Orwellian and Kafkaesque Aspects Of NSA Surveillance

The revelations regarding NSA surveillance has led to a boom in sales of 1984. Further exposure to Orwell’s work is one good outcome of the recent leaks, showing the ultimate results of a totalitarian surveillance state. As I’ve pointed out before, to actually compare our current situation to 1984 is a tremendous act of hyperbole. The problem is not that we are experiencing anything as severe as the society portrayed in 1984 but that the NSA surveillance program is one step on the road towards developing the infrastructure which might make such a society possible. Those who run the intelligence programs should remain servants of the people in a free society, not masters. While we expect accept a certain degree of secrecy, this does not justify outright lies by leaders of the intelligence community such as James Clapper,director of national intelligence, in speeches and testimony before Congress.

Orwell provides many things to think about beyond surveillance. Consider his concepts of “War is Peace, ” “Freedom is Slavery,” or facts disappearing down the memory hole. The NSA surveillance program poses a serious threat to liberty, but to keep things in perspective, there are far more Orwellian threats to liberty which we face, such as Fox News. Promoting such propaganda as news is quite hazardous to a free society where we want self-rule by people who vote based upon facts, while living in a free society prevents any action against such anti-freedom propagandists beyond aggressively exposing their tactics. To the right wing, “Ignorance is Strength.”

1984 is the obvious classic to read when considering the risks of slipping into totalitarianism. There are many others worth reading, such as Sinclair Lewis’ It Can’t Happen Here. There might also be novels which are more pertinent to what we are facing. Yesterday Rebecca Rosen quoted Daniel J. Solove in describing why another novel might be more applicable:

I suggested a different metaphor to capture the problems: Franz Kafka’s The Trial, which depicts a bureaucracy with inscrutable purposes that uses people’s information to make important decisions about them, yet denies the people the ability to participate in how their information is used. The problems captured by the Kafka metaphor are of a different sort than the problems caused by surveillance. They often do not result in inhibition or chilling. Instead, they are problems of information processing–the storage, use, or analysis of data–rather than information collection. They affect the power relationships between people and the institutions of the modern state. They not only frustrate the individual by creating a sense of helplessness and powerlessness, but they also affect social structure by altering the kind of relationships people have with the institutions that make important decisions about their lives.

The surveillance can certainly be called Orwellian. The laws which try to hide the very existence of surveillance are more Kafkaesque.

This debate over security versus privacy and liberty has been needed since September 12, 2001 but I suspect that most of the country was not ready for it until now. The first poll taken on this subject by Pew showed that 56 percent supported the NSA program of tracking phone records. Gallup now has  slightly more recent poll out, which includes the revelations regarding both telephone data and the more recently revealed inclusion of internet communications. Gallup found that fifty-three percent disapprove and only thirty-seven percent approve of these programs.

Barack Obama has been quiet on this subject, frustrating many of his supporters. I hope that this means that another debate is going on, between the views of candidate Obama and those of President Obama. We have seen Obama’s views evolve on other issues, such as support for same sex marriage. Obama discussed the issue of privacy rights versus security before the recent leaks. I am hoping that the current public debate prompts further evolution on this issue, or devolution back to the views he expressed as a candidate.

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Let The Debate Commence: Calls For End To NSA Surveillance

Eighty-six civil liberties organizations and internet companies have called for an end to the NSA surveillance in the following letter:

Dear Members of Congress,

We write to express our concern about recent reports published in the Guardian and the Washington Post, and acknowledged by the Obama Administration, which reveal secret spying by the National Security Agency (NSA) on phone records and Internet activity of people in the United States.

The Washington Post and the Guardian recently published reports based on information provided by a career intelligence officer showing how the NSA and the FBI are gaining broad access to data collected by nine of the leading U.S. Internet companies and sharing this information with foreign governments. As reported, the U.S. government is extracting audio, video, photographs, e-mails, documents, and connection logs that enable analysts to track a person’s movements and contacts over time. As a result, the contents of communications of people both abroad and in the U.S. can be swept in without any suspicion of crime or association with a terrorist organization.

Leaked reports also published by the Guardian and confirmed by the Administration reveal that the NSA is also abusing a controversial section of the PATRIOT Act to collect the call records of millions of Verizon customers. The data collected by the NSA includes every call made, the time of the call, the duration of the call, and other “identifying information” for millions of Verizon customers, including entirely domestic calls, regardless of whether those customers have ever been suspected of a crime. The Wall Street Journal has reported that other major carriers, including AT&T and Sprint, are subject to similar secret orders.

This type of blanket data collection by the government strikes at bedrock American values of freedom and privacy. This dragnet surveillance violates the First and Fourth Amendments of the U.S. Constitution, which protect citizens’ right to speak and associate anonymously and guard against unreasonable searches and seizures that protect their right to privacy.

We are calling on Congress to take immediate action to halt this surveillance and provide a full public accounting of the NSA’s and the FBI’s data collection programs. We call on Congress to immediately and publicly:

1. Enact reform this Congress to Section 215 of the USA PATRIOT Act, the state secrets privilege, and the FISA Amendments Act to make clear that blanket surveillance of the Internet activity and phone records of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court;

2. Create a special committee to investigate, report, and reveal to the public the extent of this domestic spying. This committee should create specific recommendations for legal and regulatory reform to end unconstitutional surveillance;

3. Hold accountable those public officials who are found to be responsible for this unconstitutional surveillance.

Thank you for your attention to this matter.

