339. The Spy State: Persistent and Unchallenged

Introduction

0:00Hi, everybody, Sheryl Ackeson here. Welcome to another edition of the Sheryl Ackeson podcast.

0:13Today, the Intel agency's long and well-documented history of spying and lying, violations against tens of millions of U.S. citizens, members of Congress, journalists, all longstanding. USAA knows dynamic duos can save the day, like superheroes and sidekicks, or auto and home insurance. With USAA, you can bundle your auto and home and save up to 10%. Tap the banner to learn more and get a quote at usaa.com slash bundle. Restrictions apply.

0:46Lots of places can expose you to identity theft. Oh, no. That's why LifeLock monitors hundreds of millions of data points a second for threats to your identity, which is way more than anyone can do on their own. If we find anything suspicious, like new loans or changes to your financial accounts, we alert you right away, all through text, phone, email, or the LifeLock app. Get the alerts that could make all the difference. Save up to 30% your first year at LifeLock.com slash special offer. Terms apply. News that special counsel Jack Smith under the Biden administration spied on Congress and then

1:23lied about it really should be of no surprise. It's far from the first time something like that has happened. And since nobody has been held accountable in the past, at least in any meaningful way, why would anybody expect the behavior to stop? Why wouldn't the abuses expand? In fact, we're becoming kind of numb to the revelations and even less outraged by them because they're becoming more common. The same could be said after the forensically proven government spying on me and my family. I was an investigative correspondent at CBS News at the time. The Department of Justice has

1:58defended the improper spying against me in court under Obama, Trump, and Biden, rather than holding the guilty parties accountable. Let's look at an early scandal that left the guilty officials unscathed and I think

Clapper Testimony

2:14foreshadowed more to come. In March of 2013, Director of National Intelligence James Clapper gave false information under oath before the Senate Intelligence Committee. Senator Ron Wyden, a Democrat from Oregon, asked Clapper directly, does the NSA collect any type of data at all on millions or hundreds of millions of Americans? No, sir. It does not. Not wittingly. The backdrop of that is that Senator Wyden knew in the moment that Clapper

3:04wasn't telling the truth because Senator Wyden was privy to classified information through briefings as a member of the Intelligence Committee and had learned about this outrage. He couldn't publicly expose it himself because of the nature of the information, but asking Clapper an open testimony before Congress, he thought would expose it. But then here was Clapper not telling the truth. We didn't know it at the time, the rest of us, but the National Security Agency, the NSA, was secretly collecting massive amounts of telephone metadata,

3:37records of who called whom when and for how long, on tens of millions of Americans through the Section 215 program along with other bulk surveillance programs. This is arguably disallowed, unconstitutional, potentially illegal. The NSA is supposed to be listening in on, if anybody, foreign actors, people that are suspected of terrorism, maybe if they're communicating with terrorist actors here in the United States, but not innocent Americans collecting their bulk data en masse. Well, months later, after that testimony by Clapper

4:14that wasn't true, that we didn't know wasn't true at the time, in June of 2013, former NSA contractor Edward Snowden leaked a trove of classified documents to journalists, including Glenn Greenwald. The documents revealed the vast scope of NSA surveillance, including the PRISM program, collecting data from tech companies like Google, Facebook, and Apple, bulk collection of Americans' phone records, other global surveillance programs targeting both foreigners and U.S. people. The Snowden leaks left no doubt. Clapper's testimony was untrue. Well, initially, there was outrage on

4:50Capitol Hill. In July of 2013, Clapper was forced to return to Congress to address this growing scandal. I mean, people were demanding his head. He faced sharp questioning from both Republicans and Democrats. In a public hearing, as well as closed sessions, lawmakers, including some Democrats, expressed anger and accused Clapper of misleading Congress under oath, which clearly, in my view, he had. There was talk that Clapper would surely have to resign, and it was building as he kept making these

5:21visits to Capitol Hill and trying to, I guess, explain or talk his way out of it. But how could he be trusted if he'd not only lied under oath, but if he had also allowed the unconstitutional-seeming mass surveillance of innocent Americans in the first place? Clapper did publicly apologize. He claimed he had given what he called the least untruthful answer that he could. He also claimed he misunderstood Senator Wyden's question, which I think was crystal clear. But after private meetings on the Hill,

