“This is a crazy story. For two decades, the secret launch code for America’s nuclear missiles was 0000000000. Even more amazing, George W. Bush forgot it twice.” –Conan O’Brien
In case anyone missed it the launch codes really were a string of zeros in order to reduce any potential delay in launching. I bet Stanley Kubrick would have used this in Doctor Strangelove if he was aware of this fact.
Three Senators, Senators Ron Wyden (D-Ore), Mark Udall (D-Colo), and Martin Heinrich (D-N.M), have proposed legislation to help restore Fourth Amendment privacy protections following recent revelations regarding NSA surveillance. They have an op-ed in The New York Times which explains their position and their opposition to currently proposed legislation form the Senate intelligence committee which would codify current surveillance without providing privacy protections. Their op-ed begins:
End the N.S.A. Dragnet, Now
THE framers of the Constitution declared that government officials had no power to seize the records of individual Americans without evidence of wrongdoing, and they embedded this principle in the Fourth Amendment. The bulk collection of Americans’ telephone records — so-called metadata — by the National Security Agency is, in our view, a clear case of a general warrant that violates the spirit of the framers’ intentions. This intrusive program was authorized under a secret legal process by the Foreign Intelligence Surveillance Court, so for years American citizens did not have the knowledge needed to challenge the infringement of their privacy rights.
Our first priority is to keep Americans safe from the threat of terrorism. If government agencies identify a suspected terrorist, they should absolutely go to the relevant phone companies to get that person’s phone records. But this can be done without collecting the records of millions of law-abiding Americans. We recall Benjamin Franklin’s famous admonition that those who would give up essential liberty in the pursuit of temporary safety will lose both and deserve neither.
The usefulness of the bulk collection program has been greatly exaggerated. We have yet to see any proof that it provides real, unique value in protecting national security. In spite of our repeated requests, the N.S.A. has not provided evidence of any instance when the agency used this program to review phone records that could not have been obtained using a regular court order or emergency authorization.
Despite this, the surveillance reform bill recently ratified by the Senate Intelligence Committee would explicitly permit the government to engage in dragnet collection as long as there were rules about when officials could look at these phone records. It would also give intelligence agencies wide latitude to conduct warrantless searches for Americans’ phone calls and emails.
This is not the true reform that poll after poll has shown the American people want. It is preserving business as usual. When the Bill of Rights was adopted, it established that Americans’ papers and effects should be seized only when there was specific evidence of suspicious activity. It did not permit government agencies to issue general warrants as long as records seized were reviewed with the permission of senior officials.
Attacking Afghanistan made far more sense than to attack Iraq as George Bush did following the 9/11 attack. * I could see an attack to disrupt al Qaeda and was happy to see bin Laden killed, but questioned if we would see any long-term benefits from installing a government there. This somewhat confirms my skepticism–Afghanistan is now planning to restore the Taliban policy of stoning women for adultery:
Afghanistan is planning to reintroduce public stoning as punishment for adultery 12 years after the Taliban was ousted from power, according to a new draft penal code.
The move has shocked human rights campaigners and will dismay donors who have poured billions of pounds into the country for reconstruction.
It will be viewed as another backwards step at the end of a year that has seen women’s rights undermined, with a slew of legislation and murders of prominent women.
Human Rights Watch called for international donors to withhold funding if the government goes ahead with the plan.
“It is absolutely shocking that 12 years after the fall of the Taliban government, the Karzai administration might bring back stoning as a punishment,” said Brad Adams, Asia director at HRW…
As repulsive as both groups are, stoning is far worse than the forced vaginal probes and restrictions on reproductive rights which are supported by the American Taliban.
(* I would hope that by now the whole Truther line that 9/11 was an inside job by the Bush administration instead of a terrorist act by al Qaeda has been forgotten. In case anyone is still interested in that nonsense, Noam Chomsky has recently joined many others in debunking that conspiracy theory. Chomsky mocked “people around who spend an hour on the Internet and think they know a lot physics.” On the other hand, that is how the Internet works. How many other people on the far right with no knowledge of biology or climate science are coming up with arguments against evolution and global warming?)
