Even the George W. Bush administration, hardly a paragon of transparency, published online the draft text of the last similarly sweeping agreement, called the Free Trade Area of the Americas, in 2001.
But, of course, we all know the answer as to why. As they note, for all this secrecy, the administration has given tremendous access to "600 trade advisers" -- basically employees from big companies who get privileged access to the draft text and to negotiators that even Congress is denied. And it's pretty damn clear that the administration just doesn't want Congress to have much say in this, because Congress might actually do its job and represent the public's interest. In fact, the op-ed notes, former USTR Ron Kirk was pretty explicit about this:
So why keep it a secret? Because Mr. Obama wants the agreement to be given fast-track treatment on Capitol Hill. Under this extraordinary and rarely used procedure, he could sign the agreement before Congress voted on it. And Congress’s post-facto vote would be under rules limiting debate, banning all amendments and forcing a quick vote.
Ron Kirk, until recently Mr. Obama’s top trade official, was remarkably candid about why he opposed making the text public: doing so, he suggested to Reuters, would raise such opposition that it could make the deal impossible to sign.
But, you would think that the administration had learned something from the SOPA fight (and the ACTA fight in Europe) -- and it's that the public is not a fan of deals regarding copyright and patents that are negotiated by big business representatives in back rooms. Administration officials who think that TPP is different than SOPA because it let a few tech companies into the back room may find themselves mistaken.
Remember the debate in January 2012 over the Stop Online Piracy Act, which would have imposed harsh penalties for even the most minor and inadvertent infraction of a company’s copyright? The ensuing uproar derailed the proposal. But now, the very corporations behind SOPA are at it again, hoping to reincarnate its terms within the Trans-Pacific Partnership’s sweeping proposed copyright provisions.
From another leak, we know the pact would also take aim at policies to control the cost of medicine. Pharmaceutical companies, which are among those enjoying access to negotiators as “advisers,” have long lobbied against government efforts to keep the cost of medicines down. Under the agreement, these companies could challenge such measures by claiming that they undermined their new rights granted by the deal.
If the administration is betting that as long as they keep big business happy, that the public protests won't matter, they may be in for a surprise.
It's been quite incredible to see defenders of the surveillance state attack not just Edward Snowden for leaking information about the NSA's surveillance efforts, but also go after the reporters who broke the various stories concerning what he leaked. While many of the attacks have been focused on Glenn Greenwald, the other journalist who has access to Snowden is the Washington Post's Bart Gellman, and apparently it's his turn to be attacked for doing a good job in reporting. The attacker, in this case, is Stewart Baker, the former Assistant Secretary of Homeland Security and former General Counsel for the NSA. He wrote an incredible attack on Gellman, arguing that he has somehow crossed the despicable line from "journalist" to "advocate" in his reporting on Snowden's leaks.
Baker and Gellman had a conversation via email concerning why Gellman chose to publish which information when, and as part of his response, Gellman pointed out -- quite rightly -- that in one of the recent leaks, concerning how the NSA goes about "minimizing" the likelihood that Americans are profiled, it needs to be acknowledged that the NSA is collecting tons of data on Americans and that can have a real impact -- an impact that the NSA refuses to acknowledge. Gellman writes convincingly on this topic, and Baker's response is to ignore the entire substance of Gellman's argument, to condescendingly claim that this is no longer journalism:
Maybe it's just me, but I don't think anyone can read that without wondering whether Bart Gellman has slipped from journalist to advocate. And from there it's a short step to wondering whether he suppressed the guidelines in his earlier story because they didn't fit his preferred narrative. Somehow they were not worth disclosing when they might have blunted privacy concerns but they had to be disclosed once "they seem[ed] to demonstrate that the president’s words are untrue." Put another way, it seemed better to hold the truth back until it could be used to sandbag the adversary.