5:52Clapper somehow seemed to turn everything around. And we don't know exactly what was said in those private meetings or how he did it, but after all the people were demanding heads and talking about him having to resign, no formal charges were brought against him, he was not fired, and he actually managed to use the controversy to lobby for expanded authority. Clapper remained D&I director until January of 2017. Now, that, of course, wasn't the only big surveillance controversy. In 2014 and 2015, reports

6:25emerged that the CIA had spied on Senate Intelligence Committee staffers on Capitol Hill while they were investigating the CIA's own enhanced interrogation program. This included the CIA getting unauthorized access to Senate computers and documents. Senate staff under Democrat leadership at the time discovered the spying leading to major bipartisan outrage. At the time, this was considered almost unheard of. I mean, maybe spying on Congress had happened before, but this was the first time the public

6:58at large had heard about it. Here was an agency spying on the very congressional committees and members who were conducting oversight of the agency. And it surely lends credence to the theories that members of the CIA and our intelligence agencies are gathering blackmail material against people that they don't want to say or do certain things or take certain actions. And if they hold this material against members of Congress who conduct oversight on the agencies, well, that can be very tricky. Senator Dianne Feinstein, a Democrat of California and then the chair of the Senate Intelligence

7:33Committee, was very public in her criticism of the CIA. In March of 2014, she publicly accused the CIA of spying on Congress in a dramatic floor speech, and she described it as a serious constitutional breach, which I think it was. In 2015, there were further revelations about broader intelligence community service of members of Congress, including the intelligence community monitoring calls with American Jewish groups, foreign officials, and others. There were reports of leaked recordings

8:06involving lawmakers such as Jane Harman and Dennis Kucinich, both Democrats in Congress. In other words, our intelligence community had listened in on them on sensitive phone calls, and then leaked recordings of these calls in some cases, and still nobody was held accountable. All was forgiven. Obviously, everybody now knows the FBI also improperly spied on Trump officials and Trump himself, and that the head of the FBI, James Comey, was recommended for prosecution for taking

8:37sensitive records about Trump out of the office in order to use them against Trump. The Department of Justice, of course, declined prosecution against Comey at the time. Now we've grown numb to news of improper and possibly illegal government spying since we've heard it so many times. No longer does the outrage seem as loud or as universal. It's as if the attitude is now, of course, the government spies on Congress. Why wouldn't you expect anything else? They spy on all of us. Nobody should be surprised then that it continues. After a short break, I am going to play a story for you that I did 10 years ago on my Sunday TV

9:16show, Full Measure. I still think it's one of the most fascinating and telling stories that I've ever done, and it involves this very topic. So stay right there.

Nascio Story

9:26This is a story I reported on March 13, 2016. I think there are so many lessons in it, and I just thought it was a fascinating story to research and report on. So see what you think.

9:43Today, we have an extraordinary story that predates the Apple conundrum. In fact, it predates what most understand to be the beginning of widespread surveillance of U.S. citizens after 9-11. In October of 1997, Joseph Nascio was CEO of Quest Communications, a major phone company out west. One of his vice presidents told him he had an unexpected visitor. He came in and he said, Joe, we have a general downstairs who wants to meet you, which I thought was pretty surprising because generals just don't drop by. It was a three-star. Who was the general? His name is

10:17classified, believe it or not, who it was. I'm still not allowed to disclose. The general was from a U.S. intelligence agency interested in paying Quest to use its cutting-edge global fiber optics network for classified programs. But to learn more, Nascio first needed a top-secret security clearance. I had my clearance by January of 1998. We received that contract shortly thereafter, and that led to us working with multiple intelligence agencies. Nascio's job as CEO of Quest became steeped

10:53in a secretive world of classified meetings and clandestine government contracts. He's still barred from saying exactly what the projects involved. So you can either put equipment in, you can either monitor. There's a whole bunch of things you can do. As head of a telecom company, you are meeting with top spy agency people. Yes. What I'm allowed to say that I worked with four clandestine security agencies and senior government officials. For several years, Nascio says, government requests