Following recent complaints by German Chancellor Angela Merkel that her phone was being tapped by the NSA, it now appears that she was just one of thirty-five world leaders according to a report in the Guardian:
The National Security Agency monitored the phone conversations of 35 world leaders after being given the numbers by an official in another US government department, according to a classified document provided by whistleblower Edward Snowden.
The confidential memo reveals that the NSA encourages senior officials in its “customer” departments, such the White House, State and the Pentagon, to share their “Rolodexes” so the agency can add the phone numbers of leading foreign politicians to their surveillance systems.
The document notes that one unnamed US official handed over 200 numbers, including those of the 35 world leaders, none of whom is named. These were immediately “tasked” for monitoring by the NSA.
The revelation is set to add to mounting diplomatic tensions between the US and its allies, after the German chancellor Angela Merkel on Wednesday accused the US of tapping her mobile phone.
After Merkel’s allegations became public, White House press secretary Jay Carney issued a statement that said the US “is not monitoring and will not monitor” the German chancellor’s communications. But that failed to quell the row, as officials in Berlin quickly pointed out that the US did not deny monitoring the phone in the past.
The NSA memo obtained by the Guardian suggests that such surveillance was not isolated, as the agency routinely monitors the phone numbers of world leaders – and even asks for the assistance of other US officials to do so.
The program has provided intelligence to add additional world leaders to those under surveillance but beyond this has provided “little reportable intelligence.” I imagine that to those who have the mentality that records should be kept on every phone call made in the United States, a program which increases the number of world leaders they can spy of is of value.
This report has led to protests from the European Union, including Germany, France, and Italy. I wonder how much useful intelligence might be denied to the United States in the future if other nations should be come wary about sharing intelligence with the United States.
I am still waiting to see what specifically is planned, but it is hard to imagine military intervention in Syria which will be much more than symbolic in opposition to the use of sarin gas. While I question Obama’s military plans, he deserves tremendous credit for his decision to honor the Constitution and take the matter before Congress. Walter Shapiro discussed the significance of this:
…the president, a former part-time constitutional law professor, may have also belatedly recalled the wording of Article One, Section Eight of the Constitution that grants Congress the sole power “to declare war.”
But whatever Obama’s underlying motivations and however the Syrian vote plays out on Capitol Hill, the president’s decision to go to Congress represents an historic turning point. It may well be the most important presidential act on the Constitution and war-making powers since Harry Truman decided to sidestep Congress and not seek their backing to launch the Korean war.
Just a few days ago, before Obama’s decision was known, legal scholars from both the right and the left were in agreement that waging war over Syria – no matter how briefly – without congressional approval would bend the Constitution beyond recognition.
Jack Goldsmith, a Harvard law professor who served as a Bush administration lawyer during the run-up to the 2003 Iraq war, wrote in the legal blog Lawfare, “The planned use of military force in Syria is a constitutional stretch that will push presidential war unilateralism beyond where it has gone before.” And liberal constitutional scholar Garrett Epps, writing for the Atlantic , concluded, “It’s pretty clear that an American attack would violate the Constitution.”
Shapiro summarized past decisions by presidents to use military power and concluded:
No American lives are in danger and the national security threat is hard to identify. Not only is NATO not participating, but also neither are the Brits, the United State’s closest diplomatic ally. With Russia serving as Assad’s enabler, there will be no Security Council resolution or UN mandate.
Every time a president employs questionable legal arguments to wage war, it becomes a valuable tool for the next Commander in Chief impatient with the constitutional requirement to work through Congress. That’s why it would have been so dangerous for Obama to go forward in Syria without a congressional vote or the support of the UN or NATO. It is as much of a slippery slope argument as the contention that Iran, say, would be emboldened with its nuclear program if America did not punish Assad’s chemical attacks.
