Debate: Was Snowden Justified? Former NSA Counsel Stewart Baker Vs. Whistleblower Daniel Ellsberg

JUAN GONZÁLEZ: Today, we host a debate on former National Security Agency contractor Edward Snowden and his disclosure of the massive spying apparatus the NSA operates in the United States and across the globe. Snowden’s leaks to The Guardian and other media outlets have generated a series of exposés on NSA surveillance activities, from its collection of Americans’ phone records, text messages and email, to its monitoring of the internal communications of individual heads of state. The latest revelations based on the leaks were reported by journalists Jeremy Scahill and Glenn Greenwald with First Look Media. They show how the NSA has secretly assisted in U.S. military and CIA assassinations overseas by using metadata analysis and cellphone-tracking technologies—the unreliable tactic that has resulted in the deaths of innocent or unidentified people.

AMY GOODMAN: Well, the NSA has defended its activities as essential in the fight against terrorism. In January, Director of National Intelligence James Clapper attacked Snowden while speaking before the Senate Intelligence Committee, and called for him to return all stolen documents to the NSA after causing what he called major harm to U.S. security. Clapper also suggested the journalists who have published Snowden’s leaks are his accomplices.

JAMES CLAPPER: Snowden claims that he’s won and that his mission is accomplished. If that is so, I call on him and his accomplices to facilitate the return of the remaining stolen documents that have not yet been exposed, to prevent even more damage to U.S. security. But what I do want to speak to, as the nation’s senior intelligence officer, is the profound damage that his disclosures have caused and continue to cause. As a consequence, the nation is less safe, and its people less secure. What Snowden has stolen and exposed has gone way, way beyond his professed concerns with so-called domestic surveillance programs.

JUAN GONZÁLEZ: Meanwhile, Snowden has repeatedly maintained he’s no longer in possession of any of the documents he took from the NSA—

AMY GOODMAN: —having passed them on to journalists to report at their discretion. The editors of The New York Times recently urged clemency for Snowden, writing, quote, “Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service,” the Times wrote.

Partly as a consequence of the government’s response to Snowden’s leaks, the United States plunged 13 spots in an annual survey of press freedom by the independent organization, Reporters Without Borders. Snowden now lives in Russia and faces espionage charges if he returns to the United States. In his first television interview with German channel ARD late last month, Snowden talked about how perceptions of the leaks among U.S. government officials have changed.

EDWARD SNOWDEN: What we saw initially in response to the revelations was sort of a circling of the wagons of government around the National Security Agency. Instead of circling around the public and protecting their rights, the political class circled around the security state and protected their rights. What’s interesting is, though that was the initial response, since then, we’ve seen a softening. We’ve seen the president acknowledge that when he first said, “We’ve drawn the right balance. There are no abuses,” we’ve seen him and his officials admit that there have been abuses. There have been thousands of violations of the National Security Agency and other agencies’ authorities every single year.

AMY GOODMAN: Edward Snowden, speaking to German television last month.

Well, to discuss the significance and implications of Snowden’s leaks, we’re hosting a debate. In Washington, D.C., we’re joined by Stewart Baker, former general counsel of the National Security Agency and assistant secretary for policy at the Department of Homeland Security, a partner at the law firm Steptoe & Johnson. Baker is the author of Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism.

And here in New York, Daniel Ellsberg, former Pentagon and RAND Corporation analyst, perhaps the country’s most famous whistleblower. Ellsberg leaked the Pentagon Papers in 1971, exposing the secret history of the U.S. involvement in Vietnam, prompting Henry Kissinger to call him “the most dangerous man in America.” The papers were published in several newspapers, including The New York Times and The Washington Post, and later published as a book. They were only officially declassified and released in 2011.

We welcome you both to Democracy Now! Stewart Baker, I’m sorry you’re snowed in at home, but why don’t we begin with you. Can you talk about what Edward Snowden did and if you think he is a traitor?

STEWART BAKER: What Edward Snowden did was quite deliberately change jobs to gather as much, perhaps millions of documents, from as many places as he could around the National Security Agency, but involving other agencies, as well. He stored them on a computer and handed them out to—who exactly, we don’t know, but certainly to journalists, and with controls that probably make it likely that sophisticated intelligence agencies have been able to get access to them, and allowed them to be disclosed at the journalists’ discretion, more or less with some guidance from Snowden.