Sincerely,

Access

Advocacy for Principled Action in Government

American Booksellers Foundation for Free Expression

American Civil Liberties Union

American Civil Liberties Union of California

American Library Association

Amicus

Association of Research Libraries

Bill of Rights Defense Committee

BoingBoing

Breadpig

Calyx Institute

Canvas

Center for Democracy and Technology

Center for Digital Democracy

Center for Financial Privacy and Human Rights

Center for Media and Democracy

Center for Media Justice

Competitive Enterprise Institute

Consumer Action

Consumer Watchdog

CorpWatch

CREDO Mobile

Cyber Privacy Project

Daily Kos

Defending Dissent Foundation

Demand Progress

Detroit Digital Justice Coalition

Digital Fourth

Downsize DC

DuckDuckGo

Electronic Frontier Foundation

Entertainment Consumers Association

Fight for the Future

Floor64

Foundation for Innovation and Internet Freedom

4Chan

Free Press

Free Software Foundation

Freedom of the Press Foundation

FreedomWorks

Friends of Privacy USA

Get FISA Right

Government Accountability Project

Greenpeace USA

Institute of Popular Education of Southern California (IDEPSCA)

Internet Archive

isen.com, LLC

Knowledge Ecology International (KEI)

Law Life Culture

Liberty Coalition

May First/People Link

Media Alliance

Media Mobilizing Project, Philadelphia

Mozilla

Namecheap

National Coalition Against Censorship

New Sanctuary Coalition of NYC

Open Technology Institute

OpenMedia.org

Participatory Politics Foundation

Patient Privacy Rights

People for the American Way

Personal Democracy Media

PolitiHacks

Privacy and Access Council of Canada

Public Interest Advocacy Centre (Ottawa, Canada)

Public Knowledge

Privacy Activism

Privacy Camp

Privacy Rights Clearinghouse

Privacy Times

reddit

Represent.us

Rights Working Group

Rocky Mountain Civil Liberties Association

RootsAction.org

Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic

Sunlight Foundation

Taxpayers Protection Alliance

TechFreedom

The AIDS Policy Project, Philadelphia

TURN-The Utility Reform Network

Urbana-Champaign Independent Media Center

William C. Velasquez Institute (WCVI)

World Wide Web Foundation

A bipartisan group of Senators introduced a bill to declassify FISA Court decisions:

Today, Oregon’s Senator Jeff Merkley and Senator Mike Lee (R-UT), accompanied by Senators Patrick Leahy (D-VT), Dean Heller (R-NV), Mark Begich (D-AK), Al Franken (D-MN), Jon Tester (D-MT), and Ron Wyden (D-OR), introduced a bill that would put an end to the “secret law” governing controversial government surveillance programs.  This bill would require the Attorney General to declassify significant Foreign Intelligence Surveillance Court (FISC) opinions, allowing Americans to know how broad of a legal authority the government is claiming to spy on Americans under the PATRIOT Act and Foreign Intelligence Surveillance Act.

“Americans deserve to know how much information about their private communications the government believes it’s allowed to take under the law,” Merkley said. “There is plenty of room to have this debate without compromising our surveillance sources or methods or tipping our hand to our enemies.  We can’t have a serious debate about how much surveillance of Americans’ communications should be permitted without ending secret law.”

“This bipartisan amendment establishes a cautious and reasonable process for declassification consistent with the rule of law,” Lee said. “It will help ensure that the government makes sensitive decisions related to surveillance by applying legal standards that are known to the public. Particularly where our civil liberties are at stake, we must demand no less of our government.”

meanwhile takes the opposite viewpoint, and calls Edward Snowden a traitor. Diane Feinstein, Chair of the Senate Intelligence Committee agrees, but then she also agreed with George Bush on invading Iraq and has been a strong supporter of the Patriot Act.

At least we are now getting the debate over security versus liberty which both Edward Snowden and Barack Obama want.

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Building The Infrastructure For A Police State

The government has accumulated and is storing massive amounts of data on Americans but is keeping this information secure and promises not to use this to spy on individual Americans not connected to terrorism. What could possibly go wrong?

Yeah, obviously that is a sarcastic rhetorical question. One good answer to this question is found in an op-ed by Daniel Ellsberg, who knows a bit about whistle blowers:

Obviously, the United States is not now a police state. But given the extent of this invasion of people’s privacy, we do have the full electronic and legislative infrastructure of such a state. If, for instance, there was now a war that led to a large-scale anti-war movement – like the one we had against the war in Vietnam – or, more likely, if we suffered one more attack on the scale of 9/11, I fear for our democracy. These powers are extremely dangerous.

Unfortunately this is run under the title Edward Snowden: saving us from the United Stasi of America. Yet another example of hyperbole seen on this issue, like another example I gave here. Fortunately Ellsberg acknowledges that this is not a police state, and is warning about a potential threat as opposed to exaggerating about the current situation. I certainly don’t see any sign that anyone fears discussing this issue, as would be the case in a true police state. On the other hand, would anyone trust John McCain, who has never seen a war he didn’t like. to have this information about people who might protest whatever wars he got us into if elected? Would you trust Mitt Romney, who seems to be devoid of any principles? In a two party system, who knows what type of Republican might manage to win an election in the near future (and not all Democrats can be trusted either).