Assuming Obama wins congressional approval, America’s coming attack on Syria is designed to set a lasting precedent: No government can ever again use chemical, biological – let alone nuclear – weapons without facing devastating consequences. As Obama asked rhetorically in his Saturday Rose Garden statement, “What message will we send if a dictator can gas hundreds of children to death in plain sight and pay no price?”
But Obama’s decision to seek congressional approval may prove to be an even more important precedent. Future presidents – as they consider unilateral military action without American security hanging in the balance – will have to answer, “Why didn’t you go to Congress like Obama did over Syria?”
Confronted with a series of wrenching choices over Syria, Obama chose the course that best reflects fidelity to the Constitution as written. Hopefully, in the days ahead, taking that less traveled road by presidents will make all the difference.
I am not optimistic that any military action will make a difference as to whether WMD is used by future dictators. I am more hopeful that Obama is setting an important precedent here which may affect future decisions by American presidents to go to war. Next I am hoping that by the time Obama leaves office we have a better system for the institutionalization of conducting war in the modern era on issues ranging from drone strikes to surveillance. It is also amusing to see conservatives who have been making absurd claims of dictatorship under Obama now attack him for his decision to follow the Constitution.
Apparently we have to bomb Syria because they used chemical weapons. I believe the mindset is that under international law, two wrongs can make a right.
Plus under Republican logic, Obama both exercises dictatorial powers and he is weak because he can’t decide to take military action without following the Constitution and going before Congress.
The most absurd reaction was Donald Rumsfeld saying Obama hasn’t made the case for striking Syria. He may be right, but Rumsfeld is in no position to question Obama about taking limited action regarding real WMD after he backed a major war over non-existent WMD.
Since Edward Snowden leaked information on the degree to which the NSA has been conducting surveillance on Americans it has often appeared that tech companies have given the government whatever access it wants to our personal information. An opinion piece at Wired suggests that tech companies are fighting back:
Everyone assumes that technology companies like Apple, Facebook, and Google don’t care that their customers are being spied on. I don’t believe that’s true.
On the very day the media dropped detailed documents on the NSA’s X-Keyscore collection program, the Facebook engineering team published a blog post stating that all access to Facebook via apps and web browsers was now SSL encrypted. Given X-Keyscore was a program primarily designed to intercept unencrypted internet traffic, you could be forgiven for interpreting Facebook’s post as a middle finger pointed in NSA’s direction. (Sources inside Facebook say it is a coincidence, and indeed the company had been in the process of enabling this across-the-board for years. But still. The timing.)
There are new interception hurdles everywhere you look. Even plain old SSL encryption is becoming more difficult to snoop on. Previously, governments could rely on complicit or compromised certificate authorities to provide them with the means to intercept encrypted traffic. Thanks to the Iranian government’s overly enthusiastic use of this technique, Google made changes to the Chrome browser to neuter the practice. Similar updates are expected soon in Internet Explorer. There goes another interception technique for law enforcement!
And it’s only going to get worse for the poor ole G-Men. Technology companies are enabling security features that make certain types of government surveillance extremely difficult, and it’s a trend that’s set to continue. That’s why the U.S. government has long wanted laws that force tech companies to make their products wiretap friendly…
Currently, there’s no law stopping companies like Apple, Facebook, and Google from introducing such security changes or forcing them to build in backdoors. Why would Apple want its users migrating to cross-platform, anti-snooping messaging apps like Hemlis (by the founders of The Pirate Bay)? Especially when the company could push itself out of the surveillance business with its own technical tweaks before federal regulations force them to become key players in warrant execution.
In fact, advancements in the usability of cryptographic protocols have made anti-surveillance features relatively simple for technology companies to bake into their communications products. And public demand for greater security and privacy in the wake of Edward Snowden’s revelations may make it virtually obligatory for them to do so before new wiretapping laws can be introduced.