Gellman shot back, via Twitter a key point that is all too often ignored:
What @stewartbaker overlooks is that my advocacy is for open debate of secret powers. That's what journalists do
Journalists have always been advocates. They're supposed to be advocates for openness and transparency, explaining to the public what others are up to which they should know about. To argue that Gellman's reporting is somehow less than worthy because he's advocating for open debate on secret programs of government surveillance is really quite pitiful on Baker's part. Once again, it suggests that the defenders of this kind of surveillance cannot and will not debate the merits of the program in public, instead resorting to what appears to be petty name calling, rather than substantive discussion about this program they love so much.
Facing continued criticism over the NSA surveillance scandal, President Obama went on Charlie Rose's interview show for a "friendly" conversation in which Rose failed to really ask any serious followups on a whole variety of questions.
The interview starts out talking about a few other subjects, and then first mentions the NSA stuff as it relates to Chinese online attacks.
CHARLIE ROSE: Speaking of pushing back, what happened when you pushed back
on the question of hacking and serious allegations that come from this
country that believe that the Chinese are making serious strides and
hacking not only private sector but public sector?
BARACK OBAMA: We had a very blunt conversation about cyber security.
CHARLIE ROSE: Do they acknowledge it?
BARACK OBAMA: You know, when you’re having a conversation like this I
don’t think you ever expect a Chinese leader to say "You know what? You’re
right. You caught us red-handed."
CHARLIE ROSE: You got me. Yes.
BARACK OBAMA: We’re just stealing all your stuff and every day we try to
figure out how we can get into Apple --
This exchange is pretty silly, given that it now seems clear that the US is perhaps just as, if not more, aggressive in its proactive hacking programs against other countries. As for "getting into Apple," considering how much of Apple's actual manufacturing is done in China, it's not clear they really need to hack into the company, or that they would get much benefit from doing so. The two talk a bit more about that, and Obama reiterates the whole "China wants Apple's secrets" bits, insisting that's entirely unrelated to NSA stuff (even though it's clear that the NSA itself does similar economic espionage, raising questions about whether or not it's really all that unrelated). There's a bit of preamble, in which the President points out that before all of this happened he had obliquely hinted at revisiting our surveillance infrastructure before all this came out, and there's another random aside about the TSA, before they get to the point.
BARACK OBAMA: The way I view it -- my job is both to protect the American people and to
protect the American way of life which includes our privacy. And so every
program that we engage in, what I’ve said is let’s examine and make sure
that we’re making the right tradeoffs.
Now, with respect to the NSA, a government agency that has been in the
intelligence-gathering business for a very long time --
CHARLIE ROSE: Bigger and better than everybody else.
BARACK OBAMA: -- bigger and better than everybody else and we should take
pride in that because they’re extraordinary professionals. They’re
dedicated to keeping the American people safe. What I can say
unequivocally is that if you are a U.S. person the NSA cannot listen to
your telephone calls and the NSA cannot target your e-mails.
CHARLIE ROSE: And have not?
BARACK OBAMA: And have not. They can not and have not -- by law and by
rule. And unless they -- and usually it wouldn’t be they, it would be the
FBI -- go to a court and obtain a warrant and seek probable cause. The
same way it’s always been. The same way when we were growing up and we
were watching movies, you know, you wanted to go set up a wiretap, you’ve
got to go to a judge, show probable cause and then the judge --
CHARLIE ROSE: But have any of those been turned down? All the requests to
FISA courts, have they been turned down at all?
BARACK OBAMA: Let me finish here, Charlie, because I want to make sure --
this debate has gotten cloudy very quickly.
CHARLIE ROSE: Exactly.
Way to ask those tough questions, Charlie. Yay! The NSA is "bigger and better!" Whoo!
BARACK OBAMA: So point number one: if you’re a U.S. person then NSA is not
listening to your phone calls and it’s not targeting your e-mails unless
it’s getting an individualized court order. That’s the existing rule.
There are two programs that were revealed by Mr. Snowden -- allegedly,
since there’s a criminal investigation taking place and that caused all the
ruckus. Program number one called the 2015 program. What that does is it
gets data from the service providers -- like a Verizon -- in bulk. And
basically you have call pairs. You have my telephone number connecting
with your telephone number. There are no names, there’s no content in that
database. All it is, is the number pairs, when those calls took place, how
long they took place. So that database is sitting there.
