, James Bamford, is Edward Snowden a leaker or a whistleblower?

JAMES BAMFORD: Well, he’s definitely a whistleblower. He’s not profiting from this in any way. He’s going to be harmed very severely because of this.

He’s doing this because he thinks it’s right, because he thinks that the public should know that the government was picking up and storing billions of their telephone records. You know, they had a debate about this in England in the last few weeks. But it was public. It was about a bill going through congress to do a similar thing.

Over here, we don’t do that. We just secretly do all these things. The public has a right to know what’s being done with their telephone records.

GWEN IFILL: Jane Harman?

JANE HARMAN, Former U.S. Congresswoman: He’s a leaker. And what he did was inappropriate.

I do think we should have a public debate. We actually had a public debate around the 2008 amendment to FISA, the Foreign Intelligence Surveillance Act. This law has been on the books since 1978. It was passed in response to the abuses in the Nixon administration, and pursuant to the Church Commission, which investigated a lot of intelligence abuses in the mid-’70s. It was passed by overwhelming bipartisan margins, and it set up the Senate Intelligence and House Intelligence Committees, in addition to the FISA court, to review individual actions against U.S. persons.

And it continued that way through 2011, when it was clear the authorities were outdated. And then we amended it after a public debate in the United States Congress. And it works well.

GWEN IFILL: Sen. Udall, we just heard, talked about the scale of this program. Is it possible to share this kind of information, as Edward Snowden did, and not share it at such a scale? Is that the problem, really?

JAMES BAMFORD: Have him share the information about what he picked up?

GWEN IFILL: So much of it.

JAMES BAMFORD: Well, we have yet to see what else he has out there. Right now, he released basically two big programs, the one about the telephones and the one about PRISM, which is intercepting the Internet traffic.

I don’t think that was a big release. I mean, people should know this is going on with their communications. What’s the big secret? The terrorists obviously assume — they have assumed all along that we’re doing this. So, why keep it a secret from the American public?

GWEN IFILL: Both The Washington Post and The Guardian have reported that he’s made available to them PowerPoint slides, of which they only published four of them, because they thought there were things he was giving them that were too secret.

JAMES BAMFORD: Well, I haven’t seen those. I can’t make any judgment about those.

What I’m making a judgment on is what we have seen. And what we have seen is the government access without any knowledge of any public about access to billions of telephone records every day. Every day, somebody picks up the telephone, makes a phone call, a record of that phone call is being kept by NSA. People should know that, the same thing with the Internet.

GWEN IFILL: Jane Harman, let me read to you something that James Bamford has written about the NSA.

He wrote that: “There is no doubt that it has transformed itself into the largest, most covert and potentially most intrusive intelligence agency ever created.”

JANE HARMAN: Well, it’s large. I agree with that, but the programs we’re talking about were developed in Congress pursuant to debate.

They are subject to oversight by Congress. There is a federal court — that’s what the FISA court is. It’s a rotating court that includes 11 federal judges, at least three of whom have to live near Washington so they can personally review any individualized requests to read content or listen to — and, in fact, the phone records are records, but to listen to somebody, it’s prospective. It’s not retroactive.

No one is listening to our phone calls right now, unless there’s an individualized record for an American. But, at any rate, Congress passed these laws. And they are — and my experience, having worked there and having been involved in the 2008 amendments to FISA, having been very distressed that the early Bush administration wasn’t following FISA right after 9/11 — but, at any rate, these laws work well.

And the oversight is robust by the senators and House members who do it, mostly on the Intelligence Committee.

GWEN IFILL: There are laws. There are courts. What’s wrong with that, if it’s legal? Or is that what’s wrong with it?

JAMES BAMFORD: Well, Congress. Please.

Where were they when the Bush administration was doing their warrantless eavesdropping?

JANE HARMAN: I will answer that.

JAMES BAMFORD: Well, let me finish.

You know, the Congress Intelligence — the Senate Intelligence Committee, when it started out under Frank Church, it started out as an organization to protect the public from the intelligence agencies. Now it’s simply become a cheering gallery for the intelligence agencies. They want to give it more money. They want to give it more power. And you can see what happens during the Bush administration.

