Backfire: Instead of whitewashing NSA surveillance, Obama’s handpicked review panel urges change
POSTED AT 8:01 PM ON DECEMBER 18, 2013 BY ALLAHPUNDIT
Not the result His Majesty expected, needless to say. Remember, he chose this panel because he trusted they’d go face-first into the tank for him by rubber-stamping mass surveillance. In the end they recommended 46 changes to the program, the most prominent of which is to have telecom companies control the database of customers’ metadata going forward rather than let the feds hoard the info and do lord knows what with it as government’s data-crunching capabilities inevitably expand. Only by getting an order from the FISA Court should the NSA be able to access the database, the panel said, and only then if it’s relevant to a particular terrorism investigation.
The full report is more than 300 pages long but I doubt there’s a more important paragraph in it than this one. Today’s magic words are “not essential.”
That’s the second time in three days that an independent observer who’s looked closely at the program has claimed that it’s just not very effective. The other was Judge Richard Leon, who invited the DOJ to show him examples of metadata helping to stop terrorist plots and felt obliged to note that they couldn’t.
Benjamin Wittes of Lawfare knows a political disaster when he sees one:
This is a really awkward document for the Obama administration. Reallyawkward.The President, after all, has stood by the necessity of the Section 215 program and objected to legislative proposals to curtail it. Then the White House handpicks a special review group, and it kind of pulls the rug out from under the administration’s position…Similarly, the administration has stood by its national security letters authority. The review group suggests reining it in…To put the matter bluntly, there is no way the administration will embrace a bunch of these recommendations. And from this day forward, any time the White House and the intelligence community resist these calls for change, the cry will go out that Obama, in doing so, is ignoring the recommendations of his own review panel. And the cry will be right.
Exactly. The panel’s recommendations obviously aren’t binding on him, but this report was supposed to be a fig leaf for O so that he could make some cosmetic changes and then declare the program “fixed.” As it is, they’re suggesting at least one change, i.e. placing the NSA and America’s Cyber Command under different directors, that the White House has already rejected out of hand. And certain others, like having the NSA stop trying to undermine encryption standards so that it can stay ahead of the technological privacy curve, are bound to be rejected too.
But … maybe we’re looking at this the wrong way. Here’s a tantalizing tidbit from Politico’s report yesterday about NSA officials being “slobberknockered” by how hard Obama’s panel ended up being on them:
Reflecting on the dramatic changes that have taken place since the first newspaper stories based on Snowden’s leaked materials began appearing back in June, one U.S. official noted that the NSA’s once-solid support inside the White House and on Capitol Hill has waned since the panel was created in August, and that the once cordial relationship between the White House and NSA has become distinctly “chilly” over the past two months.NSA officials became concerned this fall when their memos were increasingly ignored and their phone calls to key officials in Washington, especially at the State Department, were not returned. And more ominously, rumors began to reach NSA headquarters at Fort Meade, Maryland, that the review panel had been given new marching orders to be robust and searching in its report.“We got the distinct impression that we were now lepers in Washington,” a senior NSA official recalled, adding, “Putting as much distance as possible between the White House and us was the order of the day.”
Between the promise of further (and more damaging?) Snowden revelations and the potential for this subject to spark a bipartisan revolt in Congress (Justin Amash’s defunding measure nearly passed the House a few months ago), maybe the White House decided that it was time to throw the NSA under the bus. At some point, perhaps, the order came down to the panel that the best way to protect Obama was to switch from a whitewash of the program to a few meatier reform proposals that he can embrace as a way of limiting his political exposure on Big Brother surveillance. There’s no way, really, for him to suddenly change his mind and claim that he’s spontaneously reconsidered everything he said before in defense of the program. But if his handpicked panel floats a few ideas for him, he can portray himself as the can-do executive who took the problem seriously enough to closely investigate it and then listened to his experts when they urged him to change course in a few ways. He conducted a fact-finding mission, by delegation, and now his opinion has changed in a few particulars. What a champ.
He’s not going to get rid of the program, obviously — if he did that and there was a new attack on U.S. soil, hawks would destroy him over it notwithstanding today’s “not essential” finding — but maybe adopting a few key recommendations will calm Democrats in Congress and liberals in his base. That at least might spare him some legislative humiliation in which a more draconian reform measure passes both houses and he has to decide whether to veto it or not. O looooves unilateral power, but he doesn’t want unilateral responsibility for protecting the program. Exit quotation from Pat Leahy: “The message to the NSA is now coming from every branch of government and from every corner of our nation: You have gone too far.”
http://market-ticker.org/akcs-www?post=226856
Hang 'Em High (NSA)
A federal judge ruled Monday that the National Security Agency program which collects information on nearly all telephone calls made to, from or within the United States is likely to be unconstitutional.Note the bar for injunctive relief; it is a three-prong test and you must satisfy all of them:
U.S. District Court Judge Richard Leon found that the program appears to violate the Fourth Amendment prohibition on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the so-called metadata had helped to head off terrorist attacks.