11:23to monitor and surveil Quest customers came with proper legal authority and brought Quest lots of cash. The telecom companies, they make a lot of money off these contracts when they cooperate with the intel agencies. But it's all done in a classified way that nobody sees it. So yes, we made money. And again, as a CEO of a public corporation, that's good business besides being patriotic. Was it hundreds of millions of dollars over the years? Oh, easily. Yes. The mutually beneficial relationship continued until February 27th, 2001, when Nascio says he got an astonishing request

12:00at a meeting at the headquarters for the National Security Agency, or NSA. I fly into Washington, my guys meet me, take me to a skiff that we have that's in Maryland. A skiff is one of those rooms that are designed to specs that you can't have eavesdropping on. When I grew up, and we used to watch Maxwell Smart on television, it was the cone of silence thing. I go there, I get briefed. And then at the end, which was very surprising, a new request is made of us. By whom? By someone across the table. I was supposed to meet with Admiral Hayden that day. He didn't show up at

12:32the last minute, which should have put yellow flashing lights in my... He was head of the NSA at the time. He was head of the NSA. He was the three star, head of the NSA, who Bush later appoints to be four stars and runs the CIA. So when that request came, I was a little bit surprised. It didn't sound right to me. As a matter of fact, it sounded very wrong to me. What was the request? Well, it was a request to do something that, under the law, I didn't believe the foreign intelligence agencies, particularly NSA, were authorized to do unless they had a FISA warrant. A FISA warrant would come

13:04from the secretive Foreign Intelligence Surveillance Court and would authorize the NSA to do something that was otherwise illegal for it to do, collect data in the U.S. And you can't say exactly what they asked? No, no, that remains classified. Something was asked. I asked if they had a FISA warrant. They said it wasn't required. I thought that was pretty strange. If there was no warrant, he says he asked if the White House had given executive authority for the project. They said it wasn't required. This was under President Bush. Yes, this was under President Bush. And this is prior to 9-11. So I said we couldn't do it.

13:37And we wouldn't do it. The 9-11 terrorist attacks are often cited as justification for the government's controversial programs to collect information on Americans without court warrants. But the NSA proposition to Quest was nearly seven months before 9-11, according to Nashio. After that meeting, there were repeated requests over the next several months. And I continued to answer the request by saying, look, show me legal authority and we'll be happy to do it. OK, but I can't do it without legal authority. You know, I can be sued civilly,

14:11but the government can't. How did you begin to understand that you were becoming odd man out? It was June 5th of 2001, about four months later. And I'm sitting next to Dick Clark and Dick leans over to me and he says, kind of incidental to the purpose of the meeting, Joe, you know that contract that you thought you guys were getting? And he named it. I said, yeah, he says, well, it's going to someone else. And I was a little bit surprised because we've been working on this a long time. Dick, or Richard Clark, was President Bush's chief counterterrorism advisor.

14:42He didn't respond to our request for comment. He's shown here in 2002, giving Nashio a presidential certificate. In this photo, Nashio and other CEOs are shown with Clark being sworn in on the president's National Security Telecommunications Advisory Committee. Nashio says that contract Quest wasn't getting after all dealt a major blow. A valuable contract? Yeah, we're talking in the hundreds of millions. Okay, we're not talking 10 million. We're talking big deal contract. Well, what ends up over the next several months is about four or five

15:14contracts we thought we were going to get, we never got. Nashio viewed it as reprisal for his refusal to take part in what he viewed as an illegal program. It was an excess of 500 million that I was counting on that didn't come in that year in 2001 alone. Nashio left Quest the following year without mending that fence. Then, three years later in August of 2005, he got a call. The Justice Department was investigating him for insider trading of Quest stock four years earlier. Nashio claims the government was targeting him in

15:46retaliation, something the government strongly denies. His defense hinged on telling the jury how his relationship with the spy agencies had gone sour. But there was a catch. It was all classified. Nashio lost his case. I'm barred under the law from bringing any of it up. I'm barred from the contracts. I'm barred from naming the agencies. I'm barred from naming who I was worth. I was even barred from saying the meeting on February 27th happened. Some of it would later become public. About the time of Nashio's indictment, the government's

16:21controversial programs were revealed for the first time. This is a highly classified program that is crucial to our national security.

