Yesterday, the Privacy and Civil Liberties Oversight Board released a report concluding that the National Security Agency’s massive surveillance program is “illegal and largely ineffective.” The report agrees with a prior federal court ruling that the program is facially unconstitutional. President Obama continues to defend the program and refuse to end it. What is most notable is, like the earlier federal court, the board found no evidence of the program being used to prevent a single terrorist attack despite statements from the Administration claiming the contrary. Civil libertarians are often opposed by people claiming such success of classified programs. However, now a federal judge and a board with access have debunked such claims.
The conclusion also contradicts an earlier stacked “reform” board picked by the White House that assumed that program was lawful. Despite the lack of any effectiveness, one board member actually called for the program to be expanded further.
The Board announced that “[w]e have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counter-terrorism investigation.”
The majority found that Section 215 of the Patriot Act does not support the program and that it violates constitutional protections concerning free speech, unreasonable searches and seizures and privacy: “When the government collects all of a person’s telephone records, storing them for five years in a government database that is subjected to high-speed digital searching and analysis, the privacy implications go far beyond what can be revealed by the metadata of a single telephone call.”
Notably, the only two dissenting votes came from two former Department of Justice lawyers in the Bush administration, Rachel Brand and Elisebeth Collins Cook. They would have declared the program lawful and needed. That is certainly consistent with their training. The Justice Department has long been criticized for rubber-stamping intelligence programs and shielding officials from accountability for the destruction of evidence, torture, and other misconduct.
The White House in response merely repeated the President’s position that the program is lawful and referred to his earlier proposed reforms that offer largely cosmetic changes.
Congressional Democrats appear to be rushing to pass such such marginal reforms to give the appearance of concern over civil liberties while preserving the program. In the meantime, the Republicans have called for an investigation into the massive program and the decline of privacy.
Many Democrats continue to support Obama despite his comprehensive attack on privacy and expansion of national security powers as well as executive powers. Nevertheless, the White House has been successful in getting supporters to return to the same theme: the Republicans are worse and Bush started most of these programs. The problem is that Obama has expanded not only some of these programs but he was radically expanded the claims of largely unchecked presidential powers. It is a legacy that will haunt this country for generations.
If Obama were to randomly assassinate half the citizens of a town based on geographical location, he might argue that made the town twice as safe from crime as the random killing spree would presumably kill about half the criminals along with half of any other groups.
And then there would be counter arguments that perhaps the criminals were not evenly distributed so random assassinations based on geographical distribution might not work.
But the fact remains in either case that randomly killing people is repugnant in and of itself. Period. It would require the most extraordinary circumstances to even be considered and such circumstances have rarely occurred historically and never where non pathological alternatives couldn’t be found. And terrorism is no exception. The same is true of torture in all circumstances and of unwarranted or “bulk” spying, or really any serious intrusion of privacy, on people without judicial oversight and restraint. There are technological twists and turns, but in principal these things have been worked out over hundreds of years and are embodied in our constitution and in our international treaties and in our deepest sense of fair play.
That Bush and Obama – and their cohorts, their lawyers, their administrations – have so utterly ignored their pledges to protect and honor the constitution proves they are both beyond “the lessor of two evils” argument. Their actions are are so deeply harmful to society regardless of whatever claims of benefit are made that such comparisons are essentially moot. At some point, and they have clearly reached and passed it, people and political parties and religions and ideologies (Nazism comes to mind) are subject to the same sorts of thresholds where picking one over another is simply overwhelmed by the gravity of the principal being ignored or suspended.
Op-Ed
Obama’s NSA blind spot
The president has no right to sit on the sidelines waiting for the Supreme Court to tell him what the Constitution means.
By Bruce Ackerman
January 26, 2014 (though it’s only the 25th)
http://www.latimes.com/opinion/commentary/la-oe-adv-ackerman-nsa-obama-20140126,0,2145502.story#ixzz2rQ27rzpV
Excerpt:
President Obama’s recent speech on government surveillance is dominating the conversation, but he won’t be making the key decisions on the future of the National Security Agency’s collection of domestic phone data. The statutory provision authorizing these massive sweeps expires June 1, 2015. If Congress simply does nothing, the NSA’s domestic spying program will soon come to a screeching halt.
The question is whether Americans will seize this opportunity to gain critical perspective on the crisis responses of the George W. Bush years. Voters elected and reelected Obama precisely because he promised to engage in this decisive reappraisal. But his speech failed to redeem this promise.
The president simply tried to reassure America that all is well and only some fine-tuning is required. His remarkable opening lines endow the NSA with a formidable pedigree: “At the dawn of our republic, a small, secret surveillance committee … would patrol the streets, reporting back any signs that the British were preparing raids against America’s early patriots.” By his account, the NSA is simply carrying on this great tradition of espionage.