There are a number of answers I’m hearing which aren’t very good, ranging from paranoia to the opposite reaction of denying the problem. I have received an answer that “Bush did it.” Is George W. Bush the standard by what is right? Yes, as I pointed out last week, this is an ongoing problem, not a new issue, and not a question of whether you like Bush or Obama better. Look at the issue independent of political personalities. Besides, if you want to blame politicians, as Steve Benen pointed out you can also blame Congress:

With this in mind, Jonathan Bernstein asked a compelling question over the weekend and provided a persuasive answer: “If you don’t like the revelations this week about what the NSA has been up to regarding your phone and Internet data, whom should you blame?”

There is, to be sure, plenty of blame to go around. The NSA has pushed the limits; federal courts approved the surveillance programs; George W. Bush got this ball rolling; President Obama kept this ball rolling; and telecoms have clearly participated in the efforts.

“But save plenty of your blame — perhaps most of your blame — for Congress.

“Did you notice the word I used in each of the other cases? The key word: law. As far as we know, everything that happened here was fully within the law. So if something was allowed that shouldn’t have been allowed, the problem is, in the first place, the laws. And that means Congress.”

It’s worth pausing to note that there is some debate about the legality of the exposed surveillance programs. Based on what we know at this point, most of the legal analyses I’ve seen suggest the NSA’s actions were within the law, though we’re still dealing with an incomplete picture, and there are certainly some legal experts who question whether the NSA crossed legal lines…

In theory, Obama could have chosen a different path after taking office in 2009, but the historical pattern is clear: if Congress gives a war-time president vast powers related to national security, that president is going to use those powers. The wiser course of action would be the legislative branch acting to keep those powers in check — limiting how far a White House can go — but our contemporary Congress has chosen to do the opposite.

This is, by the way, a bipartisan phenomenon — lawmakers in both parties gave Bush expansive authority in this area, and lawmakers in both parties agreed to keep these powers in Obama’s hands. What’s more, they not only passed laws these measures into law, they chose not to do much in the way of oversight as the surveillance programs grew.

We cannot expect any president to voluntarily give up powers present upon taking office, but at least there have been favorable signs that Obama is starting to ask the right questions. Under normal circumstances we need Congress to do their job. Unfortunately many Democrats were afraid to do this under Bush, and the Republicans are preoccupied by matters which are more important to them, from restricting reproductive rights to voting to repeal Obamacare thirty-seven times.  We also need the courts to do more than rubber stamp requests. Even under the best of circumstances, we cannot count on government to reveal its sins. If not for whistle blowers, we would not know much of what we know about Viet Nam, mistreatment of prisoners at places such as Abu Ghraib, CIA rendition, and the use of drones.

I’m seeing far too many cases of liberals playing down this issue, seeing it as an attack on Obama, when most opposed these provisions of the Patriot Act under George Bush. I’m also seeing some making this about Glenn Greenwald (who says more revelations are coming). I agree that at times he has gone overboard in attacks on Obama, but this is about the facts he is reporting, not his personal views.  Meanwhile the right is divided between those want to attack Obama and big government, contradicting their previous support for big government under George Bush, and those who are such big proponents of an authoritarian surveillance state that they will even overlook the fact, just this one time, that Obama is involved.

Another poor response I’m seeing is a comparison to all the information we give up when we go shopping, or post on Facebook. There is absolutely no comparison to information which is given voluntarily and to a retail store as opposed to information being secretly obtained by a government. When Google was accused of possessing too much information they initiated action to notify users of the information they have and offer ways to opt out. This might not be completely satisfying, but it is far preferable to a government system where it is illegal to even discuss requests for information.

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NSA Whistle Blower Speaks Out

The former CIA employee who released the NSA surveillance to The Guardian has gone public with his actions and has gone to Hong Kong (which is rather ironic considering what I wrote about comparisons to China yesterday).

The individual responsible for one of the most significant leaks in US political history is Edward Snowden, a 29-year-old former technical assistant for the CIA and current employee of the defence contractor Booz Allen Hamilton. Snowden has been working at the National Security Agency for the last four years as an employee of various outside contractors, including Booz Allen and Dell…

On May 20, he boarded a flight to Hong Kong, where he has remained ever since. He chose the city because “they have a spirited commitment to free speech and the right of political dissent”, and because he believed that it was one of the few places in the world that both could and would resist the dictates of the US government.

In the three weeks since he arrived, he has been ensconced in a hotel room. “I’ve left the room maybe a total of three times during my entire stay,” he said. It is a plush hotel and, what with eating meals in his room too, he has run up big bills.

He is deeply worried about being spied on. He lines the door of his hotel room with pillows to prevent eavesdropping. He puts a large red hood over his head and laptop when entering his passwords to prevent any hidden cameras from detecting them.

Though that may sound like paranoia to some, Snowden has good reason for such fears. He worked in the US intelligence world for almost a decade. He knows that the biggest and most secretive surveillance organisation in America, the NSA, along with the most powerful government on the planet, is looking for him.

