Stopping Turnkey Tyranny: What The Obama Administration Can Do About The NSA On The Way Out

from the not-much,-but-something dept

Last week, I was a little unfair to our friends over at Fight for the Future in noting that it was too late for President Obama to "dismantle the NSA" as was suggested in a Time article written by FftF's awesome campaign director Evan Greer. I was focusing on why the President should have limited the NSA much more seriously earlier on (like way earlier...), but some interpreted it to mean that I was suggesting that FftF had only just jumped on the bandwagon to stop mass surveillance. That's clearly not true -- as it's been one of the leading voices in the fight to get the President to scale back mass surveillance since the group took on that issue many years ago.

My point was really just that waiting until now really limited Obama's options greatly. Even if he wanted to limit what a President Trump could do with the NSA, there's not much he can do that President Trump couldn't immediately roll back. That might be different if Obama had done a full scale surveillance reform program years ago, including much more comprehensive legislation than the USA Freedom Act.

But just because there isn't much he can do, that doesn't mean there's nothing he can do. Timothy Edgar, who served in both the Obama and George W. Bush administrations handing civil liberties/privacy issues related to the intelligence community (he was Obama's director of privacy and civil liberties for the White House's national security staff), has written a very interesting article laying out a number of things that the President can do on his way out the door that certainly won't stop the possibility (or even likelihood) of abuse of surveillance powers, but could at least make it somewhat more difficult.

Edgar picks up on a point that Ed Snowden made early on, that we've built a system that will enable "turnkey tyranny" in the wrong hands:
we delude ourselves if we think they have made the NSA tyrant-proof. In Snowden’s first interview from Hong Kong, warned against “turnkey tyranny.” One day, he said, “a new leader will be elected” and “they’ll find the switch.” With Donald Trump’s election, it is important that this warning not be proved prophetic. While the United States has a robust system of intelligence oversight—the strongest in the world—it still largely depends on the good faith of Executive Branch officials.
Edgar then goes through the things that Obama can do, but notes that they "require immediate action" if they're to have any impact at all. Some of them may seem like they're unlikely to have much of an impact -- such as reaffirming to the intelligence community their oath to the Constitution, and that what they do is supposed to be above politics, or even appointing new staff (which Trump could replace, but might not given the rumored staffing troubles he's been having) -- but could actually set a tone that at least acts as a minor buffer. Some of the other suggestions, though, could be more effective: committing to real transparency including declassifying a lot more information about surveillance programs, helping the Privacy and Civil Liberties Oversight Board finally get out its long awaited report on Executive Order 12333 and dropping the various attempts to use bogus "states secrets" defenses to various legal challenges to surveillance programs. All of those could be really useful.

Edgar also recommends pardoning Snowden, commuting Chelsea Manning's sentence and dropping or wrapping up whatever other leak investigation and excessive Espionage Act cases the DOJ has going. They won't necessarily stop a President Trump from using the same tools against other people, but it will take away gift wrapped cases that could set awful precedents in using the Espionage Act go go after public interest whistleblowers and reporters.

Edgar concludes by pointing out that if Obama believes in his own oaths to "preserve, protect and defend" the Constitution -- which are obviously still in effect -- he should do whatever possible to make sure that the next administration cannot completely ignore the Constitution, as many fear (and as Trump has suggested he'd like to do concerning the 4th Amendment and surveillance).
Obama has twice sworn an oath to “preserve, protect and defend” the Constitution. Normally, this means making it possible for the new president to fulfill his promises, even if you disagree with them. Given Trump’s autocratic tendencies, Obama’s oath entails a countervailing obligation. Obama’s last challenge is to do everything in his power to thwart Trump’s promises to abuse our constitutional liberties.
Again, these are all fairly limited moves, but they're what's left that can be done. Given how little Obama did in the almost eight years he's had, I won't hold my breath that he'll do any of these things, but lots of us will be watching closely, hoping that we're wrong about what we expect to happen.

Filed Under: donald trump, ed snowden, nsa, president obama, surveillance, timothy edgar


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  • identicon
    Anonymous Coward, 18 Nov 2016 @ 8:41am

    I'm not holding my breath that Obama will lift a finger to do anything in the next couple months. There's lots Obama should be doing on his way out about the NSA, about Manning and Snowden and others, about the DAPL, Marijuana and so on but so far he's acting like a spineless coward and doing abolutely nothing about any of it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Nov 2016 @ 9:12pm

      Re:

      Coward is the wrong term entirely. It implies he's afraid to act to remedy our surveillance state. In fact, he's directly responsible for continuing and worsening it.