In contrast, Obama never mentions the 4th Amendment’s demand that “no warrants shall issue, but upon probable cause … describing the place to be searched, and the persons or things to be seized.” This was the Revolutionary generation’s serious contribution to America’s constitutional legacy, not the precedent set by a “small, secret surveillance committee.” What is more, a district court judge recently invoked the amendment to condemn the NSA’s indiscriminate data-gathering, providing a vehicle for litigation that will probably reach the Supreme Court.
Obama has no right to sit on the sidelines until the high court tells him what the Constitution means. The president is under an independent obligation to determine that his actions are legitimate. And, as a former professor of constitutional law, he is in a good position to explain why the NSA isn’t violating the amendment’s demand that the government describe the persons and things involved in its data grabs. My point has been reinforced further by the federal Privacy and Civil Liberties Oversight Board, which issued a majority report Thursday that emphasized the seriousness of the constitutional issues.
But alas, he simply refuses to talk about the 4th Amendment, asserting that the “challenge … is getting the details right.”
Worse yet, he gets the details wrong. To set the stage for his intervention, the president commissioned a blue-ribbon advisory committee of respected constitutional lawyers and former national security officials. This five-man panel conducted the most searching outside review of intelligence-gathering in 40 years, producing a remarkable 300-page report with 46 recommendations.
The president adopted only a few of them, often undermining those he did endorse. For example, he announced that the NSA must henceforth gain the approval of a judge on the secret Foreign Intelligence Surveillance Court before gaining access to an individual’s telephone records. But this court has served as a notorious rubber stamp because its members are national security conservatives all appointed by Chief Justice John G. Roberts Jr. To create a more diverse panel, the president’s advisory committee called for a statutory revision requiring Roberts to share his appointment power with his eight colleagues. But the president failed to endorse this proposal, transforming his initiative into a largely symbolic gesture.
The same is true on the international front. For the first time, he declared that the privacy concerns of foreigners are of fundamental importance, and this is undoubtedly important symbolically. But so long as Americans do not have serious protections, it is small consolation for foreigners to know that they will be treated equally in some, if not all, respects. Similarly, German Chancellor Angela Merkel and other allied leaders will be relieved to learn that their phones won’t be tapped, except in extraordinary circumstances. But this conditional assurance doesn’t apply to other members of their governments.
Obama has forfeited his claim to principled leadership on this issue, and others must take up the slack. Given the notorious impasse on Capitol Hill, Congress is unlikely to move quickly on the president’s proposals. But in this case, delay is a good thing. It will allow civil libertarians in both the Democratic and Republican parties to make surveillance a key issue of the 2014 elections, forcing candidates to take clear stands on the renewal of the Patriot Act. Even today, most observers believe that a majority of House members would vote no on an extension, but serious pressure on the campaign trail would create further momentum for principled reappraisal.
Western allies should also press for a formal intergovernmental agreement on key issues. Obama’s assurances are valid only until his term ends. A formal agreement, binding his successors, would transform his symbolic breakthrough into an enduring legacy.
Progress on these fronts would create a congenial environment for the Supreme Court, when appropriate cases begin to reach its docket.
It will take a lot of work from a lot of people to vindicate fundamental Western values. We can’t count on Obama to do the job for us.
Bruce Ackerman, a professor of law and political science at Yale, is the author of the forthcoming book, “We the People: the Civil Rights Revolution.”
So, if Obama is ordering the NSA to get warrants NOW…
… What legal device were they operating under before?
This is the time BOTH Republicans and Democrats stand reminded:
The Patriot Act has been authorized by BOTH Parties. Who wants to act?
As AP noted above, the GOP seems poised to act while Dems, as usual, cower.
Who holds whom accountable for the Constitutional Violations?
Obama’s DoJ going after members of the Administration’s Cabinet that run the NSA and CIA that lied to Congress and other internal players OR…
… Congress Impeaching members of the Administration?
I think we know how this is going to play out…
… There are elections to win so impeachment is “off the table”.
And seeing how the has been so politically corrupted these days to favor party politics of either ruling Party, I don’t see Holder out doing Fredo any time soon.
I happened to notice that the
SECRET court stays in place, deciding in
SECRET, laws and opinions about policies derived in
SECRET as to how said laws shall be applied to Americans in
SECRET.
Are we self governing people, yet?
What? Oh, Obama’s gonna let a few people in on the SECRET?
Guess the review of SECRET evidence will be as equally difficult to review as it was before…
200+ Million texts gathered daily…
“We don’t collect content” B.H.O.
Umm… texts ARE content.
When will President Obama issue the stop order for the Utah data collection center?
It may very well be true that Nazi Germany had a better handle on stopping any foreign or domestic terrorists than the government in place before 1933. You folks might recall that someone burned down the German Parliament in 1933. That building is called the Reichstag. The President at the time, not a Nazi, issued the Reichstag Fire Decree which did away with civil liberty safeguards and along came the Holocaust and WWII.