Since the disclosures began to emerge, he has watched television and monitored the internet, hearing all the threats and vows of prosecution emanating from Washington.

And he knows only too well the sophisticated technology available to them and how easy it will be for them to find him. The NSA police and other law enforcement officers have twice visited his home in Hawaii and already contacted his girlfriend, though he believes that may have been prompted by his absence from work, and not because of suspicions of any connection to the leaks.

“All my options are bad,” he said. The US could begin extradition proceedings against him, a potentially problematic, lengthy and unpredictable course for Washington. Or the Chinese government might whisk him away for questioning, viewing him as a useful source of information. Or he might end up being grabbed and bundled into a plane bound for US territory.

“Yes, I could be rendered by the CIA. I could have people come after me. Or any of the third-party partners. They work closely with a number of other nations. Or they could pay off the Triads. Any of their agents or assets,” he said.

“We have got a CIA station just up the road – the consulate here in Hong Kong – and I am sure they are going to be busy for the next week. And that is a concern I will live with for the rest of my life, however long that happens to be.”

The article also provides his arguments for why he released this information and information on his background.

An interview with Snowden has also been published. Much of the interview rehashes what we have already read and discusses the question of whistle blowing. Edward Snowden also discussed the CIA’s general attitude towards situations such as this and due process:

In Dulles UAL lounge listening to 4 US intel officials saying loudly leaker & reporter on #NSA stuff should be disappearedrecorded a bit

— Steve Clemons (@SCClemons) June 8, 2013

Q: Washington-based foreign affairs analyst Steve Clemons said he overheard at the capital’s Dulles airport four men discussing an intelligence conference they had just attended. Speaking about the leaks, one of them said, according to Clemons, that both the reporter and leaker should be “disappeared”. How do you feel about that?

A: “Someone responded to the story said ‘real spies do not speak like that’. Well, I am a spy and that is how they talk. Whenever we had a debate in the office on how to handle crimes, they do not defend due process – they defend decisive action. They say it is better to kick someone out of a plane than let these people have a day in court. It is an authoritarian mindset in general.”

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Serious Concern Versus Paranoia

Over the last few days Glenn Greenwald has posted so much information on NSA surveillance abilities that I almost expect the next revelation to be that the machine on Person of Interest is real. There are certainly many things to be concerned about in the recent news related to privacy rights and civil liberties. The problem is exacerbated by the extreme secrecy surrounding this intelligence gathering making it impossible to have the type of informed debate which is necessary in a free society.

On the other hand, there has also been a considerable degree of paranoia and unwarranted hyperbole this week. With the NPR stations limited to Prarie Home Companion on my drive home this evening, I turned to a left talk radio station I have rarely listened to before on XM which was making a fallacious argument that the United States has become like China. Earlier today I discussed this topic on Facebook, posting a link I received via email to an article entitled Beyond Orwellian': Outrage Follows Revelations of Vast Domestic Spying Program.

This is just ridiculous hyperbole. It’s not that I disagree with the specific criticism, but “Beyond Orwellian” is as absurd as the conservative sites trying to compare the IRS scandal to Watergate. Even if wrong, what we are seeing now is not at all close to either Watergate or 1984. (I won’t even get into Rush Limbaugh’s attempt to compare imagined crimes by Obama to the Holocaust).

When you combine the urge for provocative titles to get people to read with the unfortunate fact that some on the left are every bit as nuts as those on the right, reading through blog post titles in email or RSS feeds can make both look paranoid and crazy. Again, in the case of this specific linked article it wouldn’t be bad if they hadn’t used such hyperbole in the title. It is also possible that an editor and not the author added the title to attract attention.

There are problems being exposed but so far there is no evidence that the information has been misused. The people on the talk radio show I mentioned above speculated that people might disappear because they read the Koran. There is zero evidence that the information being obtained has been used for such a purpose.  However, it is conceivable that there are abuses which are unknown due to the high degree of secrecy surrounding these programs. The risk of abuses is also much higher when people are acting in secret. We know that power does corrupt. We should change the law due to the potential dangers to privacy rights and liberty, and far more meaningful Congressional and judicial oversight appears needed, but that does not mean we are suffering from Orwellian tyranny.

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NSA Surveillance: Not Really News To Those Paying Attention, Not Illegal, But Still A Matter of Concern

The major topic of discussion today has clearly been the data mining of cell phone records on numerous blogs and news sites. On the one hand, I share in the opposition to the concept of a government program which we cannot even evaluate because of the secrecy surrounding it. On the other hand, did anyone really think that their cell phone call records were secret items which the government couldn’t review with ease? This is exactly the type of thing which many of us blogged about during the Bush years. From May 11, 2006 USA Today reported:

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren’t suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.

“It’s the largest database ever assembled in the world,” said one person, who, like the others who agreed to talk about the NSA’s activities, declined to be identified by name or affiliation. The agency’s goal is “to create a database of every call ever made” within the nation’s borders, this person added.

There’s one difference between the program under Obama compare to Bush. Obama is using the FISA courts and following the law, while Bush did not:

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

“This is really a sea change,” said a former senior official who specializes in national security law. “It’s almost a mainstay of this country that the N.S.A. only does foreign searches.”

