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Obama’s New NSA Proposal and Democratic Partisan Hackery

By Glenn Greenwald, The Intercept

25 Mar 2014, 9:49 AM EDT

I vividly recall the first time I realized just how mindlessly and uncritically supportive of President Obama many Democrats were willing to be. In April 2009, two federal courts, in a lawsuit brought by the ACLU, ruled that the Freedom of Information Act (FOIA) required the Pentagon to disclose dozens of graphic photos it possessed showing abuse of detainees in Iraq and Afghanistan. The Obama administration announced that, rather than contest or appeal those rulings, they would comply with the court orders and release all the photos. The ACLU praised that decision: “the fact that the Obama administration opted not to seek further review is a sign that it is committed to more transparency.”

This decision instantly turned into a major political controversy. Bush-era neocons, led by Bill Kristol and Liz Cheney, excoriated Obama, arguing that release of the photos would endanger American troops and depict the US in a negative light; Cheney expressly accused Obama of “siding with the terrorists” by acquiescing to the ruling. By contrast, Democrats defended Obama on the ground that the disclosures were necessary for transparency and the rule of law, and they attacked the neocons for wanting to corruptly hide evidence of America’s war crimes. I don’t think there was a single Democratic official, pundit, writer, or blogger who criticized Obama for that decision.

But then – just two weeks later – Obama completely reversed himself, announcing that he would do everything possible to block the court order and prevent it from taking effect. ABC News described Obama’s decision as “a complete 180.” More amazingly still, Obama adopted the exact arguments that Bill Kristol and Liz Cheney were making over the prior two weeks to attack him specifically and transparency generally: to justify his desire to suppress this evidence, Obama said that “the most direct consequence of releasing the [photos], I believe, would be to further inflame anti-American opinion and to put our troops in danger.”

Now, obviously, the people who had been defending Obama’s original pro-transparency position (which included the ACLU, human rights groups, and civil liberties writers including me) changed course and criticized him. That’s what rational people, by definition, do: if a political official takes a position you agree with, then you support him, but when he does a 180-degree reversal and takes the exact position that you’ve been disagreeing with, then you oppose him. That’s just basic. Thus, those of us who originally defended Obama’s decision to release the photos turned into critics once he took the opposite position – the one we disagreed with all along – and announced that he would try to suppress the photos.

But that’s not what large numbers of Democrats did. Many of them first sided with Obama when his administration originally announced he’d release the photos. But then, with equal vigor, they also sided with Obama when – a mere two weeks later – he took the exact opposition position, the very anti-transparency view these Democrats had been attacking all along when voiced by Bill Kristol and Liz Cheney.

At least for me, back then, that was astonishing to watch. It’s one thing to strongly suspect that people are simply adopting whatever views their party’s leader takes. But this was like the perfect laboratory experiment to prove that: Obama literally took exact opposition positions in a heated debate within a three week period and many Democrats defended him when he was on one side of the debate and then again when he switched to the other side.

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This new proposal would not, as some have tried to suggest, simply shift the program to telecoms. Telecoms – obviously – already have their customers’ phone records, and the key to any proposal is that it not expand the length of time they are required to retain those records (though telecoms only have their specific customers’ records, which means that – unlike the current NSA program – no one party would hold a comprehensive data base of all calls). As reported by Savage, Obama’s proposal does nothing to change how long telecoms keep these records (“the administration considered and rejected imposing a mandate on phone companies that they hold on to their customers’ calling records for a period longer than the 18 months that federal regulations already generally require”). That’s why, if enacted as he’s proposing it, Obama’s plan could actually end the NSA’s bulk collection program.

That puts hard-core Obama loyalists and pro-NSA Democrats – the ones that populate MSNBC – in an extremely difficult position. They have spent the last 10 months defending the NSA (i.e., defending Obama) by insisting that the NSA metadata program is both reasonable and necessary to Keep Us Safe™. But now Obama claims he wants to end that very same program. So what will they do?

If they had even an iota of integrity or intellectual honesty, they would instantly and aggressively condemn Obama. After all, he’s now claiming to want to end a program that they have been arguing for months is vital in Keeping Us Safe™. Wouldn’t every rational person, by definition, criticize a political leader who wants to abolish a program that they believe is necessary to stop terrorism and preserve national security?