The result of that has been a massive disclosure of classified intelligence gathering that has hurt our ability to catch terrorists, to keep an eye on Iranian and North Korean and Chinese and Russian operations, and has done great diplomatic damage, as well. I think that, frankly, the way that those disclosures have occurred, it’s hard to view that as anything other than the intended result of his gathering that information and disclosing as he—disclosing it as he did. He certainly disclosed some information that sparked a debate in the United States. He did that in June, but he has continued to disclose documents for months thereafter, which have no obvious policy value in terms of a debate or a concern that the United States public should have, but which have done enormous damage. And so, at a minimum, I think he is someone who has violated U.S. law, done great damage, and should go to jail for it.

AMY GOODMAN: Traitor?

STEWART BAKER: It remains to be seen. There have been people who have made the case, and in some cases fairly persuasively, that his leaks, and especially the most recent leaks, serve the interests of the country where he is located, and that either wittingly or because he was sort of tricked into it, he may have been serving Russia’s interest. That would make him a traitor, but I think that’s an unproven case.

JUAN GONZÁLEZ: But what about his argument that given the extensive nature of the surveillance that was being conducted without the knowledge of the American people, that he had a moral responsibility to speak out and to at least spark this debate?

STEWART BAKER: Well, you can’t—obviously, you cannot do intelligence gathering in the sunlight. You can’t tell the American people everything you’re doing in their name, because the process of telling them also tells your targets, and it tells Hezbollah, it tells al-Qaeda, it tells the North Koreans and the Iranians and the Russians and the Chinese exactly what you’re doing. And you can’t do that and continue to gather the intelligence. So there has to be a limit on what the public debates here.

There also has to be a limit on what the several million people who have clearances feel they’re free to disclose because they’ve decided that there’s a problem with the program. At the end of the day, all that Snowden says he did is he kind of made some oblique remarks to his superiors, saying, “Gee, do you think this would really look good in The Washington Post if it were known?” And then he decided to release a million or two million or three million documents. There are whistleblower protections in U.S. law more than in any other countries’ law, but they provide a procedure: You need to go to the authorities, you need to go to Congress, you need to go to an inspector general, and raise your concerns there. He did none of that. And his view that this was illegal has turned out to be highly questionable.

All that said, yes, he has spurred a debate on that one program, and he could have spurred that debate on that one program with one document, the document that he released first. Everything he has done since then has simply caused damage. And the number of debates that have been spurred, and certainly the number of serious proposals for changing the current intelligence law, is close to zero.

AMY GOODMAN: That’s Stewart Baker, former general counsel of the National Security Agency. Dan Ellsberg, your assessment of Edward Snowden’s actions, and do you think he is a traitor or a patriot?

DANIEL ELLSBERG: I feel confident, as you in the clip showed earlier, that he’s no more a traitor than I am, and I’m not. The notion that he joined NSA with the intention to, earlier on, or the CIA, when he took the oath of service to the country earlier, that he did that with the intent to either harm the interests of the United States or to release any information or to harm NSA or to deprive it of secrecy, I think there’s no evidence for that whatever, and I believe it’s entirely false. He came to believe, as I did, having made those oaths initially and the promises of nondisclosure, which were not oaths, but they are contractual agreements not to do that, which he later violated, as I did—he made those in good faith, by everything known to me, and came to realize, I think, eventually, as he said, that a nondisclosure agreement in this case and the secrecy conflicted with his oath, so help me God, to defend and support the Constitution of the United States, and it was a supervening—a superseding authority there that it was his responsibility really to inform the public, because, as he said, he could see that no one else would do it.

He saw the head of the NSA, but also the director of the national intelligence, you quoted here, Clapper, lie to Congress. And actually, I think what he’s mostly revealed, in particular, is not that Mr. Clapper was violating his oath in the sense of trying to deceive Congress; Clapper knew that the false statements he was making, that they were not collecting data on millions—any data on millions of Americans, were false, but he knew that Congress knew they were false, the people he was talking to, the dozen, even the man who had asked the question, Senator Wyden. What we saw, what Snowden saw and what we all saw, was that we couldn’t rely on the so-called Oversight Committee of Congress to reveal, even when they knew that they were being lied to, and that’s because they were bound by secrecy, NSA secrecy and their own rule. The secrecy system here, in other words, has totally corrupted the checks and balances on which our democracy depends.

And I think the—I am grateful to Snowden for having given us a constitutional crisis, a crisis instead of a silent coup, as after 9/11 an executive coup, or a creeping usurpation of authority. He has confronted us. He has revealed documents now that prove that the oversight process, both in the judiciary, in the FISC, the secret court, and the secret committees in Congress who keep their secrets from them, even when two of them, Wyden and Udall, felt that these were outrageous, were shocking, were probably unconstitutional, and yet did not feel that they could inform even their fellow colleagues or their staff of this. What Snowden has revealed, in other words, is a broken system of our Constitution, and he’s given us the opportunity to get it back, to retrieve our civil liberties, but more than that, to retrieve the separation of powers here on which our democracy depends.