      Perhaps you'd consider replacing "spineless coward" with "oath breaking traitorous shitbag". And yes, I am aware of the legal/constitutional definition of treason in the US, which is exactly why I did not use that word.

      The fact that Trump will be given a chance to continue Obama's abuses in no way makes Obama some sort of good guy that mysteriously didn't commit those abuses after all.

      reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 18 Nov 2016 @ 8:44am

    My point was really just that waiting until now really limited Obama's options greatly.

    Either he never wanted to do it and won't do it in his final moments or he simply can't do it. Let's not forget there is an establishment at work. Even Trump won't be able to do whatever lunacies he promised if they go against said establishment.

    Call it some conspiracy theory but after the institutional coup in Brazil it became fairly clear there are hidden forces at work. Even the key figures in the coup (Michel Temer for instance) are merely puppets. The system seems to be working for itself already. Maybe Obama actually tried to fulfill his promises of the "Yes, we can" speech but ended up with his face into that systemic wall.

    It doesn't matter who is the President. Things are going to remain the same (unless the people push back hard as we have seen at some points). Disagree? Tell me how different Obama was from Bush aside some 'smaller' efforts such as that health care act. I still believe change can happen even if it requires blood and suffering so I don't think I'm a total cynic. But we surely are living sad times.

    reply to this | link to this | view in chronology ]

  • icon
    timmaguire42 (profile), 18 Nov 2016 @ 8:52am

    Is there some reason to think you and Obama are on the same side vis a vis the NSA? Is there some reason to think President Trump (oh my!) is less on your side than President Obama?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Nov 2016 @ 8:53am

    This article makes no sense?

    So Obama, in the last 2 months of his 96 months as President is suddenly interested in freedom and limited surveillance? Frankly, if he suddenly takes an interest in limiting the surveillance state then you have to question why he suddenly wants to curtail it. What was he doing with it that he doesn't want Trump doing with it?

    Don't get me wrong, I want it curtailed as much as possible but thinking Obama is going to do anything is crazy.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Nov 2016 @ 9:13am

    Scrub Bluffdale with Bleachbit?

    If Obama starts right now, it might only take 10^9 years to completely scrub the data in Bluffdale...

    reply to this | link to this | view in chronology ]

    • identicon
      AC, 18 Nov 2016 @ 1:40pm

      Re: Scrub Bluffdale with Bleachbit?

      The NSA Bluffdale site is about a mile from Camp Williams which is an artillery training center. Much faster than BleachBit. No more than a mornings work.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Nov 2016 @ 12:14pm

        Re: Re: Scrub Bluffdale with Bleachbit?

        "The NSA Bluffdale site is about a mile from Camp Williams which is an artillery training center."

        Perhaps Hillary should have had Obama train that artillery on her glass ceiling?

        reply to this | link to this | view in chronology ]

  • icon
    Jon Renaut (profile), 18 Nov 2016 @ 9:19am

    That makes more sense

    At first glance I thought this was going to be a post about Thanksgiving

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Nov 2016 @ 9:47am

    Government is the answer!

    The thing this election has truly taught me is that a large portion of the population view the government as the answer. They want a large, powerful government. Of course they want that big government when they agree with that government. But then government becomes the beast and then t hey hate or fear it. Now you guys get to see why you should fear the government. They are not your friend.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Nov 2016 @ 2:56pm

      Re: Government is the answer!

      "Big government" is a term of propaganda invented by lobbyists seeking to curtail government regulators.

      The important issues cannot be reduced to a question of the "size" of government. They are about separation of powers, checks and balances, due process and rule of law, transparency and accountability. Government Representativeness and legitimacy.

      We need to stop talking in vague, divisive terms, such as left and right and liberal and conservative, socialism, liberalism etc.

      This is the language of identity politics, designed to divide-and-conquer, while we're all getting fucked. Talk about specific issues. Identity politics is a scam. Talk about specific issues.

      reply to this | link to this | view in chronology ]

      • icon
        Wendy Cockcroft (profile), 22 Nov 2016 @ 6:02am

        Re: Re: Government is the answer!

        ^This. A thousand times this!!

        I'm not in the least bit surprised to note that "government" is in the eye of the beholder and depends on what flavour of morality you prefer.