Of course being legal does not mean it is right. While I do prefer to see judicial oversight, there is a huge difference between true oversight and a rubber stamp.

In theory there is also Congressional oversight. The top Senators on the Intelligence Committee say this is to protect America:

The top two senators on the Intelligence Committee on Thursday defended the National Security Agency’s collection of Americans’ phone records after it was reported in The Guardian.

“It is lawful. It has been briefed to Congress,” Senate Intelligence Chair Dianne Feinstein (D-CA) told reporters at an impromptu news conference in the Capitol. “This is just meta data. There is no content involved. In other words, no content of a communication. … The records can only be accessed under heightened standards.”

“I read intelligence carefully. And I know that people are trying to get to us,” Feinstein said. “This is the reason we keep TSA doing what it’s doing. This the reason the FBI now has 10,000 people doing intelligence on counter-terrorism. This is the reason for the national counter-terrorism center that’s been set up in the time we’ve been active.”

“And it’s to ferret this out before it happens,” she said. “It’s called protecting America.”

Senate Intelligence Vice Chair Saxby Chambliss (R-GA) backed up Feinstein, saying, “This is nothing particularly new. This has been going on for seven years under the auspices of the FISA authority, and every member of the United States Senate has been advised of this.”

I guess we can discuss this in thirty years when the information is declassified.

Personally I have no problem with the government seeking a warrant to obtain phone records (and more) regarding individual who they have reasonable cause to suspect of plotting acts of terrorism. Maybe there is even a chance that having these records did put them on the trail of a potential terrorist who they otherwise did not suspect. In a free society it is necessary to place limits on what information the government can obtain and it is necessary to have some degree of transparency about how the information is used, even if we must give up having one-hundred percent security to maintain liberty.

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Obama Calls For An End To A Perpetual War on Terror And For Respect For Civil Liberties

I only heard portions of Barack Obama’s speech while driving to and from lunch today but did like what I heard. It was clear that whether or not I wound up agreeing with everything, contrary to claims from portions of both the left and right, Barack Obama is no Richard Nixon or George Bush. For now I am relying on the prepared text, which lacks the portion where I hear Obama did an excellent job of responding to the criticism of a heckler. While we could question if some of this is being said later than desired, there was much in today’s speech which I did like, such as addressing this early in the speech: “I believe we compromised our basic values – by using torture to interrogate our enemies, and detaining individuals in a way that ran counter to the rule of law.”

Obama discussed our triumphs in fighting al Qaeda , and then its cost:

These questions matter to every American. For over the last decade, our nation has spent well over a trillion dollars on war, exploding our deficits and constraining our ability to nation build here at home. Our service-members and their families have sacrificed far more on our behalf. Nearly 7,000 Americans have made the ultimate sacrifice. Many more have left a part of themselves on the battlefield, or brought the shadows of battle back home. From our use of drones to the detention of terrorist suspects, the decisions we are making will define the type of nation – and world – that we leave to our children.

So America is at a crossroads. We must define the nature and scope of this struggle, or else it will define us, mindful of James Madison’s warning that “No nation could preserve its freedom in the midst of continual warfare.” Neither I, nor any President, can promise the total defeat of terror. We will never erase the evil that lies in the hearts of some human beings, nor stamp out every danger to our open society. What we can do – what we must do – is dismantle networks that pose a direct danger, and make it less likely for new groups to gain a foothold, all while maintaining the freedoms and ideals that we defend. To define that strategy, we must make decisions based not on fear, but hard-earned wisdom. And that begins with understanding the threat we face.

He recognized that victories over terrorist groups often come from targeted efforts and police actions as opposed to the Bush/Cheney concept of a global war on terror:

Beyond Afghanistan, we must define our effort not as a boundless ‘global war on terror’ – but rather as a series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America. In many cases, this will involve partnerships with other countries. Thousands of Pakistani soldiers have lost their lives fighting extremists. In Yemen, we are supporting security forces that have reclaimed territory from AQAP. In Somalia, we helped a coalition of African nations push al Shabaab out of its strongholds. In Mali, we are providing military aid to a French-led intervention to push back al Qaeda in the Maghreb, and help the people of Mali reclaim their future.

Much of our best counter-terrorism cooperation results in the gathering and sharing of intelligence; the arrest and prosecution of terrorists. That’s how a Somali terrorist apprehended off the coast of Yemen is now in prison in New York. That’s how we worked with European allies to disrupt plots from Denmark to Germany to the United Kingdom. That’s how intelligence collected with Saudi Arabia helped us stop a cargo plane from being blown up over the Atlantic.

Obama called for greater oversight over the use of drones and targeted killing, and greater transparency:

This week, I authorized the declassification of this action, and the deaths of three other Americans in drone strikes, to facilitate transparency and debate on this issue, and to dismiss some of the more outlandish claims. For the record, I do not believe it would be constitutional for the government to target and kill any U.S. citizen – with a drone, or a shotgun – without due process. Nor should any President deploy armed drones over U.S. soil…

Going forward, I have asked my Administration to review proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress. Each option has virtues in theory, but poses difficulties in practice. For example, the establishment of a special court to evaluate and authorize lethal action has the benefit of bringing a third branch of government into the process, but raises serious constitutional issues about presidential and judicial authority. Another idea that’s been suggested – the establishment of an independent oversight board in the executive branch – avoids those problems, but may introduce a layer of bureaucracy into national-security decision-making, without inspiring additional public confidence in the process. Despite these challenges, I look forward to actively engaging Congress to explore these – and other – options for increased oversight.

