Posted on Techdirt - 12 September 2013 @ 6:56am
Since details of the NSA's surveillance programs started coming to light in early June -- and President Obama's been forced to publicly answer for its activities -- the president has repeatedly reminded us that he came into office with a "healthy skepticism about these programs." But, after careful evaluation, he determined "that on, you know, net, it was worth doing."
Some of these programs I had been critical of when I was in the Senate. When I looked through specifically what was being done, my determination was that the two programs in particular that had been at issue, 215 and 702, offered valuable intelligence that helps us protect the American people and they're worth preserving. (From his August 9th Press Conference.)
It's a rhetorical strategy intended to win his critics' trust by demonstrating that he understands our concerns because he used to share them. The message he wants us to take away is: if we had been in his shoes and saw the evidence he saw when he got into office, we would have signed off on these programs too.
Well, this week we got a glimpse of some of the evidence he saw when he assumed office -- at least in connection to the NSA's collection of U.S. phone call records -- and, it begs the question, what exactly changed his mind about the NSA's domestic surveillance programs? What did the President see that led him to the conclusion that everything he had previously said on the topic was wrong because allowing the NSA to collect everyone's phone call records really is a constitutionally-supported, great idea?
Because, according to the documents the ODNI released this week, when President Obama took office, the NSA's "telephony metadata" program wasn't getting stellar reviews. In fact, we now know that days prior to Obama’s inauguration, the NSA reported that it had repeatedly violated the court-ordered rules limiting its use of the data it was collecting. A little over a month later, a judge on the Foreign Intelligence Surveillance Court found that, "Since January 15 [five days before Obama's inauguration] it has finally come to light that the FISC's authorizations of this vast collection program have been premised on a flawed depiction of how the NSA uses" the phone call data.
Not only had the Intelligence Community been misrepresenting its program to the court, the judge, Reggie B. Walton, went on to write
The minimization procedures proposed by the government in each successive application and approved and adopted as binding by the orders of the FISC have been so frequently and systemically violated that it can fairly be said that this critical element of the overall BR regime has never functioned effectively.
To approve such a program, the Court must have every confidence that the government is doing its utmost to ensure that those responsible for implementation fully comply with the Court's orders. The Court no longer has such confidence.
The judge also implied that -- other than hypothetical examples of how this data might provide intelligence of "immense value to the government" -- the government had yet to provide the court with concrete evidence that the program was actually providing that value.
This program has been ongoing for nearly three years. The time has come for the government to describe to the Court how, based on the information collected and analyzed during that time, the value of the program to the nation's security justifies the continued collection and retention of massive quantities of U.S. person information.
Again, Judge Walton reached these conclusions based on evidence that was available to him at the very same time that I imagine President Obama and his team were evaluating these programs. Plus, I'm assuming the president considered Judge Walton's opinion in his evaluation, right?
So, what exactly convinced President Obama that this was "worth doing?" Because as the president explained last month, the prospect that something could happen isn't the same as actual evidence that it has or ever will.
Jennifer Hoelzer is a long-time Congressional staffer with tremendous expertise on national security issues. This story is cross-posted from from her site, with permission, but you should check out her site for more insightful analysis of national security issues.
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Posted on Techdirt - 6 September 2013 @ 10:20am
Many of you quite enjoyed former Ron Wyden deputy chief of staff, Jennifer Hoelzer's post a few weeks ago, and we're bringing you another post by her, this one crossposted from her own blog where she's going to be covering these kinds of issues. We encourage you to head over there now and to visit it often.
The Director of National Intelligence, James Clapper, would very much like you to view the previously classified documents his office released last month as proof that the National Security Agency’s secret surveillance activities have not only been subjected to vigorous oversight, they have taken it seriously.
I mean, the Office of the Director of National Intelligence (ODNI) didn’t just declassify the long sought Foreign Intelligence Surveillance Court (FISC) opinion that indicated the NSA’s foreign intelligence collection activities haven’t been as problem free as the administration’s suggested.