Now, if the NSA through some other sources -- maybe through the FBI, maybe
through a tip that went to the CIA, maybe through the NYPD -- gets a number
that -- where there’s a reasonable, articulable suspicion that this might
involve foreign terrorist activity related to al Qaeda and some other
international terrorist actors -- then what the NSA can do is it can query
that database to see does this number pop up. Did they make any other
calls? And if they did those calls will be spit out, a report will be
produced, it will be turned over to the FBI. At in no point is any content
revealed because there’s no content in the database.
CHARLIE ROSE: So I hear you saying I have no problem with what NSA has
BARACK OBAMA: Well, let me finish, because I don’t. So what happens is
then the FBI -- if, in fact it now wants to get content, if, in fact, it
wants to start tapping that phone -- it’s got to go to the FISA court with
probable cause and ask for a warrant.
CHARLIE ROSE: But has FISA court turned down any request?
BARACK OBAMA: Because -- first of all, Charlie, the number of requests are
surprisingly small, number one. Number two -- folks don’t go with a query
unless they’ve got a pretty good suspicion.
None of that actually explains why this program is necessary. If there's a phone number that the NSA or the FBI gets that is of interest, then they should be able to get a warrant or a court order and request information on that number from the telcos. None of that means they should be able to hoover up everything.
Then we get to the "transparency" question.
CHARLIE ROSE: Should this be transparent in some way?
BARACK OBAMA: It is transparent, that’s why we set up the FISA court. The
whole point of my concern before I was president -- because some people say
well, Obama was this raving liberal before, now he’s Dick Cheney. Dick
Cheney sometimes says, "Yes, you know, he took it all, lock stock and
barrel." My concern has always been not that we shouldn’t do intelligence
gathering to prevent terrorism but rather are we setting up a system of
checks and balances?
Checks and balances are not transparency. A secret court with a secret interpretation of the law for a secretive intelligence agency is not transparency.
So, on this telephone program you have a federal court with independent
federal judges overseeing the entire program and you’ve got Congress
overseeing the program. Not just the intelligence committee, not just the
judiciary committee but all of Congress had available to it before the last
reauthorization exactly how this program works.
And yet, many in Congress who were familiar with it, tried to speak out against it and were told by others that what they were saying wasn't true, and now many in Congress claimed they were unaware of the extent of the surveillance. Yes, some of the onus is on a failed Congress that deliberately chose to remain ignorant, but to argue that this is somehow either transparent or "oversight" is a complete and utter joke. So you'd assume that Charlie Rose, distinguished journalist, would point some of that out. But he doesn't. The President continues.
Now one last point I want to make because what you’ll hear is people say
"OK, we have no evidence that it has been abused so far," and they say
"Let’s even grant that Obama’s not abusing it. There are all these
processes, DOJ is examining it, it’s being audited, it’s being renewed
periodically, et cetera.
The very fact that there’s all this data in bulk it has enormous potential
for abuse because they’ll say, you know, "when you start look at metadata
even if you don’t know the names you can match it up. If there’s a call to
an oncologist and if there’s a call to a lawyer and you can pair that up
and figure out maybe this person is dying and they’re writing their will
and you can yield this information."
All of that is true. Except for the fact that for the government under the
program right now to do that it would be illegal. We would not be allowed
to do that.
There are two issues here: first, the potential for abuse is very very real. Both the NSA and the FBI have a long history of being caught abusing surveillance capabilities. In just the past few years alone, the FBI has been shown regularly to have violated rules on surveillance with things like national security letters. So just saying "but that would be illegal" isn't particularly comforting.