But that’s not what will happen. After spending months praising the NSA for responsibly overseeing this critical program, they will now hail Obama for trying to end it. When he secretly bulk collects the calling data on all Americans, it shows he’s a pragmatic and strong leader who Keeps Us Safe™; when he tries to end the very same program, it shows he’s flexible and devoted to our civil liberties – just as he was right to release the torture photos and also right to suppress them. The Leader is right when he does X, and he’s equally right when he does Not X. That’s the defining attribute of the mindset of a partisan hack, an authoritarian, and the standard MSNBC host.

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One use of the word chaff is thin strips of foil used to confuse radar.

The House’s NSA bill could allow more spying than ever. You call this reform?

Trevor Timm, The Guardian

Tuesday 25 March 2014 09.07 EDT

The House proposal, to be unveiled this morning by Reps Mike Rogers and Dutch Ruppersberger, is the more worrying of the two. Rogers has been the NSA’s most ardent defender in Congress and has a long history of distorting the truth and practicing in outright fabrication, whether in touting his committee’s alleged “oversight” or by way of his attempts to impugn the motives of the once again vindicated whistleblower who started this whole reform debate, former NSA contractor Edward Snowden.

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His new bill seems to have the goal of trading government bulk collection for even more NSA power to search Americans’ data while it sits in the hands of the phone companies.

While the full draft of the bill isn’t yet public, the Guardian has seen a copy, and its description does not inspire confidence. Under the Rogers and Ruppersberger proposal, slyly named the “End Bulk Collection Act”, the telephone companies would hold on to phone data. But the government could search data from those companies based on “reasonable articulable suspicion” that someone is an agent of a foreign power, associated with an agent of a foreign power, or “in contact with, or known to, a suspected agent of a foreign power”. The NSA’s current phone records program is restricted to a reasonable articulable suspicion of terrorism.

A judge would reportedly not have to approve the collection beforehand, and the language suggests the government could obtain the phone records on citizens at least two “hops” away from the suspect, meaning if you talked to someone who talked to a suspect, your records could be searched by the NSA. Coupled with the expanded “foreign power” language, this kind of law coming out of Congress could, arguably, allow the NSA to analyze more data of innocent Americans than it could before.

President Obama’s reported proposal sounds more promising, though we have even fewer details than the Intelligence Committee proposal. The administration’s plan would supposedly end the collection of phone records by the NSA, without requiring a dangerous new data retention mandate for the phone companies, while restricting analysis to the current rules around terrorism and, importantly, still requiring a judge to sign off on each phone-record search made to the phone companies – under what the New York Times described as “a new kind of court order”.

This phone plan, apparently, represents Obama coming full-circle as his self-imposed deadline on NSA reform arrives Friday, when the court order authorizing bulk collection runs out. But there’s no indication that the president’s plan would stop other types of bulk collection – such as internet or financial records – and there’s still a big question about what the NSA could do with the data they receive on innocent people two “hops” away from a suspect.

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Rep James Sensenbrenner’s bill, the USA Freedom Act, would make a much stronger and more comprehensive bill than either new proposal – at least for those interested in real NSA reform. Sensenbrenner, who originally wrote the Patriot Act provision that the NSA re-interpreted in secret, called the House Intelligence proposal “a convoluted bill that accepts the administration’s deliberate misinterpretations of the law”. Although, even his bill could be strengthened to ensure bulk collection of Americans’ records is no longer an option for the NSA, or any other government agency.

Obama to set out proposal to end NSA’s mass collection of phone data

Spencer Ackerman, The Guardian

Wednesday 26 March 2014 08.47 EDT

Under plans to be put forward by the Obama administration in the next few days, the National Security Agency would end the bulk collection of telephone records, and instead would need to seek a court order to search records held by the telephone companies.

A separate proposal, to be published on Tuesday by the leaders of the House intelligence committee, would not necessarily require a judge’s prior approval to access phone or email data.

Neither the White House nor the House intelligence committee proposal would require telecommunications firms to keep such records any longer than the current 18-month maximum, a significant shift away from the five years during which they are currently held by NSA.

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The bill, titled the End Bulk Collection Act of 2014 and currently circulating on Capitol Hill, would prevent the government from acquiring “records of any electronic communication without the use of specific identifiers or selection terms.”