JUAN GONZÁLEZ: But, Daniel Ellsberg, what about Mr. Stewart’s—Mr. Baker’s remarks that he could have just released one document or two documents, that would have been sufficient to spur the kind of debate that we have now?

DANIEL ELLSBERG: He talked about revealing on one program. But I like the way you put it, because what I was confronted with, with the Pentagon Papers 40 years ago, when I put out 4,000 pages to the newspapers and 3,000 other pages, top secret, to the Senate Foreign Intelligence—Foreign Relations Committee—there was no Intelligence Committee at that time—which I didn’t give to the newspapers at that time, when I saw the effects of that, it gave me a moral that I’ve been saying for 40 years. And I’ve been asking people: First, don’t do what I did. Don’t wait ’til the bombs are falling, if you know that we’re being lied into a war. Don’t wait ’til thousands more have died, before you tell your truth to Congress and to the public.

But I would also say, by now, don’t tell it only to Congress. I gave it to Congress a year and a half before it came out. Senator Fulbright failed to bring the hearings that he promised me, on the grounds that he himself would be deprived of secret information from the Defense Department thereafter. So he waited for me to do it. If I didn’t do it, it wasn’t going to happen.

But the other thing I’ve been saying for years is, I want someone to put out enough documentation to make the case irrefutable. If you bring out one memo, 10 memos, you will hear, as we have heard when the first memos came out, “Oh, that was rescinded the next day. Oh, that just reflected one agency, one opinion.” No, the Pentagon Papers showed—but, unfortunately, they were only history. I didn’t have current documents. If I had, I would have put those out instead of the history. But what they did show was that this was a pattern of decision making that went over four different presidents and was being repeated today. That took hundreds and thousands—thousands—of pages to reveal, and many of those pages didn’t reveal anything of great significance. I wanted it to be very clear I hadn’t censored them, I hadn’t taken out the one good reason for that war. Said, “Here’s the whole history. See if you could find a good reason for it.”

What Snowden did, which I admire very much, is to put out enough material to show an entire pattern of behavior, and not just on one program, on a number of programs, with the implication there are many more and that Congress needs to look into this, but not in the way the intelligence committees have done. They’ve been thoroughly co-opted and corrupted by this process. There has to be a new congressional investigation, with new people on it, and that has to be pressed by the public. It will not happen by Congress alone.

AMY GOODMAN: We’re talking to Dan Ellsberg and Stewart Baker. Dan Ellsberg, perhaps most famous whistleblower in the United States, released the Pentagon Papers in 1971. Stewart Baker is former general counsel for the National Security Agency. We’ll continue this debate in a moment.

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AMY GOODMAN: “The Paper Soldier” by the famous Russian poet, novelist, singer-songwriter, Bulat Okudzhava. This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González. We’re hosting a debate on Edward Snowden, spying and the national security state.

In Washington, D.C., snowed in at home, we’re joined by Stewart Baker, former general counsel of the National Security Agency and assistant secretary for policy at the Department of Homeland Security. His tenure spanned from Clinton to Bush. He’s a partner at the law firm Steptoe & Johnson. Baker is the author of Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism.

Here in New York, Dan Ellsberg, former Pentagon and RAND Corporation analyst, who became the country’s most famous whistleblower by leaking the Pentagon Papers in 1971. This was thousands and thousands of pages that exposed the secret history of the U.S. involvement in Vietnam, helping to end the Vietnam War.

Stewart Baker, do you think that Dan Ellsberg was a traitor?

STEWART BAKER: No, but I think he is shockingly misrepresenting the facts and stating a proposition that has no place in a democracy. Mr. Ellsberg said—I had pointed out that Snowden changed jobs specifically to steal more documents. Dan Ellsberg says that’s false. I don’t know where he gets this. Snowden himself says he changed jobs from a contractor for Dell to a contractor at Booz Allen so that he could get more documents. And for Ellsberg to come on this program and simply look into the camera and say that’s false, calling me a liar, when the record is clear, suggests that he is either not paying attention or he doesn’t really care what the facts are.

AMY GOODMAN: Well, let him respond to that point, and then you can make your next one.

DANIEL ELLSBERG: OK, listen, I’ve—let me give the benefit of the doubt to Mr. Baker that he really isn’t listening to what I’m saying, when it comes to misrepresenting facts here. Of course, it’s the case that Snowden has said openly that he went to Booz Allen in order to get documents, that he—

STEWART BAKER: Well, then why did you call that false? I heard you say that’s a false—

DANIEL ELLSBERG: Pardon me. Oh—

STEWART BAKER: You accused me of lying to this program, when—

DANIEL ELLSBERG: Listen, stop talking so much, and listen for a minute.