I believe, however, that the use of force must be seen as part of a larger discussion about a comprehensive counter-terrorism strategy. Because for all the focus on the use of force, force alone cannot make us safe. We cannot use force everywhere that a radical ideology takes root; and in the absence of a strategy that reduces the well-spring of extremism, a perpetual war – through drones or Special Forces or troop deployments – will prove self-defeating, and alter our country in troubling ways.

He called for a media shield to protect journalists:

Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law. That is why I have called on Congress to pass a media shield law to guard against government over-reach. I have raised these issues with the Attorney General, who shares my concern. So he has agreed to review existing Department of Justice guidelines governing investigations that involve reporters, and will convene a group of media organizations to hear their concerns as part of that review. And I have directed the Attorney General to report back to me by July 12th.

While Republicans were leading us into a perpetual war, Obama realizes that, like all wars, this war must end:

The AUMF is now nearly twelve years old. The Afghan War is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That’s what history advises. That’s what our democracy demands.

He is addressing the continued detaining of prisoners at Guantánamo:

Today, I once again call on Congress to lift the restrictions on detainee transfers from GTMO. I have asked the Department of Defense to designate a site in the United States where we can hold military commissions. I am appointing a new, senior envoy at the State Department and Defense Department whose sole responsibility will be to achieve the transfer of detainees to third countries. I am lifting the moratorium on detainee transfers to Yemen, so we can review them on a case by case basis. To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries. Where appropriate, we will bring terrorists to justice in our courts and military justice system. And we will insist that judicial review be available for every detainee.

Even after we take these steps, one issue will remain: how to deal with those GTMO detainees who we know have participated in dangerous plots or attacks, but who cannot be prosecuted – for example because the evidence against them has been compromised or is inadmissible in a court of law. But once we commit to a process of closing GTMO, I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.

I know the politics are hard. But history will cast a harsh judgment on this aspect of our fight against terrorism, and those of us who fail to end it. Imagine a future – ten years from now, or twenty years from now – when the United States of America is still holding people who have been charged with no crime on a piece of land that is not a part of our country. Look at the current situation, where we are force-feeding detainees who are holding a hunger strike. Is that who we are? Is that something that our Founders foresaw? Is that the America we want to leave to our children?

The president does not micromanage every action by the United States government and, as Ed Kilgore and David Weigel pointed out, Obama did try to hold the Congressional Republicans for their actions:

One thing is fairly clear: the speech poses a challenge to congressional Republicans that may not be that easy for them to meet, distracted as they are and as divided as they tend to be on national security policy these days. As Slate’s Dave Weigel quickly noted, Obama four times shifted responsibility for current dilemmas at least partially to Congress: on drones (where he insisted the appropriate congressional committees have known about every single strike); on embassy security; on the 9/11-era legal regime that still governs anti-terrorist efforts; and on Gitmo (where Republicans have repeatedly thwarted effort to transfer detainees to U.S. prisons). But like critical reporters, Republicans, other than neocons who want GWOT not only to be maintained but intensified, will probably tear off tasty chunks of the speech and masticate them noisily, or just dismiss it all and get back onto the crazy train of Scandalmania ‘13.

David Corn sees this as Obama taking the middle ground:

Not shockingly, Obama is attempting to find middle ground, where there is more oversight and more restraint regarding activities that pose serious civil liberties and policy challenges. The McCainiacs of the world are likely to howl about any effort to place the effort to counter terrorism into a more balanced perspective. The civil libertarians will scoff at half measures. But Obama, at the least, is showing that he does ponder these difficult issues in a deliberative manner and is still attempting to steer the nation into a post-9/11 period. That journey, though, may be a long one.

He is also looking for a middle ground which considers our security needs in the era of international terrorism along with the need to respect civil liberties and the principles which the nation was founded upon. He might not get it completely right, and the answers are not always entirely clear but, contrary to Bush and Cheney, he is considering the key issues.

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Republican Hysteria Over Pseudo-Scandals Prevents Consideration Of Real Problems

Scandals cartoon

One consequence of a dysfunctional opposition party which is more concerned with scoring political points than the good of the country is that we have a combination of attacks over fabricated scandals while ignoring real problems. The Republicans have concentrated on Benghazi, even resorting to distorting evidence, and the IRS, which looks far more like low level bureaucrats taking short cuts than any Nixonian abuse of power coming from the White House, despite the Republican attempts to move the goal posts.

One problem with trying to turn real problems into a political scandal is that the actual problems are not addressed. We need to look at issues such as how organizations are evaluated for favorable tax status and how foreign embassies are defended, not twist the facts to blame Obama. Strangely, conservatives who speak out (sometimes correctly) about the size of our bureaucracy fail to understand that the president does not personally make every decision. Republicans who ignored actual abuses of power under George Bush see everything which might go wrong as evidence of evil intent on the part of the current president.