- You are more-likely than not to win on the merits when the case is decided. That is, whatever you're arguing has to be quite-clear and convincing facially from the material you present, to lead to a winning conclusion.
- You will suffer irreparable harm if you don't get relief. That is, mere payment of money does not compensate you for whatever is happening. If money will compensate you then if the harm goes on for longer that simply means you get more money.
- The balance of harms is in your favor. That is, if the relief is granted the harm done to others (if any) is outweighed by the harm done to you if the relief isn't granted.
But it's what's contained within the ruling that ought to lead to immediate criminal sanction against the NSA, particularly against Mr. Clapper who we now know lied to Congress when questioned about these programs.
Why?
Because under 18 USC 242 and 42 USC 1983 a conspiracy to deny someone Constitutional rights under color of law or authority is both civilly and criminally actionable.
And it is in the decision itself that we find the reason that the acts of the NSA, along with every Congressperson, every government-employed attorney and every government employee who has knowingly and intentionally supported this crap, needs to find themselves in the dock and ultimately behind bars.
There it is folks, read it and weep.
The government has effectively defused "standing" by refusing to confirm that a given program exists and is in fact doing what it is doing.
In other words they are hiding behind secrecy while using it against you and are doing so by actively lying.
This is broadly impermissible in any sort of actual justice system. The justice system prohibits you from suing over speculative damages, but it is also supposed to prohibit you from profiting from your own unclean hands -- that is, from your own deceptions and lies.
Indeed, the entire premise of justice relies on the fact that you cannot force a dismissal of a suit (or prosecution) against you via deception and scam -- only by presentation of facts, or evidence that the opposing side's presentation lacks said facts.
But in this case the facts are that the surveillance is taking place -- that is, the facts are that the intrusion is real. It is only the claim of secrecy and intentional obfuscation by the government that led to the previous dismissal as the alleged injury was ruled "speculative."
It in fact was not speculative at all and the attorneys who so-argued and their client, in this case the government, knew it was not.
That is, just like Clapper, they committed a crime by falsely claiming that the injury alleged was speculative because the program wasn't "proved" to exist when they knew damn well it both did and was collecting the data.
This crap must be stopped and the only way to stop it is with prison terms.
The judicial system is correct in not allowing you to recover from a "speculative" injury, but we, the people, must insist that when a party at interestknowingly raises a false defense -- in this case claiming "speculative" injury when they know damn well they're engaged in the conduct alleged the consequences for same must be prosecution and imprisonment for everyone involved, including but not limited the attorneys and government employees who cause the false defense to be raised.
Period.
Monday, December 16, 2013 2:21 PM
District Court Judge Rules NSA Phone Taps Likely Unconstitutional; 68 Page Ruling Cites "Orwellian Technology" and Unreasonable Searches
In a rare victory for constitutional freedoms, U.S. District Court Judge Richard Leon, ruled NSA phone program likely unconstitutional.
A federal judge ruled Monday that the National Security Agency program which collects information on nearly all telephone calls made to, from or within the United States is likely to be unconstitutional.
U.S. District Court Judge Richard Leon found that the program appears to run afoul of the Fourth Amendment prohibition on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the so-called metadata had helped to head off terrorist attacks.
“Plaintiffs have a very significant expectation of privacy in an aggregated collection of their telephone metadata covering the last five years, and the NSA’s Bulk Telephony Metadata Program significantly intrudes on that expectation,” wrote Leon, an appointee of President George W. Bush. “I have significant doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.”
“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval,” Leon added.
Similar lawsuits challenging the program are pending in at least three other federal courts around the country.
Digging into the 68 Page Ruling
Those wishing to read the entire 68 page ruling can do so at Legal Times.
Unfortunately the PDF is in image form.
Here are a image clips of sections not mentioned elsewhere by others.
Click on any image for sharper view.
Leon Blasts Government for "Wanting It Both Ways" - page 38
Plaintiffs Are Likely to Succeed on Merits of Their Fourth Amendment Claim page 42
"Collection and Analysis of Telephony Metadata Constitutes a Search" page 43
"Almost-Orwellian Technology" - page 49
"Significant Likelihood Searches are Unreasonable" - Page 56
On the same page Leon notes "As a general matter, warrantless searches are per se unreasonable under the fourth amendment".
