Jason Ditz / AntiWar.com & Josh Gerstein / Politico – 2013-08-11 00:52:17
Obama White Paper Claims Broad Surveillance Powers
Jason Ditz / AntiWar.com
(August 10, 2013) — The word “relevance” has now been officially tortured into a new word that means essentially nothing at all, as the Obama Administration’s “white paper” on surveillance stakes out a position claiming ridiculous levels of power based on the post-“enhanced interrogation” version of the word.
For years, the NSA’s telephone surveillance scheme never needed a public defense, because the public was never supposed to know about it in the first place. The Justice Department, asked to come up with one (which was obviously written long after the fact because it insists within the whitepaper that much of the program is too classified to defend at all), noticed that they have the power to collect things relevant to terror investigations, and decided that would work great if we’re not too picky on the word relevance.
And they’re not too picky, noting that most phone calls by most Americans have literally nothing to do with terrorism, but arguing that if you wad up all the data on all phone calls into a big database some of the calls might conceivably be relevant, and the others would catch relevance like some communicable disease.
It’s a lazy, and not particularly persuasive defense. Essentially it’s like putting a few frames of a bin Laden video into the middle of a South Park marathon and arguing that every single episode shown was “relevant” because bin Laden showed up that one time.
If the analogy sounds ridiculous, it’s because the argument is, because the Justice Department literally focuses their public case on the idea that courts will grant “relevance” to anything adjacent to something really relevant, even if that adjacency was done by the NSA after the fact just for the hell of it.
The burden of proof is impossibly weak, but given FISA courts’ role as a rubber-stamp behind a locked door, it’s also entirely plausible that they’re correct about how little it takes to satisfy judges.
Obama’s NSA Plans Bring Skeptics
Josh Gerstein / Politico
(August 9, 2013) — President Barack Obama jumped into the surveillance debate Friday, promising a new slate of reforms, oversight and greater transparency for the snooping efforts revealed by National Security Agency contractor Edward Snowden.
The folks talking about these issues all along responded with a resounding “meh.”
Many welcomed Obama’s engagement in the vigorous public dialogue, but said they regretted the president hadn’t been more specific and concrete in his discussion of potential surveillance reforms.
“I thought we were beyond ‘I will work with Congress,'” said Steven Aftergood of the Federation of American Scientists. “What are you going to do with Congress?”
“It wasn’t clear to me whether he means to continue collecting all these records and put stricter oversight on their use or whether he’s open to constricting the collection in the first place,” said Michelle Richardson of the American Civil Liberties Union. “It seems like Obama has passed denial and is now into the bargaining phase, saying, ‘What if we make these tweaks?’…We need him to accept this is not going to stand.”
Some civil liberties advocates saw Obama’s effort as more spin than substance.
“From Edward Snowden to mass surveillance to drones, President Obama’s remarks seem more like a PR exercise in making the American public comfortable with the government’s policies than actually acknowledging the problems inherent in them,” said Zeke Johnson of Amnesty International.
Obama did speak in vague terms about backing “appropriate reforms” to the law used to authorize the most controversial data gathering: a program that gathers data on virtually every telephone call made in the US and stores that information for five years.
“It didn’t get to the root issue: Is bulk collection acceptable?… And if people tell their elected representatives they don’t want it, what then? I thought he just sort of danced around the issue,” Aftergood said.
Even in the area of transparency and procedural reforms, Obama did not grapple with some of the most widely discussed proposals. He did not address suggestions that the telephone call data currently collected by the National Security Agency be stored instead by telephone companies.
And while unveiling a Justice Department document on the legal basis of the program and a seven-page NSA paper outlining its efforts, Obama did not announce release of any of the Foreign Intelligence Surveillance Court opinions that the programs’ critics and many lawmakers have been pressing for years to declassify.
Democrats in Congress were generally supportive of Obama’s comments, but also seemed to take note of the president’s omissions.
“Today’s announcement by the President that he is committed to making the intelligence community more transparent, as well as making changes to the Foreign Intelligence Surveillance Court and Section 215 of the Patriot Act is an encouraging development,” said Rep. Adam Schiff (D-Calif.) “For some time, I have been urging that the metadata program be restructured so that the data is held by the telecommunications companies rather than the government. I hope this is one of the reforms the president has in mind.”
“I will carefully examine the materials released today and will continue to press for greater transparency, including the release of significant FISA Court opinions about the Section 215 program,” said Senate Judiciary Committee Chairman Patrick Leahy (D-VT).
Obama’s assertion that he had embarked — before Snowden’s leaks — on a process that would have led to a robust public discussion of the trade-offs involved in modern-day surveillance met with a mixture of amusement and annoyance.
“Pres Obama’s claim that he was planning to reform these surveillance programs prior to the leaks is laughable,” prominent surveillance foe Rep. Justin Amash (R-Mich.) wrote on Twitter.
“It’s disingenuous to say we would have gotten to this point eventually without Snowden. That did not ring true,” Aftergood said.
Richardson noted that, until Snowden’s leaks, the Obama administration generally resisted efforts by a variety of lawmakers seeking to declassify aspects of the programs. Justice Department lawyers also fought in court against lawsuits trying to pry out more details about the surveillance and the legal opinions upholding it.
“The past administration and this one went out of its way to hide meaningful details and prevent a meaningful discussion,” she said.
One of the measures Obama announced Friday was a new blue-ribbon panel to adviser the government on how to navigate the challenges new technology produce for privacy.
“I am tasking this independent group to step back and review our capabilities — particularly our surveillance technologies. And they’ll consider how we can maintain the trust of the people, how we can make sure that there absolutely is no abuse in terms of how these surveillance technologies are used, ask how surveillance impacts our foreign policy — particularly in an age when more and more information is becoming public,” the president said.
The announcement immediately raised questions about how the new panel’s duties would differ from those of a variety of other boards who already operate in the same area.
Obama took years to appoint a full slate of commissioners for the Privacy and Civil Liberties Oversight Board, which finally got off the ground in recent months and is already tackling the NSA surveillance controversies.
Two other relatively obscure panels, the President’s Intelligence Advisory Board and the Intelligence Oversight Board, are already charged with providing outside oversight of the government’s intelligence efforts. And the NSA also has its own advisory board.
Now, Obama is directing that another group of outsiders — created from scratch and expected to be heavy with technology industry types — be layered on top of those other panels.
Aftergood said the mandate of the new group sounds a lot like what the PIAB is supposed to do.
“Those are outside experts already working on intelligence issues. They’re fully cleared and briefed and are meeting anyway. I would sort of presume this would be assigned to them,” he said.
Aftergood, who tracks classification and intelligence issues, said he’s not unamibiguously opposed to the NSA’s call-tracking efforts, but wants more information on whether they’ve actually prevented terrorism. He said Obama didn’t provide evidence of that Friday.
“If this is saving thousands of lives, I’m willing to sacrifice my privacy, I’m willing to sacrifice my privacy to save thousands of lives — at least on a temporary basis,” the analyst said. “There really isn’t a consensus…. [Intelligence] officials say they’re going to explain, but they have not been able to articulate that…. The president himself would have been better served if he had clarified the debate rather than evaded it.”
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