        Speaking of morality, if the present president had any, he'd be implementing the suggestions made in the article.

        reply to this | link to this | view in chronology ]

  • identicon
    I.T. Guy, 18 Nov 2016 @ 10:32am

    Give it a rest already. Barry turned a blind eye to the Constitution the second his hand was off the bible.

    Besides, he's checked out already. He's dreaming of all that speaking engagement money and how many celebrities he's going to hobnob with.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Nov 2016 @ 12:52pm

      Re:

      > Give it a rest already. Barry turned a blind eye to the Constitution the second his hand was off the bible.

      Yeah, I don't expect Obama to have sudden change of character either.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Nov 2016 @ 10:33am

    it wont matter what Obama does or doesn't do before leaving office, the UK is so far up the USA security forces asses it will give anything that the NSA or any other force asks for! the UK is now officially the worst democratic place on the planet because of the way the people have been thrown under the bus, just so GCHQ etc can spy on everyone, everywhere! and please remember, this is nothing to do with terrorism or child pornography and everything to do with various government members and their friends in high places, famous people and the rich hiding from the public the antics they get up to! add in that every government wants to know when the people are so pissed off at the piss taking governments etc do, that they feel the need to rebel, those same governments want to know who the ring leaders are, where the meetings and demonstrations will take place and what lengths they will have to go to to protect themselves, eg, arresting whoever they like, never to be seen again!! much like NAZI Germany and Communist Russia, from what i've read!! and millions died to stop that from happening! now our own governments are condoning the same mass surveillance of all types!!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Nov 2016 @ 12:29pm

    "Even if he wanted to limit what a President Trump could do with the NSA, there's not much he can do that President Trump couldn't immediately roll back."

    There you go incorporating pot shots again. The problem isn't Trump, the problem is any given presidency - including the current presidency. As you know, Obama has lied about the NSA and other matters since the inception of his presidency, as did his predecessors. Presidents are simply not actually going to do anything about it, it is not their job to to anything about it - it is their job to play fall-guy for the military-industrial regime behind the scenes (that doesn't change very much over time).

    reply to this | link to this | view in chronology ]

  • identicon
    I.T. Guy, 18 Nov 2016 @ 1:01pm

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Nov 2016 @ 1:02pm

    when he's really old, obama will get to revisit - every day - how stupid he was, is, and will be. like bill clinton, he threw away his chance to do some real good, not realizing what he was doing.

    reply to this | link to this | view in chronology ]

  • identicon
    Stosh, 18 Nov 2016 @ 2:45pm

    The problem for Obama

    he would have to admit how little oversight and how much illegal activity has been going on for the last 8 years, for him to say "you can't do that ANYMORE".

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Nov 2016 @ 3:07pm

    Obama helped undo the Church reforms by introducing the FISA Amendments Bill. He was also the bullshit sprayer in chief after Snowden exposed NSA criminality. No prosecutions were sought for any government actors. Whistleblowers and dissidents and journalists, however, were gone after with unprecedented zeal.

    Face it, if Obama isn't actual CIA, he might as well be. He's not going to do anything.

    There is so much power concentrated in the surveillance machine, and so many vested interests tied up in it, that it is going to take a massive scandal for it to be reconsidered. We are going to have to learn the hard way how unsustainable and offensive mass government surveillance is. Hopefully Trump will be the one to make the public understand this clearly (by getting caught flagrantly abusing it).

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Nov 2016 @ 9:17pm

      Re:

      Even with Trump's surveillance and torture cheerleading, I find it hard to imagine that he could be worse than Obama. Maybe more honest about it...

      reply to this | link to this | view in chronology ]

  • identicon
    Kronomex, 18 Nov 2016 @ 3:09pm

    What I think will happen as Obama leaves office is to do precisely nothing.

    reply to this | link to this | view in chronology ]

  • icon
    Groaker (profile), 19 Nov 2016 @ 6:35am

    What he could do is one thing, what he will do is nothing.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Nov 2016 @ 8:11am

    That is what they should/could do, but Obama won't. If going by his use of executive orders, and prosecution of whistle-blowers is any indication, if anything he will give us one more big 'fuck you' before leaving office.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Nov 2016 @ 11:04am

    "While the United States has a robust system of intelligence oversight—the strongest in the world"

    That, is the funniest comment of the week.

    reply to this | link to this | view in chronology ]


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