We have had our Reichstag Fire and it was called the Twin Towers. We have passed our nearly identical pieces of legislation beginning with the Patriot Act. All you Patriots out there in favor rise and shout Sieg Heil!
Nuff said.
Raff, You ask an interesting question. We know that was Hoover’s FBI modus operandi.
“Told Ya So: NSA’s Collection Of Metadata Is Screamingly Illegal”
http://www.forbes.com/sites/jennifergranick/2014/01/24/told-ya-so-nsas-collection-of-metadata-is-screamingly-illegal/
An older article, referenced in the Forbes piece:
http://www.nytimes.com/2013/06/28/opinion/the-criminal-nsa.html?pagewanted=all
Good news that the administration received a rebuff from the Oversight Board. We need to find out just who is paying who to keep this program going? Did the NSA get information on politicians and have they used it to buy silence?
The rnc on the same page as ACLU? I guess pigs can fly -Paul
Yep.
—–
“Three Things to Know About the Government Privacy Report on NSA Spying”
By Alex Abdo
http://www.slate.com/blogs/future_tense/2014/01/24/pclob_nsa_surveillance_report_three_things_you_need_to_know.html
(“Alex Abdo is a staff attorney in the ACLU’s National Security Project”. Posted on the ACLU’s website, as well.)
“There appears to be very little daylight between the RNC and progressive challengers of the phone records program, such as the ACLU.”
The rnc on the same page as ACLU? I guess pigs can fly
RNC condemns NSA spying in huge turnaround
01/24/14 01:00 PM—Updated 01/24/14 03:34 PM
By Benjy Sarlin
http://www.msnbc.com/msnbc/rnc-condemns-nsa-spying-shock-turnaround-0
Excerpt:
“Nevada Committeewoman Diana Orrock told msnbc over the phone that she introduced the resolution at the RNC’s summer meeting, but she wasn’t able to attract the necessary co-sponsors to advance it until now. The only major change she says she made to secure support was to drop the word “unconstitutional” from the title.
“I have to thank Edward Snowden for bringing forth the blatant trampling of our First and Fourth Amendment rights in the guise of security,” she said. “Something had to be said. Something had to be done.”
This is, to put it mildly, a new position for the Republican National Committee. When the New York Times revealed that the NSA had wiretapped American citizens without warrants in late 2005, the RNC used their 2006 winter meeting to strongly defend the program’s national security value.
“Do Nancy Pelosi and Howard Dean really think that when the NSA is listening in on terrorists planning attacks on America, they need to hang up when those terrorists dial their sleeper cells inside the United States?” Ken Mehlman, then RNC chair, told the RNC gathering in his keynote speech at the time.
This time around, per Orrock’s resolution, the RNC is declaring that “unwarranted government surveillance is an intrusion on basic human rights that threatens the very foundations of a democratic society and this program represents a gross infringement of the freedom of association and the right to privacy and goes far beyond even the permissive limits set by the Patriot Act.”
The RNC’s tidal shift reflects the reality that mass surveillance looks a lot more benign when your own party’s leader is in charge of the operation. But the resolution also is a sign of the increasing influence of the libertarian wing of the party, especially supporters of Ron Paul and his son, Rand Paul, who have made government overreach in pursuit of terrorists a top issue. Both Orrock and fellow Nevada Committeeman James Smack, who presented the resolution on her behalf, supported the elder Paul’s presidential campaign.
The resolution somewhat mangles the legal debate over NSA surveillance. The PRISM program mentioned by the RNC is tasked with monitoring foreign targets or conversations where only one of the parties is in the United States. Americans’ communications are sometimes collected “incidentally” and lawmakers have accused the agency of overreaching. But the “mass acquisition of Americans’ call details” in the resolution appears to refer to the NSA’s metadata collection, which is distinct from PRISM. The two programs derive their authority from different laws.
“What they lack in mastery of the subject matter, they make up in enthusiasm,” Stephen Vladeck, a professor of law at American University, said in an e-mail. “There appears to be very little daylight between the RNC and progressive challengers of the phone records program, such as the ACLU.””
And the NSA program isn’t the only “unlawful” one… As I’ve said before, there’s more to come.
CNN presumably didn’t interrupt our host today with any important breaking news:
“MSNBC interrupts Congresswoman for report on Justin Bieber”
http://youtu.be/GH68bSJXGE8
“Many Democrats continue to support Obama despite his comprehensive attack on privacy …” – JT
Perhaps they want to repeat the election of 2010 where Obama policies took them out of the House?
Dems are cowards. I am beginning to believe that Obama is a member of the “If the president does it, it is legal.” Club. NSA spying is illegal and unconstitutional but that doesn’t seem to matter to our “leaders” who have sworn an oath to protect and defend the Constitution from enemies both foreign and domestic. Sad, very sad.
Now where will we be will the so called patriot act is disembowled….. Will those working in furthance finally be prosecuted for acts of domestic terrorism……