It is increasingly looking like Edward Snowden’s release of information is as important in defending civil liberties (and understanding the threats) in the technological age as Daniel Ellsberg’s release of the Pentagon Papers were in spreading knowledge of how the government was lying about Viet Nam. Snowden’s actions have probably prevented the passage of new laws which would further enable organizations such as the NSA to violate our privacy rights:
Today, an attempt to introduce laws that would heavily fine software and internet companies for failing to make their products wiretap-friendly would be met by a full-scale revolt by the commentariat — and by the noisy political fringe on the left and the right.
President Obama was reportedly on the verge of backing the new wiretapping plan as recently as May this year. Only the “Snowden files” hit the press one month later, and surveillance became a hot-button issue. These laws seemingly dropped off the agenda.
For now.
Before Snowden, the proposed law would have been a mildly controversial but grudgingly accepted compliance regime for technology companies. The blowback might have been limited to a few angry Reddit threads and Anonymous denial-of-service attacks against government websites.
Now, it would become a serious political liability for the Obama administration — as well as a public relations and commercial disaster for the technology industry.
We are seeing an example of tech companies pushing back in this statement from Microsoft about a joint effort with Google to increase transparency. The Washington Post offers further background information as to why Microsoft and Google want to be able to discuss information beyond the government plans to release annual reports on the government’s surveillance activity:
The company wants to be able to discuss just the court orders that it receives, rather than a larger bucket of reports that also includes demands made of other tech companies. Google has made a similar plea in a separate filing to the FISA court. It’s as much a public relations move as a bid for greater openness; by showing company-specific numbers, Microsoft and Google would be able to put distance between themselves and the Justice Department.
Microsoft goes one step further than Google, however. In accordance with the practices contained in its own transparency report, Microsoft said that the government should break down those numbers even more to distinguish requests for user metadata, such as IP addresses and e-mail header information, from demands for user content, which would expose personally identifiable information such as the actual text of e-mails to law enforcement.
Airports have become a zone where we have less rights and are more at the mercy of government intrusion. Over the weekend, Glenn Greenwald’s partner, David Miranda, was detained for nine hours (the maximum allowed under British law). For Andrew Sullivan, this tipped the balance:
Readers know I have been grappling for a while with the vexing question of the balance between the surveillance state and the threat of Jihadist terrorism. When the NSA leaks burst onto the scene, I was skeptical of many of the large claims made by civil libertarians and queasily sympathetic to a program that relied on meta-data alone, as long as it was transparent, had Congressional buy-in, did not accidentally expose innocent civilians to grotesque privacy loss, and was watched by a strong FISA court.
Since then, I’ve watched the debate closely and almost all the checks I supported have been proven illusory. The spying is vastly more extensive than anyone fully comprehended before; the FISA court has been revealed as toothless and crippled; and many civilians have had their privacy accidentally violated over 3000 times. The president, in defending the indefensible, has damaged himself and his core reputation for honesty and candor. These cumulative revelations have exposed this program as, at a minimum, dangerous to core liberties and vulnerable to rank abuse. I’ve found myself moving further and further to Glenn’s position.
What has kept me from embracing it entirely has been the absence of any real proof than any deliberate abuse has taken place and arguments that it has helped prevent terror attacks. This may be too forgiving a standard. If a system is ripe for abuse, history tells us the only question is not if such abuse will occur, but when. So it is a strange and awful irony that the Coalition government in Britain has today clinched the case for Glenn.
A disclosure upfront: I have met David Miranda as part of a my friendship with Glenn Greenwald. The thought of his being detained by the British police for nine hours because his partner embarrassed the American government really sickens me at a gut level. I immediately think of my husband, Aaron, being detained in connection to work I have done – something that would horrify and frighten me. We should, of course, feel this empathy with people we have never known – but the realization is all the more gob-smacking when it comes so close to home. So of course my instinct is to see this exactly as Glenn has today.