The second, larger point, skipped over entirely by the President (and Rose) is whether or not this should be legal in the first place. The fact is that we have a secretive FISA court coming out with a secret interpretation of the law that very few people have seen. Ssome of those who have seen the interpretation say it contradicts the plain wording of the law that everyone sees. You can't just say "this is legal" and be done with it. There are significant questions about whether or not this interpretation really is legal -- and there's been no way to test it, because the secretive nature of the whole thing meant that no one could prove they had standing to challenge it, and then the government would try to get out of any lawsuit by claiming "national security" as an excuse.
CHARLIE ROSE: So what are you going to change? Are going to issue any
kind of instructions to the director of National Intelligence, Mr. Clapper,
and say "I want you to change it at least in this way"?
BARACK OBAMA: Here’s what we need to do. But before I say that -- and I
know that we’re running out of time but I want to make sure I get very
clear on this because there’s been a lot of misinformation out there.
There’s a second program called the 702 program. And what that does is
that does not apply to any U.S. person, has to be a foreign entity, it can
only be narrowly related to counterterrorism, weapons proliferation, cyber
hacking or attacks and a select number of identifiers, phone numbers, e-
mails, et cetera, those and the process has all been approved by the
courts, you can send to providers the Yahoos or the Googles and what have
you. And in the same way that you present essentially a warrant and what
will happen then is you there can obtain content but again that does not
apply to U.S. persons and it’s only in these very narrow bands.
So, you asked, what should we do?
CHARLIE ROSE: Right.
BARACK OBAMA: What I’ve said is that what is a legitimate concern,
legitimate critique is that because these are classified programs, even
though we have all these systems of checks and balances, Congress is
overseeing it, federal courts are overseeing it, despite all that the
public may not fully know and that can make the public kind of nervous
right. Because they say, "Well, Obama says it’s OK or Congress says it’s
OK. I don’t know who this judge is, I’m nervous about it."
What I’ve asked the intelligence community to do is see how much of this we
can declassify without further compromising the program, number one. And
they’re in that process of doing so now. So that everything that I’m
describing to you today -- people, the public, newspapers, et cetera, can
look at because frankly people are making judgments just based on these
slides that have been leaked they’re not getting the complete story.
Number two, I’ve stood up a privacy and civil liberties oversight board
made up of independent citizens, including some fierce civil libertarians.
I’ll be meeting with them and what I want to do is to set up and structure
a national conversation not only about these two programs but also about
the general problem of these big data sets because this is not going to be
restricted to government entities.
So, in summary, he's asking the very people who have been keeping all this stuff secret all along, and claiming that any leak at all will kill Americans, to suddenly declassify some of it? Yeah, that'll work.
There's a little bit more after that about how the President "feels" to be compared to Bush/Cheney and a few other things, but nothing much of substance. None of it seems particularly reassuring other than "trust us, we're not as bad as you think we are" without ever acknowledging how frequently the government has abused those privileges in the past, and without recognizing that technology has enabled them to do significantly more surveillance today than ever before.
In the wake of the NSA scandal leaks, there have been several examples of government officials and law enforcement coming out to state both that the program is necessary and that its existence ought never have been revealed. Those who espouse the latter often indicate that, as a result, Edward Snowden is some measure of a traitor, and in some cases so are members of the press that reported on the revelations. Not all former and current government folks are in that camp, of course, but those that are not typically argue the polar opposite: that the NSA program is either unconstitutional or unnecessary. Those are sentiments I happen to agree with, but there is a refreshingly original third course of thought.
“I don’t think it ever should have been made secret,” Kelly said yesterday, breaking ranks with other US law-enforcement officials. “I think the American public can accept the fact if you tell them that every time you pick up the phone, it’s going to be recorded and it goes to the government. I think the public can understand that. I see no reason why that program was placed in the secret category. Secondly, I think if you listen to Snowden, he indicates that there’s some sort of malfeasance, people . . . sitting around and watching the data. So I think the question is: What sort of oversight is there inside the [National Security Agency] to prevent that abuse, if it’s taking place?”
Now, the easy reaction to this is to write off Kelly's opinion that the majority of Americans would be okay with data surveillance as long as we were well informed about it. After all, stop and frisk is fairly above board, and people still hate it. But the point is an important one with real implications on how democracy is supposed to work versus how it actually does work in America today.