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But the bill would allow the government to collect electronic communications records based on “reasonable articulable suspicion”, rather than probable cause or relevance to a terrorism investigation, from someone deemed to be an agent of a foreign power, associated with an agent of a foreign power, or “in contact with, or known to, a suspected agent of a foreign power.”

A draft of the bill acquired by the Guardian proposes the acquisition of such phone or email data for up to a year and would not necessarily require prior approval by a judge. Authorisation of the collection would come jointly from the US attorney general and director of national intelligence.

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The House intelligence committee proposal represents competition to a different bill introduced last fall by privacy advocates in the Senate and House judiciary committees known as the USA Freedom Act. That bill, which has 163 co-sponsors in both chambers, does not lower the legal standard for data collection on US persons, and would prohibit the NSA from searching for Americans’ identifying information in its foreign-oriented communications content databases, something the House intelligence bill would not.

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But in a sign of the continuing contentiousness on Capitol Hill over changes to NSA surveillance, James Sensenbrenner, a Wisconsin Republican and co-author of the USA Freedom Act, preemptively rejected the House intelligence committee proposal, calling it “a convoluted bill that accepts the administration’s deliberate misinterpretations of the law.

“It limits, but does not end, bulk collection. Provisions included in the draft fall well short of the safeguards in the USA Freedom Act and do not strike the proper balance between privacy and security,” Sensenbrenner said in a statement late on Monday.

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According to a New York Times report late on Monday, Obama will propose ending bulk phone data collection and replacing it with individualised orders for telecom firms to provide phone records up to two “hops” – or degrees of separation – from a phone number suspected of wrongdoing. The effort goes further towards the position favoured by privacy advocates than Obama proposed in January. Obama will request the Fisa court approve the current bulk collection program for a final 90-day renewal as he attempts to implement the new plan.

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“Until Congress passes new authorizing legislation, the president has directed his administration to renew the current program, as modified substantially by the president in his January speech.”

Obama is cancelling the NSA dragnet. So why did all three branches sign off?

Jameel Jaffer, American Civil Liberties Union, The Guardian

Tuesday 25 March 2014 10.09 EDT

To anyone who criticized the National Security Agency’s phone-records dragnet over the last nine months or so, the American intelligence community had this stock response: all three branches of government signed off on it.

The intelligence community was right, at least in a sense, but what it presented as a defense of the surveillance program was actually an indictment of our oversight system. What it presented as a defense of the program was actually a scandal.

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(I)f the administration is right that the dragnet was unnecessary, we should ask how all three branches of government got it so wrong.

The answer, in a word, is secrecy. When intelligence officials proposed the dragnet, there was no one on the other side to explain that the government’s goals could be achieved with less-intrusive means. There was no one there to mention that the law the government was invoking couldn’t lawfully be used to collect call-records. There was no one there to mention that the bulk collection of call records was unconstitutional.

Instead, there was an entirely one-sided system in which government attorneys presented the supposed interests of the intelligence community in the most expansive way possible, and the judges of a poorly resourced court tried unsuccessfully, and sometimes halfheartedly, to imagine what ordinary citizens might say in response. Over time, and perhaps without entirely meaning to, the court developed a wholly new body of law, a body of law animated not by democratic principles but by the values of the intelligence community – collect, analyze, conceal.

The intelligence committees that were meant to serve as a further check on unwarranted government surveillance failed just as profoundly.

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One can confidently predict that the administration’s proposal to end the NSA’s bulk collection of phone records will not go far enough. According to the Times report, the administration’s proposal will still have the NSA collecting records about people who are two steps removed from terrorism suspects, not just records about the terrorism suspects themselves. The administration doesn’t seem to be contemplating new limits on the agency’s authority to retain, analyze or disseminate the records it collects. And it isn’t proposing to end bulk collection of all records – just the bulk collection of phone records. And of course Congress must approve the proposal.

But, as David Cole has observed, this much can be said about the administration’s proposal already: the president is acknowledging that a surveillance program endorsed by all three branches of government, and in place for more than a decade, has not been able to survive public scrutiny. It’s an acknowledgement that the intelligence agencies, the surveillance court and the intelligence committees struck a balance behind closed doors that could not be defended in public.