STEWART BAKER: —when you now admit that the facts are as I said.

DANIEL ELLSBERG: As I said, when he first worked as a consultant for years to NSA, and when he went—and when he joined the CIA earlier, it was with no intention of disclosing documents, and that the turning point came for him much later, after deciding that he had to sacrifice or risk—

STEWART BAKER: But wait, just a second. Just a second.

DANIEL ELLSBERG: Listen, will you—

STEWART BAKER: I heard you say that, and I accept that that’s a storyline that is not implausible. It may be true, or it may be something that he’s made up to—

DANIEL ELLSBERG: I’m agreeing with you that he joined Booz Allen—

STEWART BAKER: But I want to go back to—you started that discussion by saying what Mr. Baker says is false.

DANIEL ELLSBERG: Look—

STEWART BAKER: And then you told this different story. But why are you accusing me of lying, when in fact what I said was true, not false.

DANIEL ELLSBERG: Actually, I haven’t yet accused you of lying, Mr. Baker.

STEWART BAKER: You—what? Well, you said my statement was false.

DANIEL ELLSBERG: No, I said that he did not join CIA or NSA or be a consultant for NSA with the intention of putting out documents. He later—

STEWART BAKER: I heard you say “false.” You said it was false.

DANIEL ELLSBERG: Will you—will you lay off for a minute here and let me finish my sentence?

STEWART BAKER: I’m sorry, you’re making up facts now. You know—

DANIEL ELLSBERG: Yeah.

STEWART BAKER: I ask, can you play back what he said? I heard him say that the statement was false.

DANIEL ELLSBERG: Let me say right away the statement is correct, as I’ve known and have never meant to deny, that he joined NS—that he joined Booz Allen in order to get documents he couldn’t have gotten otherwise, with the intent of putting them out. It was something, by the way, that I didn’t do. In a way, I regret it, but I didn’t go back to Washington to get more documents with the intention of putting them out. I went with the documents that I had authorized to have at the moment. Anyway, I agree with your point. I have not accused you of lying. But now let’s move to the question of just how much you know about the damage that you’ve asserted several times that he caused. I don’t—

STEWART BAKER: Before we do that, I’d like to address your other point.

DANIEL ELLSBERG: Are you going to allow me to finish a sentence or not?

STEWART BAKER: You’ve had plenty of time to explain that you didn’t mean to say that the statement was false, even though you said it, that you meant something else. But your broader theory, if I understand it right, is this doc—all these documents should have been released because they allow for a broader story, and that you can’t give it to Congress because they feel that there are certain programs they have to protect—

DANIEL ELLSBERG: OK, let’s address that point. Let me address that point.

STEWART BAKER: —in order to maintain the confidentiality of our intelligence methods.

DANIEL ELLSBERG: Yeah, let me—will you—

STEWART BAKER: You can’t give it to—

DANIEL ELLSBERG: Oh, well.

STEWART BAKER: You can’t go higher in the chain, because they might decide to protect national security rather than blow the whistle. And so, every single person who works in the government or who has the ability to break into the government’s system gets to make the decision for themselves how many confidential, classified and various important programs should be disclosed to the people that we are targeting.

DANIEL ELLSBERG: Let me go right to the point you’re raising.

STEWART BAKER: That’s a—

AMY GOODMAN: Let’s let—let’s let Dan Ellsberg—

STEWART BAKER: That is basically saying, “I don’t have any faith in our democracy”—

AMY GOODMAN: Let’s let Dan Ellsberg respond to that, Stewart Baker.

STEWART BAKER: —which, I suppose, is consistent with your statement—would you let me finish?

AMY GOODMAN: No, let’s let Dan Ellsberg respond.

STEWART BAKER: That’s consistent with your statement—no, [inaudible].

DANIEL ELLSBERG: Let you finish? Let you finish your filibuster? I’m sorry.

AMY GOODMAN: We have a good amount of time here to have an extended discussion, so you will have time.

DANIEL ELLSBERG: Yeah, yeah. OK, let me address the very important point of what else he could have done or should have done to reveal this. He learned, as I understand it, as he said—and I’ve been in touch with him—he learned from the example not only from me, and from Chelsea Manning, by the way, but from the experience of four or five NSA senior officials—Kirk Wiebe, Ed Loomis, Tom Drake and Bill Binney—who, between them, have 30 years’ average—30 years, some of them have 28, and some have 32—experience with NSA at the highest levels.