By that I mean whether secretive programs run by the government that impact the majority or all of Americans can be undertaken without the consent of the governed. Step back a moment from Kelly's assertion that the public would be on board with the program if we had known about it all along. Isn't the better point to be taken from his statement that we should at least have been given the opportunity to find out? As a member of a representative democracy, if my fellow Americans were indeed informed and signed off on this program, I have to accept it, whatever my dissenting views. If the government was above board on the checks and balances in the program, they might have a good PR case. But that process was never given a chance to incubate. Instead, broadly worded, vague legislation birthed secretive policies, subject to secretive committees and secretive courts, and it was only by the providence of a humanitarian leaker that the public had any inkling of what was going on. That isn't how the American concept is supposed to function.
And now we'll never know whether Kelly is right or not, because the experiment that could have occurred has been foiled. Any complacency by the public now can be written off as apathy born of anger and mistrust. Any dissent is tainted by the same as a result of the secrecy of the program. The method by which the NSA spy program was both initiated, continued, and finally revealed is almost a perfect counter example to the democratic process. I fear that our founding fathers, those men of the enlightenment so often referenced by the career politicians of the day, would be calling for revolution once more.
from the i-prefer-not-to-be-governed-by-the-insane dept
Last week, we thought it was ridiculous enough that the DoD (of which the NSA is a key part) had reminded all staff that they were not allowed to look at any of the leaked NSA documents, even if they came across them in the press. If they spotted any, they had to alert various security officials and delete what they saw "by holding down the SHIFT key while pressing the DELETE key for Windows-based systems and clearing of the internet browser cache." As we noted at the time, pretending these documents aren't public does not make much sense, and suggests a government agency that does not want to live in reality.
Now we can add Congress to that list as well. Senate staffers have now been told not to look at the leaked documents, and similarly that they need to "contact the Office of Senate Security for assistance" if they happened across any of the documents accidentally. Once again, this is insane because it means Congress should deny reality and pretend to live with its collective head in the sand -- which is no way to govern.
However, the much bigger deal is that if this were actually obeyed (and it's not), this would effectively hinder Congress's required duty of oversight of the NSA to prevent abuse. If the very Congress that's supposed to monitor the NSA's practices, and which has already been directly lied to by the intelligence community is now being told that it can't even look at the leaks to understand what's going on, how the hell are they supposed to do their oversight job?
Furthermore, last week, we pointed to some video of Rep. Grayson on the House floor giving an impassioned speech about the leaks... and displaying many of the leaked NSA docs blown up on an easel. If Congress isn't allowed to look at them, but Congress is also presenting them on the floor of the House and broadcasting live on C-SPAN and YouTube for the world to see... was the rest of Congress just supposed to avert its eyes while Grayson spoke? Is that a reasonable world?
Last week, we noted that Google had publicly requested from the DOJ that it be allowed to reveal information about the FISA surveillance requests it gets, and put them in its well-respected transparency report. Facebook, Microsoft and Twitter quickly followed with similar requests. Late Friday, the DOJ "gave permission," but in perhaps the most useless way possible. Facebook was the first to post the data that the DOJ allowed it to post, and you might immediately see the problem:
As of today, the government will only authorize us to communicate about these numbers in aggregate, and as a range...
For the six months ending December 31, 2012, the total number of user-data requests Facebook received from any and all government entities in the U.S. (including local, state, and federal, and including criminal and national security-related requests) – was between 9,000 and 10,000. These requests run the gamut – from things like a local sheriff trying to find a missing child, to a federal marshal tracking a fugitive, to a police department investigating an assault, to a national security official investigating a terrorist threat. The total number of Facebook user accounts for which data was requested pursuant to the entirety of those 9-10 thousand requests was between 18,000 and 19,000 accounts.