This was more of an emotional response than a fact-based one, yet it is a response which many feel sympathy with, along with many in the news media. Technically the use of a law in the U.K. (which many there agree needs to be reformed) says nothing about NSA abuses by the United States. Looking at just the law, and not questions as to whether Snowden did the right thing in releasing this specific classified information, there does appear to be some justification for investigating Miranda (even if handled in an excessive and abusive manner). The New York Times reports:
Mr. Miranda was in Berlin to deliver documents related to Mr. Greenwald’s investigation into government surveillance to Ms. Poitras, Mr. Greenwald said. Ms. Poitras, in turn, gave Mr. Miranda different documents to pass to Mr. Greenwald. Those documents, which were stored on encrypted thumb drives, were confiscated by airport security, Mr. Greenwald said. All of the documents came from the trove of materials provided to the two journalists by Mr. Snowden. The British authorities seized all of his electronic media — including video games, DVDs and data storage devices — and did not return them, Mr. Greenwald said.
Despite the attention this detention has received, the real issue remains the abuses by the United States government regarding surveillance, and the failure of those bodies entrusted to provide oversight. The detention of Miranda is a side issue. However on an emotional level seeing someone detained for nine hours and having their property seized is a more tangible warning of the dangers of government abusing its power, for many easier to understand than the evidence released to date.
Updates: The White House had advanced notification but denies having any role in the detention. Glenn Greenwald is threatening to release UK secrets in retaliation.
Update II: It looks like Reuter’s took Greenwald’s statement out of context in their interview and a better summation might be that Greenwald said he would not let this deter him from continuing to release documents.
Jonathan Chait looks back on those days not very long ago when the media was obsessed by scandals involving the Obama administration now that the claims of scandal have been debunked.
Do you remember how all-consuming the “Obama scandals” once were? This was a turn of events so dramatic it defined Obama’s entire second term — he was “waylaid by controversies,” or at least “seriously off track,” “beset by scandals,” enduring a “second-term curse,” the prospect of “endless scandals,” Republicans “beginning to write his legislative obituary,” and Washington had “turned on Obama.” A ritualistic media grilling of Jay Carney, featuring the ritualistic comparisons of him to Nixon press secretary Ron Ziegler, sanctified the impression of guilt.
After providing evidence as to why the IRS scandal was not a true scandal involving Obama, Chait resumed:
Why did we think the agency was targeting only conservatives? Because apparently Darrell Issa, chairman of the House Oversight Committee, ordered the agency to audit its treatment of tea-party groups, and only tea-party groups. The IRS dutifully reported it was indeed targeting tea-party groups; everybody assumed it was doing no such thing to liberal groups. The IRS inspector general is defending its probe, but the IRS’s flagging of conservative groups seems, at worst, to be marginally stricter than its flagging of liberal groups, not the one-sided political witch hunt potrayed by early reports.
What about the rest of the scandals? Well, there aren’t any, and there never were. Benghazi is a case of a bunch of confused agencies caught up in a fast-moving story trying to coordinate talking points. The ever-shifting third leg of the Obama scandal trifecta — Obama’s prosecution of leaks, or use of the National Security Agency — is not a scandal at all. It’s a policy controversy. One can argue that Obama’s policy stance is wrong, or dangerous, or a threat to democracy. But when the president is carrying out duly passed laws and acting at every stage with judicial approval, then the issue is the laws themselves, not misconduct.
The whole Obama scandal episode is a classic creation of a “narrative” — the stitching together of unrelated data points into a story. What actually happened is this: House Republicans passed a twisted account of a hearing to ABC’s Jonathan Karl, who misleadingly claimed to have seen it, creating the impression that the administration was caught in a major lie. Then the IRS story broke, which we now see was Republicans demanding a one-sided audit and thus producing the impression of one-sided treatment. In that context, legitimate controversies over Obama’s civil-rights policies became the “three Obama scandals,” exposing a government panopticon, if not a Nixonian administration bent on revenge.