On page 61 Leon stated "The government does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack."
Government Barred from Bulk Data Collection
You have to love the end!
On page 67-68
Rare Victory
This is a rare victory for common sense and the constitution. However, the ruling is subject to review from a higher court.
Expect Obama to fight hard to maintain unreasonable searches.
Thank Snowden
We can thank patriot and true American hero Edward Snowden for this important victory. In contrast, House speaker John Boenner stands with President Obama in making a constitutional fool of himself.
Mike "Mish" Shedlock
Judge Rules NSA's "Indiscriminate & Arbitrary" Invasion Of Privacy Likely Unconstitutional
A federal judge ruled Monday that the National Security Agency program which collects information on nearly all telephone calls made to, from or within the United States is likely to be unconstitutional. As Politico reports, Judge Richard Leon blasted, "I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval." This is the first significant legal setback for the NSA’s surveillance program since Edward Snowden exposed it.
U.S. District Court Judge Richard Leon found that the program appears to run afoul of the Fourth Amendment prohibition on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the so-called metadata had helped to head off terrorist attacks....“Plaintiffs have a very significant expectation of privacy in an aggregated collection of their telephone metadata covering the last five years, and the NSA’s Bulk Telephony Metadata Program significantly intrudes on that expectation,” wrote Leon, an appointee of President George W. Bush. “I have significant doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.”...Leon’s ruling is the first significant legal setback for the NSA’s surveillance program since it was disclosed in June in news stories based on leaks from former NSA contractor Edward Snowden. The metadata program has been approved repeatedly by numerous judges on the Foreign Intelligence Surveillance Court and at least one judge sitting in a criminal case.
The Blog of Legal Times adds:
A federal magistrate judge in Washington today released a 157-page report detailing evidence and testimony in a dispute over the handling of evidence from mass arrests of protesters in downtown Washington in 2002.U.S. District Magistrate Judge John Facciola did not, however, offer his conclusions on the central issue of whether city or police officials mishandled, concealed or destroyed evidence.Facciola, who was appointed by U.S. District Judge Emmet Sullivan to probe the evidence-related allegations as a special master, wrote that he wasn't clear on the scope of his authority at this point."As I am reluctant to speculate as to Judge Sullivan’s intentions, particularly when the sanctions sought are so severe," Facciola wrote.The underlying litigation involves mass arrests by the Metropolitan Police Department during protests around Pershing Park in 2002. In recent years, the arrest litigation has been put on hold as lawyers for the plaintiffs and the city fought over allegations that officials mishandled evidence and withheld information from the court.Facciola's report didn't include a time frame for when Sullivan might decide how the case should proceed. "I will instead issue the following findings of fact but defer issuing conclusions of law until Judge Sullivan indicates the nature of the authority he wishes me to exercise," Facciola wrote, "assuming he intends me to have additional responsibilities once he reviews my findings."
http://www.kpopstarz.com/articles/69866/20131216/edward-snowden-asks-amnesty-court-rulings-white-house.htm
Edward Snowden Asks for Amnesty After Court Rulings; White House Says No
By Tony Sokol | December 16, 2013 05:44 PM EST
Edward Snowden says a recent judge's ruling vindicates him for leading NSA documents. The White House won't be granting Snowden amnesty though. A top National Security Agency (NSA) official brought up the idea of granting Snowden amnesty if he stopped leaking documents.
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The White House ruled out any suggestion of granting amnesty to Edward Snowden, the intelligence contractor who leaked classified documents to a filmmaker. Edward Snowden has been granted asylum in Russia for one year.
Edward Snowden says a recent ruling by Judge Richard Leon vindicates the whistleblower's NSA surveillance disclosures. The judge recently said that the phone surveillance program was likely unconstitutional. Edward Snowden has been quoted as saying "the American public deserves a chance to see these issues determined by open court."
White House spokesman Jay Carney said in a press conference that if Snowden returns to the United States he will face felony charges. Carney says if Snowden "will be accorded full due process and protections in our system." Carney confirmed that the head of the NSA task for on the damage that Snowden's leaks have caused, Richard Ledgett, was called in to give "his personal opinion."
Edward Snowden said the ruling justified the leaks. In comments released through former Guardian journalist Glenn Greenwald, Snowden said "I acted on my belief that the NSA's mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts. Today, a secret program authorised by a secret court was, when exposed to the light of day, found to violate Americans' rights. It is the first of many," said Snowden, whose statement was first reported by the New York Times. Greenwald was the journalist who received the documents from Snowden.