Right. So you may notice that this tells us absolutely nothing about the FISA requests. Because the only way that it could actually reveal anything was to bury them in with every other possible type of request. Facebook did, properly, point out that this wasn't really all that transparent:
This is progress, but we’re continuing to push for even more transparency, so that our users around the world can understand how infrequently we are asked to provide user data on national security grounds.
Here is what the data shows: For the six months ended December 31, 2012, Microsoft received between 6,000 and 7,000 criminal and national security warrants, subpoenas and orders affecting between 31,000 and 32,000 consumer accounts from U.S. governmental entities (including local, state and federal).
Microsoft, too, noted the limitation that the DOJ gave them:
We are permitted to publish data on national security orders received (including, if any, FISA Orders and FISA Directives), but only if aggregated with law enforcement requests from all other U.S. local, state and federal law enforcement agencies; only for the six-month period of July 1, 2012 thru December 31, 2012; only if the totals are presented in bands of 1,000; and all Microsoft consumer services had to be reported together.
There is one interesting tidbit:
We have not received any national security orders of the type that Verizon was reported to have received that required Verizon to provide business records about U.S. customers.
Considering that this surveillance program -- the so-called "business records" search, which comes from Section 215 of the Patriot Act with a still-secret interpretation by the FISA Court that appears to allow blanket requests for pretty much all data -- is the much more serious issue, it's nice to see Microsoft being able to say that it has received no such orders.
Google and Twitter also both received the same "permission," but both quickly realized that this was not transparency at all. Lumping in FISA requests with everything else does absolutely nothing to reveal the extent of those FISA requests. In fact, it obfuscates them:
“We have always believed that it’s important to differentiate between different types of government requests,” a Google spokesperson said in a statement. “We already publish criminal requests separately from National Security Letters. Lumping the two categories together would be a step back for users. Our request to the government is clear: to be able to publish aggregate numbers of national security requests, including FISA disclosures, separately.”
Twitter responded with a simple tweet (you expected more?) from legal director Ben Lee, saying:
We agree with @Google: It's important to be able to publish numbers of national security requests—including FISA disclosures—separately.
So, once again, we have the federal government pretending to be transparent, when it's really not. It's only trying to hide the actual number of FISA requests and the number of users impacted. Frankly, this whole demand for excess secrecy over these things makes no sense at all. What could we possibly be "alerting our enemies" to if there were broad general numbers of the number of FISA requests that were sent to Google, Twitter, Facebook and Microsoft? Sure, the actual information requested should remain secret. But the number of requests? That makes no sense at all.
It would appear that new Senator Elizabeth Warren is on the side of transparency when it comes the Trans Pacific Partnership (TPP) agreement. Sometimes it feels like Senator Wyden is the only one who cares about this issue, so it would be nice to have someone else step in as well. Following USTR nominee Michael Froman's Senate hearings, Warren has sent a letter to the White House asking for its negotiating position on the TPP. The key point, which should be repeated over and over again is the following:
I have heard the argument that transparency would undermine the Administration's policy to
complete the trade agreement because public opposition would be significant. If transparency would lead to widespread public opposition to a trade agreement, then that trade agreement should not be the policy of the United States. I believe in transparency and democracy and I think the U.S. Trade Representative (USTR) should too.
This is actually in direct response to claims from the former USTR, Ron Kirk, who pointed to a failed trade agreement -- the Free Trade Area of the Americas -- which was handled in a much more open fashion as support for why the TPP must remain secret. But the reasoning there, as Senator Warren correctly notes, is ridiculous. If the trade agreement failed because the public opposed it, that should be seen as a good thing, because the government was stopped from going against the will of the people.
Warren's overall letter is great. Here's another snippet and the full text is embedded below.
President Obama made transparency and inclusion a centerpiece of his election, and in many
areas, he has opened the doors of government to ensure that the product of governing can withstand
public scrutiny and is not the product of back-room deal making.