The collapse of the Benghazi story happened very quickly, when Jake Tapper’s reporting found that Karl had peddled a bogus story. (It’s notable that the only misconduct in both the Benghazi and the IRS stories was committed by House Republicans.) But the scandal cloud lingered through the still-extant IRS scandal, which in turn lent the scandal odor to the civil-liberties dispute. Now that the IRS scandal has turned into a Darrell Issa scandal, we’re left with … an important dispute over domestic surveillance, which has nothing to do with scandal at all. The entire scandal narrative was an illusion.
The biggest scandals here are that Republicans are misusing their positions to fabricate scandals, including hiding testimony from the American people which doesn’t support their false narrative.
Edward Snowden is in the transit area of the Moscow airport, unable to return home and without a valid passport. Didn’t Tom Hanks do a movie like this a while back?
Edward Snowden has arrived in Moscow with Cuba one of his potential final destinations. He seems fated to wind up in Cuba regardless of what happens–Havana if he remains free or Gitmo if captured.
Update: Snowden has applied for asylum in Ecuador.
In related news, David Gregory asked Glenn Greenwald this question: “To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn’t you, Mr. Greenwald, be charged with a crime?” Our “liberal” media at work.
Greenwald tweets: “Who needs the government to try to criminalize journalism when you have David Gregory to do it?”
Barack Obama has responded to some of the civil liberties concerns raised recently in an interview with Charlie Rose. He did provided two proposals to respond to the questions raised about the surveillance programs. Here is a partial transcript via Buzzfeed:
Barack Obama: Well, in the end, and what I’ve said, and I continue to believe, is that we don’t have to sacrifice our freedom in order to achieve security. That’s a false choice. That doesn’t mean that there are not tradeoffs involved in any given program, in any given action that we take. So all of us make a decision that we go through a whole bunch of security at airports, which when we were growing up that wasn’t the case…. And so that’s a tradeoff we make, the same way we make a tradeoff about drunk driving. We say, “Occasionally there are going to be checkpoints. They may be intrusive.” To say there’s a tradeoff doesn’t mean somehow that we’ve abandoned freedom. I don’t think anybody says we’re no longer free because we have checkpoints at airports.
Charlie Rose: But there is a balance here.
Barack Obama: But there is a balance, so I’m going to get to your — get to your question. The way I view it, my job is both to protect the American people and to protect the American way of life, which includes our privacy. And so every program that we engage in, what I’ve said is “Let’s examine and make sure that we’re making the right tradeoffs.” Now, with respect to the NSA, a government agency that has been in the intelligence gathering business for a very long time —
Charlie Rose: Bigger and better than everybody else.
Barack Obama: Bigger and better than everybody else, and we should take pride in that because they’re extraordinary professionals; they are dedicated to keeping the American people safe. What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls, and the NSA cannot target your emails … and have not. They cannot and have not, by law and by rule, and unless they — and usually it wouldn’t be “they,” it’d be the FBI — go to a court, and obtain a warrant, and seek probable cause, the same way it’s always been, the same way when we were growing up and we were watching movies, you want to go set up a wiretap, you got to go to a judge, show probable cause….
So point number one, if you’re a U.S. person, then NSA is not listening to your phone calls and it’s not targeting your emails unless it’s getting an individualized court order. That’s the existing rule. There are two programs that were revealed by Mr. Snowden, allegedly, since there’s a criminal investigation taking place, and they caused all the ruckus. Program number one, called the 2015 Program, what that does is it gets data from the service providers like a Verizon in bulk, and basically you have call pairs. You have my telephone number connecting with your telephone number. There are no names. There is no content in that database. All it is, is the number pairs, when those calls took place, how long they took place. So that database is sitting there. Now, if the NSA through some other sources, maybe through the FBI, maybe through a tip that went to the CIA, maybe through the NYPD. Get a number that where there’s a reasonable, articulable suspicion that this might involve foreign terrorist activity related to Al-Qaeda and some other international terrorist actors. Then, what the NSA can do is it can query that database to see did any of the — did this number pop up? Did they make any other calls? And if they did, those calls will be spit out. A report will be produced. It will be turned over to the FBI. At no point is any content revealed because there’s no content that —
Charlie Rose: So I hear you saying, I have no problem with what NSA has been doing.