Each of them, separately and together, did exactly what you and, I think, the president has suggested they should have done: They went to their superiors in great detail when they thought the program, after 9/11—after you were out of NSA, by the way, after—so, I’m giving you credit there—after 9/11, was unconstitutional and was dangerous, was unnecessary, and should be—should be modified or changed or dropped. They got no response from that, and their recommendations were simply ignored. They went to the IG, the inspector general. I believe some of them went to the inspector general, as well, of the Defense Department. They went to staff of the congressional offices, on a classified basis, to Diane Roark specifically, to complain about these, and offered to testify, by the way.

The result of their doing that was not only no change to programs that they knew were more protective of civil liberties and more effective at catching terrorists and could well have prevented 9/11, rather than the programs that were in effect. The effect of their doing that was to be suspected, wrongly, of having leaked all this information to The New York Times for the revelations for which it got the Pulitzer Prize. They hadn’t. I would say they should have considered that. Anyway, what—they had not done that. Instead, they followed all these channels. The result of that was early morning raids by the FBI on each of them, in this suspicion that they might have been the leakers of this important information. And, in fact, one of them, Bill Binney, a diabetic with an amputated leg, first learned of the suspicion here when there was a knock on his shower door, where he was seated taking a shower, and opened the door to find an FBI agent pointing a gun at his head, and followed by eight hours of interrogation, and the removal, in all four cases, of all their computers, all their thumb drives, some of which they’ve never gotten back—no charges ever pressed against them. Tom Drake, one of the four here, as a result, was subject to a spurious, punitive prosecution with no valid basis, which led essentially to an apology from the judge in the end after he had been bankrupted.

Looking at that experience very specifically, Snowden knew that it would be foolish and hopeless for him to try to call attention to this within the channels. He did, I think, exactly right, and others should follow the same, not just when they disagree with policy or object to it, as the president has suggested, but when they feel that it’s unconstitutional, criminal—as, by the way, the years of NSA warrantless spying from 2001 to 2006 with no legal basis were criminal and unconstitutional—and leaked essentially by no one with documents. What Snowden has done is to provide the documents that prove, at last, what was done in the past was clearly illegal, and that that put in question the whole oversight procedure and the good faith of NSA in binding itself to the Constitution. So, I think that he did what he should have done, as all four of those NSA people, who did not do it, have said now, “He did it right. Our approach was hopeless.”

STEWART BAKER: So, I have served in government off and on a long time and at pretty senior levels, and the number of times that I have not persuaded the rest of the government to do things that I think it should do, even things I think it’s morally or legally compelled to do, are pretty substantial. This is the way government works. This is the way democracies work. Individual government employees do not get to say, “I think this is wrong, and therefore it must stop.” You can raise it, and there are plenty of circumstances and plenty of stories of people who have raised issues that have been investigated and have led to changes.

I don’t know the specifics of the cases that you’re talking about. Maybe they were mistreated as a result of the suspicions aroused by what they did internally. But the fact that not every one of their complaints was validated is not surprising. No one in government gets what they want, not even the president. And to say, “Well, I didn’t get what I want, so I’m going to wreck this operation by disclosing it,” is a remarkable and fundamentally anti-democratic view. It’s—the president has called it “narcissistic,” and I think that’s not wrong.

There comes a point at which you say, “I have done what I can to raise this, and I have been assured that in fact this is not illegal.” And the things that he was complaining about had been through court, had been through Congress. We can argue about whether they are legal or not now, or whether they should be legal. I think it’s fair to say that they were blessed by the courts at the time. The things that he disclosed, that were news as opposed to the things that were history—

DANIEL ELLSBERG: OK, Mr. Baker—

STEWART BAKER: —were not unlawful at the time. It’s pretty clear the Congress and the courts had approved those things. They may become changed, they may, as a result of this debate, but that’s very different from saying, “I am doing something illegal, and my conscience requires me to disclose it.”

DANIEL ELLSBERG: OK, let me—you’ve raised—

JUAN GONZÁLEZ: Let me just ask Mr. Baker—

DANIEL ELLSBERG: You’ve raised important questions, sir. Let me address both of them. First of all, when it comes to being named—called names—narcissistic, megalomaniac and traitor, which is a much more serious name—I’ve had that experience, from the president and the vice president. They were mistaken. But those names are what every whistleblower gets, essentially, whatever the conditions. And if you’re not willing to be called names, I think you can’t carry out your responsibilities to the Constitution.

Now, getting to that, if you’re telling me that there have been times when you dutifully, with your agreement on secrecy, accepted, without exposing to anyone else, policies that, as I heard you, were immoral—and I think you may have said illegal, but let’s just say illegal—I respectfully say you were mistaken, you were, in your judgment. You were acting as nearly all bureaucrats and officials do in that face: They protect their jobs, their careers, their clearances, and indeed their promise, and they don’t think—to keep secrets, and they don’t think twice about what their responsibility might be beyond their responsibility to their agency or to the president.

