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.”
Hang 'Em High (NSA)
Monday, December 16, 2013 2:21 PM
Judge Rules NSA's "Indiscriminate & Arbitrary" Invasion Of Privacy Likely Unconstitutional
Submitted by Tyler Durden on 12/16/2013 14:05 -0500
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."
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