Barack Obama: Well, let me — let me finish, because I don’t. So, what happens is that the FBI — if, in fact, it now wants to get content; if, in fact, it wants to start tapping that phone — it’s got to go to the FISA court with probable cause and ask for a warrant.
Charlie Rose: But has FISA court turned down any request?
Barack Obama: The — because — the — first of all, Charlie, the number of requests are surprisingly small… number one. Number two, folks don’t go with a query unless they’ve got a pretty good suspicion.
Charlie Rose: Should this be transparent in some way?
Barack Obama: It is transparent. That’s why we set up the FISA court…. The whole point of my concern, before I was president — because some people say, “Well, you know, Obama was this raving liberal before. Now he’s, you know, Dick Cheney.” Dick Cheney sometimes says, “Yeah, you know? He took it all lock, stock, and barrel.” My concern has always been not that we shouldn’t do intelligence gathering to prevent terrorism, but rather are we setting up a system of checks and balances? So, on this telephone program, you’ve got a federal court with independent federal judges overseeing the entire program. And you’ve got Congress overseeing the program, not just the intelligence committee and not just the judiciary committee — but all of Congress had available to it before the last reauthorization exactly how this program works.
Now, one last point I want to make, because what you’ll hear is people say, “Okay, we have no evidence that it has been abused so far.” And they say, “Let’s even grant that Obama’s not abusing it, that all these processes — DOJ is examining it. It’s being renewed periodically, et cetera — the very fact that there is all this data in bulk, it has the enormous potential for abuse,” because they’ll say, you know, “You can — when you start looking at metadata, even if you don’t know the names, you can match it up, if there’s a call to an oncologist, and there’s a call to a lawyer, and — you can pair that up and figure out maybe this person’s dying, and they’re writing their will, and you can yield all this information.” All of that is true. Except for the fact that for the government, under the program right now, to do that, it would be illegal. We would not be allowed to do that.
Charlie Rose: So, what are you going to change? Are you going to issue any kind of instructions to the Director of National Intelligence, Mr. Clapper, and say, “I want you to change it at least in this way”?
Barack Obama: Here’s what we need to do. But before I say that — and I know that we’re running out of time, but I want to make sure I get very clear on this. Because there has been a lot of mis-information out there. There is a second program called the 702 program. And what that does is that does not apply to any U.S. person. Has to be a foreign entity. It can only be narrowly related to counter-terrorism, weapons proliferation, cyber hacking or attacks, and a select number of identifiers — phone numbers, emails, et cetera. Those — and the process has all been approved by the courts — you can send to providers — the Yahoos or the Googles, what have you. And in the same way that you present essentially a warrant. And what will happen then is that you there can obtain content. But again, that does not apply to U.S. persons. And it’s only in these very narrow bands. So, you asked, what should we do? …What I’ve said is — is that what is a legitimate concern — a legitimate critique — is that because these are classified programs — even though we have all these systems of checks and balances, Congress is overseeing it, federal courts are overseeing it — despite all that, the public may not fully know. And that can make the public kind of nervous, right? Because they say, “Well, Obama says it’s okay — or Congress says it’s okay. I don’t know who this judge is. I’m nervous about it.” What I’ve asked the intelligence community to do is see how much of this we can declassify without further compromising the program, number one. And they are in that process of doing so now so that everything that I’m describing to you today, people, the public, newspapers, etc., can look at because frankly, if people are making judgments just based on these slides that have been leaked, they’re not getting the complete story.
Number two. I’ve stood up a privacy and civil liberties oversight board, made up of independent citizens including some fierce civil libertarians. I’ll be meeting with them. And what I want to do is to set up and structure a national conversation, not only about these two programs, but also the general problem of data, big data sets, because this is not going to be restricted to government entities.