There is a report today which provides hope that some Republican staffers, at least, are looking at trying to learn from the Benghazi attack:

The inquiry led by the House Oversight and Government Reform Committee into the slaying of four Americans at the U.S. consulate in Benghazi, Libya, last year has been attention-grabbing, but some senior GOP aides are worried that the partisan overtones are diverting Congress from identifying and addressing the real lessons learned from the attack.

In particular, these aides say key staffers have been overly consumed with chasing down or addressing inaccurate or unfounded accusations emerging from the inquiry.

“We have got to get past that and figure out what are we going to do going forward,” a GOP aide stressed. “Some of the accusations, I mean you wouldn’t believe some of this stuff. It’s just — I mean, you’ve got to be on Mars to come up with some of this stuff.”

In this charged political environment, where some on Capitol Hill have accused the president of a possible cover-up related to the attack just weeks before the 2012 presidential election, defense policy Republicans are trying to refocus attention on core issues and create some good out of the tragedy.

Hopeful, but I fear that the Republicans will still prefer to mislead their base in order to motivate them to turn out and contribute money as opposed to turning to reality-based governing.

One sign of business as usual among Republicans is that Darryl Issa, who pursues his job with the vigor and lack of integrity of Joseph McCarthy, is now attacking IRS inspector general J. Russell George.

Another problem is that real questions involving civil liberties are ignored, primarily as the Republicans would support greater violations. The Obama administration’s actions towards the AP raises First Amendment concerns even if this was done within the law and there are extenuating factors which also must be considered.While conservatives are generally only concerned with abuses which target conservatives, and which often only exist in their imagination, liberals have been non-partisan regarding both the IRS and the media. Liberals were no less likely to be concerned in principle that the target was from Fox with the naming of a  correspondent as a possible “co-conspirator” in an investigation of a news leak . The New York Times concluded their editorial on the matter by writing:

Obama administration officials often talk about the balance between protecting secrets and protecting the constitutional rights of a free press. Accusing a reporter of being a “co-conspirator,” on top of other zealous and secretive investigations, shows a heavy tilt toward secrecy and insufficient concern about a free press.

Along with excessive secrecy, in contrast to campaign promises to have the most open and transparent government in history, the use of drone strikes has led to much of the criticism of Obama from the left. There is some good news on this today, also from The New York Times:

President Obama embraced drone strikes in his first term, and the targeted killing of suspected terrorists has come to define his presidency.

But lost in the contentious debate over the legality, morality and effectiveness of a novel weapon is the fact that the number of strikes has actually been in decline. Strikes in Pakistan peaked in 2010 and have fallen sharply since then; their pace in Yemen has slowed to half of last year’s rate; and no strike has been reported in Somalia for more than a year.

We cannot rely on Congressional over-site as the Republicans would be more likely to promote greater use of drones and show far less concern over issues of either legality or morality. There have been mixed signs that the Obama administration has been moving towards establishing greater consideration of institutionalizing changes in warfare with development of due process and ideally judicial over-site. Hopefully this reduction in the use of drones indicates a greater consideration of the consequences of this policy.

 

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Conflicting Principles In Searching For Leak On Al Qaeda Informant

I’ve had several posts recently about two of the “scandals” surrounding the Obama administration. In one case, Benghazi, there is no real scandal–just another case of Republicans distorting the facts. In the case of the IRS, we have the rare case of Republicans being right about wrong-doing, but wrong in trying to tie this to Obama. The subpoena of AP records regarding sources on a story about a planned terrorist attack is more difficult to characterize. In this case, Republicans aren’t attacking Obama because they have no qualms about infringing upon First Amendment liberties, but many liberals are concerned.

Jack Shafer of Reuters has an excellent review of this case and his entire post should be read. He began:

Journalists gasp and growl whenever prosecutors issue lawful subpoenas ordering them to divulge their confidential sources or to turn over potential evidence, such as notes, video outtakes or other records. It’s an attack on the First Amendment, It’s an attack on the First Amendment, It’s an attack on the First Amendment, journalists and their lawyers chant. Those chants were heard this week, as it was revealed that Department of Justice prosecutors had seized two months’ worth of records from 20 office, home and cell phone lines used by Associated Press journalists in their investigation into the Yemen underwear-bomber leaks.

First Amendment radicals — I count myself among them — resist any and all such intrusions: You can’t very well have a free press if every unpublished act of journalism can be co-opted by cops, prosecutors and defense attorneys. First Amendment attorney Floyd Abrams speaks for most journalists when he denounces the “breathtaking scope” of the AP subpoenas. But the press’s reflexive protests can prevent it from seeing the story in full, which I think is the case in the current leaks investigation.

See the full article for the specifics, but the gist of this is that the Obama administration’s concern here was not with preventing the press from publishing their reports but uncovering a leak. Also, this is not a case of someone leaking information which we necessarily wanted to get out, but the fact that an al Qaeda plot to bomb an airplane bound for the United States was stopped due to having an informant  recruited by British intelligence inside of al Qaeda.