If you say you’re not familiar with those four NSA names I had, my first thought would be you haven’t followed this very closely. The second thought would be that they haven’t testified before Congress, because despite their extreme expertise in this field, no Congress committee has wanted to hear from them under oath, which they’re urging—which I urge the public to urge committees to bring these people and tell them under oath. If they are mistaken, let them be—let that be exposed. But the fact is that they found that this was unconstitutional. And I think they now feel they didn’t do all that they should have. And if you were in a similar position, then I have to say to you that, like most people in that position, you didn’t do everything you could, just as I didn’t, just as I didn’t when I first had the documents in my hands.

STEWART BAKER: That’s right. I didn’t do everything I could, because some of the things I could do would be profoundly damaging to the United States. And I said I have done what I can—

DANIEL ELLSBERG: OK.

STEWART BAKER: —inside the system to raise this issue, and it is going to be resolved. It’s been resolved by people who have made calls that are different from mine, who are closer to the facts, who have more facts. Sometimes you have to make that decision because the alternative is to say no secret is safe as long as one person in government does not [inaudible]—

JUAN GONZÁLEZ: Let me—let me step in.

DANIEL ELLSBERG: I would never single you out—

JUAN GONZÁLEZ: Dan, one second.

DANIEL ELLSBERG: Go ahead. Go ahead.

JUAN GONZÁLEZ: Let me step in. Mr. Baker—

STEWART BAKER: —they are going to disclose it because it makes them feel better. That’s what happened here.

JUAN GONZÁLEZ: Mr. Baker—

STEWART BAKER: And, in fact, what he disclosed is far more than just one secret. He disclosed massive amounts of stuff that have sparked no debates at all here, but nonetheless continue to do great damage to the United States. How can that possibly have been the right outcome?

JUAN GONZÁLEZ: Mr. Baker, one question for you. As a former NSA general counsel, I mean, you say that you did raise some concerns during your tenure.

DANIEL ELLSBERG: Yeah, what were they?

JUAN GONZÁLEZ: What you have seen since—

STEWART BAKER: Well, or, look, I’m not—I’m not—

JUAN GONZÁLEZ: Wait, wait, let me finish my question, please.

DANIEL ELLSBERG: Fat chance.

STEWART BAKER: I’m not suggesting I—I realize that—

JUAN GONZÁLEZ: Yeah, let me ask you this: What you have seen revealed since then—

STEWART BAKER: Hang on, hang on. I keep hearing—you’re misinterpreting my—excuse me, you’re misinterpreting what I said. I was not saying that back when I was NSA general counsel, I saw things that I thought were illegal and raised them and—inside, but did not go outside. There are many calls—and I’ve been in government many times—many calls that are made by people above you in government where you wonder if they’re doing the right thing, and you have to recognize that you don’t always have all the facts that they have. And I’ve done it since I’ve been out of government, where I’ve learned of things that I thought were wrong.

JUAN GONZÁLEZ: OK, but, Mr. Baker—Mr. Baker, my question—

STEWART BAKER: But I did not—

JUAN GONZÁLEZ: Let me ask my question to you.

STEWART BAKER: Once I had raised them, I could not stop—I could not just—

JUAN GONZÁLEZ: Mr. Baker, let me ask my question to you.

STEWART BAKER: Yeah.

JUAN GONZÁLEZ: From what you have seen since the Snowden disclosures, and what you know of of the operations of the NSA when you were there, is there anything that has been disclosed that raises questions to you about whether your government was—our government was properly conducting surveillance, its surveillance responsibilities?

STEWART BAKER: At bottom, no. I think that the agency has an incredible commitment to following the law, a commitment they’ve had since the ’70s, the last set of reforms that were adopted. And they may have done things that, in retrospect, some courts would say were not proper, but they have almost always done those things with careful legal analysis and with the approval, where appropriate, of the courts. And so, you know, people can disagree about whether the courts got it right or wrong, but I think NSA has acted in a fundamentally law-abiding way. And the institution that I knew, and that I still see, is committed to that, because they recognize that the powers they have are extraordinary and need to be used in democratically legitimate ways. They have worked very hard to do that. And Snowden just has blown those things without any regard for their efforts to stay within the law and their commitment to the law.

AMY GOODMAN: We’re going to break and come back to this discussion. Our guests are Stewart Baker, former NSA general counsel, and Dan Ellsberg, former Pentagon and RAND Corporation analyst who leaked the Pentagon Papers in 1971, exposing the secret history of the U.S. involvement in Vietnam. He leaked those papers to, first, The New York Times. This is Democracy Now! We’ll be back in a minute.