Charlie Rose: Let me just ask you this. If someone leaks all this information about NSA surveillance, as Mr. Snowden did…. Did it cause national security damage to the United States, and therefore, should he be prosecuted?
Barack Obama: I’m not going to comment on prosecution…. The case has been referred to the DOJ for criminal investigation… and possible extradition. I will leave it up to them to answer those questions.
Obama Also Cited a Prosecution in Defense of the Programs
This defense has been widely dismissed:
The one thing people should understand about all these programs though is they have disrupted plots, not just here in the United States but overseas as well. And, you know, you’ve got a guy like Najibullah Zazi, who was driving cross country trying to blow up a New York subway system. Now, we might have caught him some other way. We might have disrupted it because a New York cop saw he was suspicious. Maybe he turned out to be incompetent and the bomb didn’t go off. But at the margins we are increasing our chances of preventing a catastrophe like that through these programs. And then the question becomes, “Can we trust all the systems government enough as long as they’re checking each other that our privacy is not being abused, that we are able to prevent some of the tragedies that unfortunately there are people out there who are going to continue to try to — try to strike against us.
Obama’s two proposals, declassifying some of the information so that the public can better evaluate the surveillance programs and setting up a privacy and civil liberties advisory board, are steps in the right direction. We will need to see how much is really declassified and how effective this board turns out to be. While the system has not been as transparent as Obama suggests in this interview, the system has been more transparent under Obama than under George Bush.
I am not reassured by his response to the question on the FISA courts when Obama responded, “the number of requests are surprisingly small… number one. Number two, folks don’t go with a query unless they’ve got a pretty good suspicion.” The number of requests would be expected to be lower when such massive amounts of data are being requested in a single request. Requesting all phone records, even if only metadata, is not indicative of a query with a good suspicion.
I do consider it a point in Obama’s favor that he is not commenting on prosecution of Snowden other than referring it to the Department of Justice. This is far preferable to people like John Boehner, Dick Cheney, and even Diane Feinstein calling him a traitor. I am not very worried about abuses occurring under Barack Obama (not that we can be certain they haven’t occurred). I am more concerned that we are building a infrastructure for a police state which could be misused by people like Dick Cheney or John Boehner
General Michael Hayden, director of the NSA under George Bush, is happy to see that upon taking office Barack Obama has continued many of the surveillance programs initiated under George Bush. There are some differences. Obama has utilized the FISA Courts while surveillance under Bush was often outside the law. Hayden also states that the programs have been more transparent under Obama:
Gen. Michael Hayden, NSA director under former president George W. Bush, defended the legality of the agency’s massive phone and internet data surveillance programs on Wednesday, calling them important and suggesting that opponents didn’t understand what was actually going on.
Speaking with CNN’s Jake Tapper, Hayden downplayed criticism of the data collection effort as governmental overreach by claiming President Barack Obama’s administration had actually been more forthcoming than Bush’s on the issue.
“Frankly, the Obama administration was more transparent about this effort than we were in the Bush administration,” he said. “I mean, they made this metadata collection activity available to all the members of Congress. Not just all the members of the intelligence committees.”
Some lawmakers have admitted that they were aware of the NSA’s activities before the string of reports last week, which has led many to defend the programs as vital and standard procedures. Others have spoken outagainst them in the wake of the recent disclosures, arguing that the reports held details that they hadn’t been told about and wouldn’t have supported.
This does help demonstrate the hypocrisy of conservatives who supported the surveillance under Bush but now attack Obama. What’s their complaint–that Obama is allowing judicial oversight and is more transparent? Somehow this doesn’t seem to be what they are saying.
Unfortunately, even if Obama is acting more within the law, and with greater transparency, he continues to allow a massive accumulation of data which many question whether is Constitutional and which carries risks to liberty. Obama has also shown an understanding which George Bush lacked of the need to consider issues of security versus liberty, which will hopefully lead to a change in policy.