Judge Richard Leon wrote "The government does not cite a single case in which analysis of the NSA's bulk metadata collection actually stopped an imminent terrorist attack. Given the limited record before me at this point in the litigation - most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics - I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism."
Senator Mark Udall said "The ruling underscores what I have argued for years: [that] the bulk collection of Americans' phone records conflicts with Americans' privacy rights under the US constitution and has failed to make us safer," said Udall, a Democrat.
White House, spokesman Jay Carney said he had no comment on the case.
Justice Department spokesman Andrew Ames said "We've seen the opinion and are studying it. We believe the program is constitutional as previous judges have found. We have no further comment at this time."
A different type of smackdown.....From Frau Merkel to Obama
A different type of smackdown.....From Frau Merkel to Obama
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Angela Merkel, with Germany's finance minister Wolfgang Schaeuble, was enraged at hearing the NSA tapped her personal mobile. Photograph: Sean Gallup/Getty Images
In an angry exchange with Barack Obama, Angela Merkel has compared the snooping practices of the US with those of the Stasi, the ubiquitous and all-powerful secret police of the communist dictatorship in EastGermany, where she grew up.
The German chancellor also told the US president that America's National Security Agency cannot be trusted because of the volume of material it had allowed to leak to the whistleblower Edward Snowden,according to the New York Times.
Livid after learning from Der Spiegel magazine that the Americans were listening in to her personal mobile phone, Merkel confronted Obama with the accusation: "This is like the Stasi."
The newspaper also reported that Merkel was particularly angry that, based on the disclosures, "the NSA clearly couldn't be trusted with private information, because they let Snowden clean them out."
Snowden is to testify on the NSA scandal to a European parliament inquiry next month, to the anger of Washington which is pressuring the EU to stop the testimony.
In Brussels, the chairman of the US House select committee on intelligence, Mike Rogers, a Republican, said his views on the invitation to Snowden were "not fit to print" and that it was "not a great idea".
Inviting someone "who is wanted in the US and has jeopardised the lives of US soldiers" was beneath the dignity of the European parliament, he said.
He declined to comment on Merkel's alleged remarks to Obama. In comments to the Guardian, he referred to the exchange as "a conversation that may or may not have occurred".
Senior Brussels officials say the EU is struggling to come up with a coherent and effective response to the revelations of mass US and British surveillance of electronic communication in Europe, but that the disclosure that Merkel's mobile had been monitored was a decisive moment.
A draft report by a European parliament inquiry into the affair, being presented on Wednesday and obtained by the Guardian, says there has to be a discussion about the legality of the NSA's operations and also of the activities of European intelligence agencies.
The report drafted by Claude Moraes, the British Labour MEP heading the inquiry, says "we have received substantial evidence that the operations by intelligence services in the US, UK, France and Germany are in breach of international law and European law".
Rather than resorting to a European response, Berlin has been pursuing a bilateral pact with the Americans aimed at curbing NSA activities and insisting on a "no-spying pact" between allies.
The NYT reported that Susan Rice, Obama's national security adviser, had told Berlin that there would be not be a no-espionage agreement, although the Americans had pledged to desist from monitoring Merkel personally.
A high-ranking German official with knowledge of the talks with the White House told the Guardian there had been a "useful exchange of views", but confirmed a final agreement was far from being reached.
The Germans have received assurances that the chancellor's phone was not being monitored and that the US spy agency is not conducting industrial espionage.
However the official, who spoke on condition of anonymity because of the sensitivity of the talks, said German and US officials were still in the process of negotiating how any final agreement – the details of which could remain secret between both governments – would be formalised.
Their discussions, which include talks about so-called confidence building measures, are also bound-up with wider discussions with the EU regarding special privacy assurances that might be afforded to its citizens under a future arrangement.
"We want to be assured that not everything that is technically possible will be done," the German official added.
In Germany, the main government minister dealing with the NSA fallout, Hans-Peter Friedrich, has fallen victim to a reshuffle in the new coalition unveiled in Berlin at the weekend. Friedrich, from Bavaria's Christian Social Union, is not seen as an ally of Merkel's and was widely viewed to have performed less than robustly in the exchanges with the Americans.
His replacement as interior minister, by contrast, is a close ally of Merkel's – her former chief of staff and former defence minister, Thomas de Maiziere. Additionally, Merkel has brought a former senior intelligence official into the new coalition.
Alongside De Maiziere at the interior ministry, she has appointed Klaus-Dieter Fritsche, previously deputy head of the domestic intelligence service, Germany's equivalent of MI5.
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