While I have no doubt that the President's commitment to openness is genuine, I am concerned
about the Administration's record of transparency regarding the Trans-Pacific Partnership. Specifically,
I am troubled by the Administration's unwillingness to provide to the public the composite bracketed
text relating to the negotiations. As you know, the composite bracketed text includes not only proposed
language from the United States but also proposed language from other countries. These different
proposals are brought together in one text, and negotiations focus on ironing out the various proposals
and getting to agreement on common language. The lack of transparency in this area is troubling
because, as you know, the bracketed text serves as the focal point for actual negotiations. I appreciate
the willingness of the USTR to make various documents available for review by members of Congress,
but I do not believe that is a substitute for more robust public transparency.
Sen. Ron Wyden (D-Ore.) raised the extraordinary secrecy shrouding the Obama administration's trade negotiations to date. Wyden has blasted USTR's incredible decision to keep the negotiating text of the sweeping TPP pact, affecting everything from food safety to Internet freedom, hidden from the U.S. public and even from members of Congress. Not even the Bush administration attempted that degree of secrecy. Wyden asked, "If confirmed, will you make sure that the public...gets a clear and updated description of what trade negotiators are seeking to obtain in the negotiations so that we can make this process more transparent in the future?" Wyden further asked that negotiating texts be placed online. Froman responded by saying he agrees with the principle of transparency. But instead of committing to a meaningful fulfillment of that principle by releasing the TPP text online (as done under Bush), he reiterated USTR's general desire to seek input from "stakeholders." It is of course difficult for stakeholders to provide meaningful input if they cannot see the thing in which they have a stake.
Of course, as we've explained many times, transparency has nothing to do with seeking input from stakeholders, but the opposite: providing information to the public. Listening is important to understand what's going on, but that's not transparency.
It's pretty simple: information flowing into the USTR is not transparency. Information flowing to select interests is not transparency. Releasing information to the public is transparency. How does the USTR continually get away with pretending otherwise?
Separately, as the article linked above notes, Froman refused to comment on whether he supported investor-state dispute resolution mechanisms that are showing up in trade agreements and which, as we've been highlighting, are so dangerous. He'd only say it's a matter worthy of discussion. But then refused to discuss it. Which says a lot. He also claimed he was going to continue to seek fast track authority, which they renamed Trade Promotion Authority -- which basically forces Congress to sign away its right to oversee what's in TPP. These are all very worrisome statements, because it means we're getting more of the same: a USTR that wants to make an end-run around the public and Congress, but which is driven by the interests of some of the largest companies.
As the NSA and the administration continue to seek to spin the fallout from the leaks that revealed some of the overreaching surveillance efforts of the NSA, what's incredible is how self-contradictory the statements are, even when coming from the same source. The go-to defender of the program has been Director of National Intelligence James Clapper, who has tried arguing both that the leaks and these programs are no big deal and that they present a grave danger to intelligence operations. It's incredible.
First, there's playing it down as no big deal:
In a statement issued Saturday, Director of National Intelligence James R. Clapper Jr. described PRISM as “an internal government computer system used to facilitate the government’s statutorily authorized collection of foreign intelligence information from electronic communication service providers under court supervision.”
“PRISM is not an undisclosed collection or data mining program,” the statement said.
Hmm. So if it's no big deal, and all they're doing is facilitating statutorily authorized collection of data, why all the secrecy? Why not be transparent about all of that? And, also, if it's just keeping track of all the legally obtained stuff, why then would he also say the following:
“For me, it is literally – not figuratively – literally gut-wrenching to see this happen because of the huge, grave damage it does to our intelligence capabilities,” Clapper told NBC News’s Andrea Mitchell.
And later, he claimed that the leaker (this was before Snowden revealed himself) had "chosen to violate a sacred trust for this country" and that the leaks "affects the safety and security of this country."
I can't see any way to put together the earlier statements with the later statements that makes any sense at all. If all they were doing is analyzing statutorily authorized data, then there shouldn't be any concern. We'd expect the NSA to have a computer system to do exactly that, right? So... um... why is it damaging to the nation and putting us all at risk? It seems more likely that the truth is that what was revealed wasn't just a simple system for collecting data, as we can see, but rather just how much information the NSA is gathering up into its huge databases. Furthermore, the idea that this puts us in danger is, frankly, insulting. Most folks involved in terrorist activity already assume their phone calls are being tracked, so it's not like this is going to change their tactics.