16:31The New York Times reported the NSA had been using phone companies to collect private information of U.S. citizens without court warrants. The NSA specifically targets the communications of everyone. It ingests them by default. Later, NSA contractor Edward Snowden blew the whistle in this explosive interview with The Guardian. He exposed the Obama administration's vast expansion of data collection. I, sitting at my desk, certainly had the authorities to wiretap anyone from you or your accountant

17:03to a federal judge to even the president if I had a personal email. It was Snowden's example of a federal judge that hit home with Nashio. By then, he was serving a four-and-a-half-year prison sentence. In a bizarre twist, the judge in Nashio's case, Edward Nottingham, was soon embroiled in scandal, accused of soliciting prostitutes, and allegedly asking one to lie to investigators. He resigned and apologized, but wasn't prosecuted. After his dealing with the spy agencies, Nashio wonders if they knew about Nottingham's private

17:35scandal. Could that have been held over the judge's head as he ruled for the government against Nashio? Look, I think the intelligence agencies in that time frame were wiretapping government officials, judges. I mean, they were just monitoring everything. Government officials call Nashio a convicted felon whose speculation can't be believed. Nottingham firmly denies anyone spoke to him about his personal scandals during Nashio's trial. An appeals panel overturned Nashio's conviction, saying Judge Nottingham erred in a key ruling,

18:06but the guilty verdict was upheld on appeal. President Bush's NSA and CIA chief Michael Hayden, a Nashio point of contact back then, didn't respond to our request for comment, but has championed the controversial surveillance. Everything that the agency has done has been lawful. It's been briefed to the appropriate members of Congress that the only purpose of the agency's activities is to preserve the security and the liberty of the American people. And I think we've done that. President Obama also defends the government's mass data collection.

18:37When it comes to telephone calls, nobody is listening to your telephone calls.

18:46That's not what this program's about. My advice to people is put nothing on the Internet that you wouldn't take a billboard out on 42nd Street and Broadway and publicize. You have your bank records, your health records, your looking at porn sites, your illegal dating or whatever you're doing, is all known. By the government. And by their agents. Now let's remember who the agents are. The agents are the telephone companies, the agents are the banks, the agents are Apple, the agents are Google, the agents are Facebook.

19:17They're all involved. What do you tell Apple if they were to call you and ask you for advice? I would have said, keep this very quiet and cooperate, because you're going to lose this one in court. And what's going to happen to you when this is all over is for the next five years of your life, every federal agency that has some jurisdiction on you is going to be crawling all over Apple. And that's what they do. All right. That's a lot to digest, but I think you got the gist of it.

20:00The CEO of a major telecom company exposed that before 9-11, our intel communities, the NSA was having meetings and agreements and paying trillions of dollars to the telecom agencies in order to do all kinds of arrangements. And it veered into listening in on Americans, which Nashio alone, apparently at Quest, stood up against and said, I'm going to get in trouble if you're saying I can do this and don't,

20:31you don't need a warrant, but no one's exempting me from it. And I could be in big trouble as CEO of this company without the proper authority. So when he wouldn't go along, what happened? They pulled a half trillion dollars of contracts from his company and then ended up prosecuting him way after the fact for supposed insider trading, a conviction that was questionable. Some of the rulings in court that wouldn't let him even present that he had ticked off the intel community. So the jurors never knew that the NSA was mad at him.

21:04This was potential retaliation. The judge wouldn't let that entered into the court record. And then the judge himself was potentially compromised, ended up leaving office under the weird porn charges. The conviction against Nashio was overturned because of improper behavior, but then upheld on appeal. I mean, this goes on and on. This guy served four years in prison, he thinks, for going up against the intel community. Again, this is expanded surveillance. They were already secretly doing well in advance of 9-11.

21:38Food for thought.

Conclusion and Reflection

21:39And once again, furthers the idea that for so long we hear about these outrages and violations, and because nobody is held accountable and nothing meaningful is done about them, why would we be surprised that this continues and probably even expands? I hope you enjoyed today's podcast and that if you did, you will consider sharing it with your friends, subscribing, and leaving a terrific review. Also, check out my other podcast, Full Measure After Hours.

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22:47And, do your own research, make up your own mind, think for yourself.