[break]

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report . I’m Amy Goodman, with Juan González. Before we continue our debate on what Edward Snowden did and what should happen to him, I just have some breaking news on a person we’ve been covering over the last week. Karim Khan, a Pakistani drone activist and journalist, who had been missing since being abducted from his home February 5th, has been released. Khan had been set to travel to Europe to speak against the U.S. drone wars. His brother and son were killed by a drone in 2009. The legal charity Reprieve says he was released earlier today, two days after the Lahore High Court ordered Pakistani forces to produce him from custody by next week. You can go to our website at democracynow.org to see our coverage of Mr. Khan from this week’s broadcast.

But now we continue our debate between Stewart Baker, former NSA general counsel—he was appointed to the NSA by President George H.W. Bush, and then served, appointed by President George W. Bush, to the Department of Homeland Security. We’re also joined by Daniel Ellsberg, former Pentagon and RAND Corporation analyst who leaked the Pentagon Papers in 1971, exposing the secret history of the U.S. involvement in Vietnam.

Dan Ellsberg, Stewart Baker says he was not, in response to Juan’s question, surprised by what was exposed by Edward Snowden, and I also want to make just one point on the issue of Snowden continuing to release information. According to Edward Snowden, he gave the documents—we believe it’s about 1.7 million documents—to the journalists, Glenn Greenwald and Laura Poitras. He says when he went to Russia, he didn’t have the documents, and he is not the one who is continuing to release them. But the journalists who have access to them are, one by one, writing stories in various papers, delving into what is in these documents. Dan Ellsberg?

DANIEL ELLSBERG: OK, a couple of things here, Amy. First of all, the 1.7 million figure, which obviously is far more than he could possibly have looked at, let alone read, is a government statement. They don’t know what he released to the journalists. Neither Mr. Baker nor I actually know. But I am informed—well, first, Snowden has said that it’s wrong by at least an order of magnitude tenfold, which is another—

AMY GOODMAN: Which way?

DANIEL ELLSBERG: Which way, yes, very good. That he released less than 10 percent of what they’re talking about, and that everything he did release to the journalists was something that he had looked at and formed a judgment that they ought to have it. But he didn’t want them to rely on his judgment alone. He could have put them all on the web by himself, very much, or sequentially. On the contrary, he said over and over, “I am not releasing a single document,” which he has not. He said every document should have the judgment of a staff of trained journalists, to use their judgment on that.

Second, in every case of every story that has appeared so far—and apparently Mr. Baker believes that there has been great damage from those already, for which the journalists would be also responsible—every story has been checked with NSA by both The Guardian and by The Washington Post. In every case, they have made objections. Not all of the objections have been followed by the newspapers. But in almost every case that they’ve printed, they have followed objections as to sources and methods that would actually damage the United States or our interests. As Snowden has said, he had access—he had knowledge of the clandestine whereabouts of NSA listening posts all over the world, had neither copied those nor given them to journalists, which he could have, because that would harm our intelligence apparatus, which he believes in and which I believe in. Of course there must be intelligence, and of course there must be secrecy about it. So he has made that judgment. I understand that Glenn Greenwald, for example, has demanded an agreement from every newspaper source to which he’s given documents that they check their stories with NSA for sensitive material. Now, when Mr. Clapper—oh, I’m sorry, when Mr.—

AMY GOODMAN: Baker, Stewart Baker.

DANIEL ELLSBERG: Baker, thank you. When Mr. Baker says that there—over and over, that there has been great damage here, I ask him: How does he know that? Based on what? Now, possibly he still is reading classified material as a consultant or someone, and maybe not. If not, he has—I wonder what his basis is. My guess is, he’s accepting at face value the statements of Mr. Clapper or of others. Why would you do that? There’s no basis for that.

I have two questions. I have two questions for Mr. Baker, actually, which are both susceptible of yes-or-no questions. They’re very short, and I hope he will not filibuster. One—let me say one thing about background to give him credit, if I may. He was general counsel at NSA in the ’90s, before 9/11, when, according to Kirk Wiebe and others, the NSA was observing what they called the First Commandment—thou shall not spy on Americans, thou shall not listen to Americans or collect their material without an individualized court order with probable cause—and that they observed that. Wiebe has said that for some 20 years of their 70 years in existence, they were within the law and the Constitution—not earlier, under Johnson or Nixon, and not later. So the two questions are—but he may have—Mr. Baker may have an idealized picture of how this system works from having experienced it before 9/11.