Shafer concluded:

To begin with, the perpetrators of a successful double-agent operation against al Qaeda in the Arabian Peninsula would not want to brag about their coup for years. Presumably, al Qaeda in the Arabian Peninsula will now use the press reports to walk the dog back to determine whose misplaced trust allowed the agent to penetrate it. That will make the next operation more difficult. Other intelligence operations — and we can assume they are up and running — may also become compromised as the press reports give al Qaeda in the Arabian Peninsula new clues.

Likewise, the next time the CIA or foreign intelligence agency tries to recruit a double agent, the candidate will judge his handlers wretched secret keepers, regard the assignment a death mission and seek employment elsewhere.

Last, the leaks of information — including those from the lips of Brennan, Clarke and King — signal to potential allies that America can’t be trusted with secrets. “Leaks related to national security can put people at risk,” as Obama put it today in a news conference.

The ultimate audience for the leaks investigation may not be domestic but foreign. Obviously, the government wants to root out the secretspillers. But a country can’t expect foreign intelligence agencies to cooperate if it blows cover of such an operation. I’d wager that the investigations have only begun.

Since 9/11 there have been many situations where the government has gone overboard in placing security (and sometimes false claims of security) over civil liberties. The answer on this one is certainly not clear.

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Republicans Overplaying Their Hand On Benghazi: Military Experts And Public Don’t Believe Them

Here’s a few quick links in case you are getting lost in all the Republican noise on Benghazi, such as Darrel Issa attacking Barack Obama for describing  the killing of Americans in Libya as an “act of terror” rather than a “terrorist attack.” Here’s a partial run down of people who are not very impressed with the Republican arguments:

The military isn’t impressed. A National Security column in Foreign Policy argues that military force would not have been successful in response to the attack.

Don’t want to believe a columnist who might be a Democrat? How about a Republican who has been Secretary of Defense:

Former Secretary of Defense Robert Gates forcefully defended the Obama administration on Sunday against charges that it did not do enough to prevent the tragedy in Benghazi, telling CBS’ “Face the Nation” that some critics of the administration have a “cartoonish impression of military capabilities and military forces.”

Gates, a Republican who was appointed by then-President George W. Bush in 2006 and agreed to stay through more than two years of President Obama’s first term, repeatedly declined to criticize the policymakers who devised a response to the September 2012 attack on a U.S. diplomatic facility in Benghazi, Libya, that left four Americans dead, including the U.S. Ambassador to Libya, Chris Stevens.

“Frankly, had I been in the job at the time, I think my decisions would have been just as theirs were,” said Gates, now the chancellor of the College of William and Mary.

“We don’t have a ready force standing by in the Middle East, and so getting somebody there in a timely way would have been very difficult, if not impossible.” he explained.

Suggestions that we could have flown a fighter jet over the attackers to “scare them with the noise or something,” Gates said, ignored the “number of surface to air missiles that have disappeared from [former Libyan leader] Qaddafi’s arsenals.”

“I would not have approved sending an aircraft, a single aircraft, over Benghazi under those circumstances,” he said.

Another suggestion posed by some critics of the administration, to, as Gates said, “send some small number of special forces or other troops in without knowing what the environment is, without knowing what the threat is, without having any intelligence in terms of what is actually going on on the ground, would have been very dangerous.”

“It’s sort of a cartoonish impression of military capabilities and military forces,” he said. “The one thing that our forces are noted for is planning and preparation before we send people in harm’s way, and there just wasn’t time to do that.”

Gates said he could not speak to allegations that the State Department refused requests for additional security in the months prior to the attack. Former Secretary of State Hillary Clinton has been increasingly targeted for criticism by Republicans for her handling of the crisis and the government’s response, with some even raising the possibility that the State Department engineered a coverup to protect her political future.

But when Gates was asked whether he thought that might be a possibility, he replied flatly, “No.”

“I worked with Secretary Clinton pretty closely for two and a half years, and I wouldn’t want to try and be somebody…trying to convince her to say something she did not think was true,” he said, adding that he has not spoken with Clinton about the events in Benghazi.

The public is also unimpressed by these transparently political attacks. Republicans believe they can harm Hillary Clinton politically over Benghazi, but so far there is no evidence of this . Public Policy Polling found that more people trust Clinton than the Republican Congress:

PPP’s newest national poll finds that Republicans aren’t getting much traction with their focus on Benghazi over the last week. Voters trust Hillary Clinton over Congressional Republicans on the issue of Benghazi by a 49/39 margin and Clinton’s +8 net favorability rating at 52/44 is identical to what it was on our last national poll in late March. Meanwhile Congressional Republicans remain very unpopular with a 36/57 favorability rating.

Voters think Congress should be more focused on other major issues right now rather than Benghazi. By a 56/38 margin they say passing a comprehensive immigration reform bill is more important than continuing to focus on Benghazi, and by a 52/43 spread they think passing a bill requiring background checks for all gun sales should be a higher priority.

This part sounds like a Sarah Palin joke:

One interesting thing about the voters who think Benghazi is the biggest political scandal in American history is that 39% of them don’t actually know where it is. 10% think it’s in Egypt, 9% in Iran, 6% in Cuba, 5% in Syria, 4% in Iraq, and 1% each in North Korea and Liberia with 4% not willing to venture a guess.

I bet they also don’t know what happened there, or that it was the Republicans who cut funding for embassy security.

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