The EU trade Commissioner, Karel De Gucht, was a driving force behind ACTA, and apparently he's learned nothing about why ACTA failed so spectacularly in Europe. MEP Christian Engstrom pointed out to De Gucht that a big part of the reason why ACTA failed was the lack of transparency, and asked him to be more transparent with TAFTA (the Trans Atlantic Free Trade Agreement, but which many are calling TTIP -- for Transatlantic Trade and Investment Partnership). De Gucht's response was to insist that he cannot negotiate transparently, and then to outright mock Parliament for suggesting that it has a role in the negotiations.
... on the subject of openness, I have no problem saying what we are doing and what we want to achieve and, when not speaking in public, how I want to achieve this. But you are all politicians. So you should know – and I think you do know – that you cannot negotiate openly. You do not do that in your parties either; you do not do that in your constituencies. You need to focus – and yes, of course we have to report on what we are doing, explaining why we are doing things and why we are making some concessions; we will have to make concessions in the course of these negotiations. But you need a certain degree of confidentiality in negotiations. You also need it because your counterpart is asking for it; if not, you cannot negotiate.
It is interesting that it seems that there is a copy of one of the drafts of the negotiating mandate. So what? It is a draft. The Presidency has, of course, to make sure that they come to an agreement within the Council, so they put forward possible ways to get out of any difficulties that we have to deal with. Immediately, very vocal Members of this Parliament say that this is a scandal and that we are traitors and cannot be trusted. Of course you can trust me, because in the end you can say ‘No’. You have done so in the past. You said ‘No’ to ACTA: I am still not convinced that it was the right choice, but you decided to do so and that was how it was. You have the final word.
But a parliament is not created to negotiate. It is not its job. I think I have been in a parliament for a longer time than most of you –25 years. Maybe there are some who have been in a parliament as long – Mr Brok has already left, but he has certainly been in a parliament for more than 25 years – but not very many. I have never sought to negotiate an agreement from within a parliament because it simply does not work.
What you have to do – and you do it in an eloquent way – is indicate the important points that you want to mention, that you want me to look at and which you will question me about. You will scrutinise me and in the end will vote against me if I do not do that. But a parliament cannot negotiate, because a parliament only exists as a body when it votes. Outside of voting you take up individual positions. You cannot negotiate with 20, 30 or 50 different positions. That is not possible. You need to negotiate on the basis of a mandate, and then, of course, you have to demonstrate that you have been following your mandate.
Of course, MEPs weren't asking to let Parliament negotiate the deal, just for some transparency in what was being negotiated in the public's name. De Gucht's answer is misleading. Plenty of international agreements are negotiated with significantly greater transparency than what happened in ACTA, what's happening now with TPP and what's likely with TAFTA/TTIP. Governments can and should reveal the basic things they are negotiating for, to allow for some level of public comment. But that's not what happens. Things are negotiated in secret, in backrooms, with the help of industry lobbyists, and at the end we're given a "take it or leave it" document, which then (in most cases) is rammed through with little debate. It's the opposite of democracy.
Of course, ACTA showed that the public can rise up and take a stand against this, and Engstrom points out that if they did it for ACTA, they can do it again:
The positive thing about the whole ACTA affair was that there are now hundreds of thousands of European citizens who have, at least once, been demonstrating on the streets of various European cities against the trade agreement. There are lots of citizens now who take an interest in these agreements.
This is a very positive thing, but by insisting on the same kind of secrecy – only handing out secret documents to the members of the INTA Committee – the Commission is setting itself up for the same kind of failure. I would urge you to re-think this and become transparent.
It appears that De Gucht has decided not to re-think this, and to take the position that the ACTA response was an aberration. I'm sure that will play well with all the people who fought against ACTA.