Here’s the two questions. One, if he had been general counsel to Mr. Clapper, when he faced Congress and told them—was asked—was asked, “Are we collecting any data at all on millions of Americans?” would he have encouraged Mr. Clapper to give, as a counsel, the answer that he did give, “No,” which Clapper later explained, after Snowden’s disclosure, was, quote, “the least untruthful” answer he could have given, or would he have advised him otherwise, perhaps to go into closed session or something?

And the second is, if he had been general counsel of the NSA in 2001 to 2006, during which there was no legal basis for criminal, unconstitutional, warrantless [inaudible], what would his judgment have been? And if it had been not to do that, and had been overridden, would he have simply accepted that, like his colleagues, or might he have considered telling someone other than the intelligence committees?

AMY GOODMAN: Stewart Baker, those are two questions for you. Why don’t you begin with the first?

STEWART BAKER: So, I don’t want to be accused of filibustering, but some of these answers do require a little bit more context. I think everyone would agree that Clapper’s answer to that question was not the right thing to say. That said, it was a question designed quite specifically to result in the compromise of the 215 program. That is to say, there was nobody asking the question, nobody answering the question, who didn’t already know the answer to that question. What they could not do is tell al-Qaeda or the American people about it without telling al-Qaeda. What he should have said is something that dodged the question. But it was cleverly designed by Senator Wyden so that, having asked the question, “Are you collecting information on millions of Americans?” to say, “I can only answer that in classified session,” answers the question, as well. So, it was—

DANIEL ELLSBERG: So what would he have advised—what would you have advised?

STEWART BAKER: —designed to put him in a position where he could neither answer or refuse to answer without exposing the program. So he came up with a compromise that was trying to, I think, interpret the notion of collection as, “Are you spying on Americans?” which he felt he could comfortably say we are not, except where we have court orders or where we’ve inadvertently collected the information. That was—I think when you read the transcript, it’s hard to see that as a responsive answer, and he didn’t even gracefully do that. But I think it’s fair to point out that this was not some campaign of lying. This was a campaign of exposure by Senator Wyden and a maladroit effort to avoid that question. So that’s point one.

Point two, the question of the 2006 warrantless wiretapping, I certainly agree with Mr. Ellsberg that it’s very hard to square that with the statute, with FISA. The direction was given and the legal conclusion was reached that the president had the authority to order that, notwithstanding FISA, and there have been—there’s a long-standing view that the president does have authority to do this without the involvement of the courts. In fact, it was the majority view at least until 1978. But I think the passage of the FISA Act made that much harder to do.

That said, the FISA court at that point had utterly disgraced itself. It had forced a bunch of what it turns out are illegal requirements in the name of civil liberties on the FBI and the intelligence community that helped in a very significant way to make it difficult to respond to the news that there were hijackers or there were terrorists in the United States before 9/11. Had it not been for the FISA court’s wrong and extralegal policies, it’s quite possible that the hijackers would have been caught.

And after 9/11, after it became clear that this was part of the problem, the FISA court insisted on those illegal policies and forced the government to take its first appeal ever to the FISA review court. That suggested that the FISA court was not actually interested in protecting Americans, but had a goal that no one else in government shared, which was to maintain this wall between intelligence and law enforcement.

DANIEL ELLSBERG: That’s absolutely mistaken.

STEWART BAKER: But I kind of understand why they did it, but I have to say that as a lawyer, it’s hard to justify.

JUAN GONZÁLEZ: Mr. Baker, we just have about a minute left. You had the first word; we’ll have Dan Ellsberg respond.

DANIEL ELLSBERG: OK, I haven’t called Mr. Baker a liar. I certainly don’t regard him as anything other than patriotic. And I don’t think it’s his intent to deceive, but what he’s just said has given example that actually demonstrates the opposite of what he just said. He’s referring to the case of Khalid al-Mihdhar. I would assume—I would like to assume that he knew, but on the other hand, perhaps—

AMY GOODMAN: You have 30 seconds.

DANIEL ELLSBERG: —he was just ignorant of the fact that the fact that al-Mihdhar was known in this country—the hijacker who went into the Pentagon—was known by pre-NSA, pre-9/11 intelligence methods to the CIA. Their choice, deliberate not to give it to the FBI, had nothing to do with firewalls. I can’t believe you don’t know that, I’m sorry, Mr. Baker. And the fact is, it was not a fault of FISA. You’re joining me here in criticizing the FISA court. That’s ridiculous.

AMY GOODMAN: We’re going to have to leave it there, because we are out of time. Stewart Baker, former NSA general counsel, as well as worked at the Department of Homeland Security, and Dan Ellsberg, perhaps the country’s most famous whistleblower, leaked the Pentagon Papers to The New York Times in 1971, exposing the secret history of the U.S. involvement in Vietnam.