JANE HARMAN: I have — I served there for eight years. And I don’t think I was a cheering gallery for the Bush practices.

First of all, I objected, once I understood it, that the Bush Terrorist Surveillance Program, TSP, was being conducted outside of FISA. That wasn’t information I had. I was in the so-called “Gang of Eight,” let into this very, very secret program. I was told every time it strictly complied with law.

What I wasn’t told is these were Bush laws made in the Justice Department. And when that was clear, I and many others in Congress spent a lot of time making sure that this program, which was known to the public — I mean, first of all, it was leaked to The New York Times — everybody was aware about the phone records collection program and what it was for — was strictly covered by FISA, and that was the product of a public debate.

GWEN IFILL: Let me ask you both a question.

There have been at least two polls out today showing most Americans think it’s fine, that they don’t really have a problem with this. So, let me ask you this question, James Bamford. What has the gathering of this information, this effort that the NSA has spent to gather personal information, what has that hurt?

JAMES BAMFORD: What it hurts is a democracy.

A democracy, you’re not supposed to do things like that. You’re supposed to have open societies, where governments, if they want to do that, do what the British did. Bring a bill through Congress, say we want to do this. We want to have all your records every single day sent to the NSA. See how much of a vote you will get on that. They tried that in Britain, and they voted it down.

GWEN IFILL: And what has it risked? What really — what has it thwarted?

JANE HARMAN: Again, this is metadata.

It’s telephone numbers, not attached to people. And the only access you can get to this metadata, if a U.S. citizen or a U.S. legal resident is involved, is on an individual basis once you go through a federal court to get an individualized warrant, which is what the Fourth Amendment requires.

GWEN IFILL: When you were in Congress — can I ask you, how often were you briefed on programs like this, especially PRISM and programs like that?

JANE HARMAN: Well, PRISM started after I left the Intelligence Committee.

GWEN IFILL: They’re not secret anymore.

JANE HARMAN: But I was briefed regularly on programs.

Sure, did I want more information? Yes, I wanted the memos that the Office of Legal Counsel, the OLC, and the Justice Department was providing. We couldn’t get those. And, yes, I wanted more robust briefings, and I think Congress should always push for that. And I’m not saying this is perfect. And I think we agree that there ought to be a robust public debate.

And, oh, by the way, I think we need a comprehensive — a new comprehensive set of legal boundaries around our post-9/11 policy. We’re in the second decade.

GWEN IFILL: Well, that’s the line I want to — where I want to end this. There has got to be a line somewhere between privacy and security. You agree on that. Where is the line?

JAMES BAMFORD: Well, the line — you know, the line, I would put it, is if you’re going to invade American privacy, you bring a bill through Congress and you do it publicly that way. You don’t do it secretly, like they used to do in East Germany during the Cold War.

Look, we’re talking about having a debate now. How would we have had this debate, how would we be sitting here talking about this if it wasn’t for Edward Snowden?

GWEN IFILL: Good question.

JANE HARMAN: I — well, I think — I applaud what Mark Udall has done and Ron Wyden. They made clear they disagreed with some aspects of this. They pursued their disagreement inside the system.

And I think, ultimately, they would have caused the debate that we should be having.


JANE HARMAN: Well, I’m sorry.

I think Americans want our country protected. I don’t think it’s a choice between security and liberty. I don’t think it’s a zero sum gain. It’s a positive sum gain. You get more of both or less of both. We created a privacy and civil liberties commission when we reorganized the intelligence community in 2004.

You’re rolling your eyes, but President Obama …

JAMES BAMFORD: Because they just appointed the first person to it.

JANE HARMAN: Well, the Senate finally confirmed the person. But that commission can be very helpful here.

GWEN IFILL: We’re not going to resolve this tonight, unfortunately.

Jane Harman, James Bamford, thank you both very much. We will talk about it some more.

JAMES BAMFORD: Thank you. My pleasure.