No, the ODNI – not exactly known for its fondness for declassification - also declassified the government’s response to the FISC opinion, and the FISC opinion on the government’s response to the original FISC opinion, and the minimization procedures the NSA uses “in connection with acquisitions of foreign intelligence information pursuant to Section 702” and the “Semi-Annual Assessment of Compliance with the Procedures and Guidelines issued pursuant to Section 702” plus all of the previously classified testimony the Administration gave to Congress discussing 702, including a memo that the administration had previously made available to members of Congress in which they described FISC’s having raised concerns about the Administration’s collection activities as an example of “how well the existing oversight regime works.” (An ironic choice of words given that they were being used to describe a legal opinion in which a federal judge used a footnote to smack the Administration for substantially misrepresenting the “scope of a major collection program”)
And, if all of that information wasn’t enough to convince you that FISC’s concerns about the Administration’s compliance with Section 702 of the FAA were nothing when compared to the extraordinary efforts the government employs to ensure that these programs are conducted with respect to the rule of law, the Director of National Intelligence himself wrote a three page cover letter to accompany the release of these documents. The letter acknowledged that the court had determined that:
For highly technical reasons…the minimization procedures proposed by the government as applied to a discrete subset of NSA’s upstream collection of electronic communications did not satisfy certain statutory requirements in FISA and that the targeting and minimization procedures as applied to the same subset of communications did not satisfy Fourth Amendment requirements.
But – if you followed that -- fear not! Because, “In the end,” the DNI wrote:
the Government satisfied the concerns raised by the Court and the Court found that the revised procedures satisfied the law and the Constitution. These documents reflect the Government’s serious commitment to getting it right and the Court’s careful and searching review of matters within its jurisdiction.
For the record, I don’t blame the DNI for being defensive. While his actions have left plenty of room for criticism, James Clapper is not a bad guy. He’s not slaughtering puppies or making millions gambling with people’s home mortgages. In fact, in any other context, I’m pretty sure we’d be calling him a hero. Not only is he a decorated veteran, who spent thirty-two years in uniform, including two combat tours in Southeast Asia, at 73-years-old, he continues to work seven days a week for a government salary in an effort to keep Americans safe.
That’s not to say I agree with his approach to keeping Americans safe. I don’t. But I don’t doubt that his heart is in the right place and I can only imagine how much it must suck to have the public he’s dedicated his life to protect turn on him with such anger.
Problem is, though, he’s wrong.
The plethora of documents General Clapper declassified are not proof that Intelligence Community oversight is working, because despite what General Clapper says, the government did not satisfy all of the concerns that the Court raised about the Administration’s Section 702 collections activities.
For those following along at home, Section 702 of the FISA Amendments Act gives the Administration the authority to collect an American citizen’s communications (without a warrant) if – and only if – their communications are collected incidental to the Intelligence Community’s efforts to collect the communications of a foreigner.
In other words, if the NSA wants to collect a foreigner’s emails, it can basically download everything in that foreigner’s gmail account directly into the U.S. government database without worrying that some of the emails in that account might be from an American citizen. Obviously, if the government was targeting that American citizen directly, it would need a warrant to collect and read those emails, but thanks to Section 702 of the FAA, if the government unintentionally collects an American citizen's calls or emails, it can review them without a warrant.
In October 2011, the Foreign Intelligence Surveillance Court found that the NSA had been violating both FAA and the Fourth Amendment by scooping up tens of thousands of “wholly domestic” communications that had nothing to do with a targeted foreigner. This was attributed to the technical challenges of collecting multiple communications at once and the administration found a way to resolve the problem and address the Court’s concerns.
But, if you turn to page 33 and 34 of the FISA Court’s October 3, 2011 opinion. You’ll see that that wasn’t the Court’s only concern about the NSA’s Section 702 collection activities:
…in addition to these MCT’s, NSA likely acquires tens of thousands more wholly domestic communications every year, given that NSA’s upstream collection devices will acquire a wholly domestic ‘about’ SCT if it is routed internationally.
(For the record, the FISA Court underlined “more,” not me.)
What this means is the NSA isn’t just collecting emails sent to and from a targeted foreigner’s email address, they are collecting emails that include the targeted foreigner’s email address in the body of the message. So, if a friend asks you to forward them an email address, if that email address belongs to a targeted foreigner, your email could end up in the government database even if both you and your friend are American citizens located in the United States.
If you flip to page 48 of FISC’s opinion, you’ll see that the Court has definite concerns about this:
Given that NSA’s upstream collection devices lack the capacity to detect wholly domestic communications at the time an Internet transaction is acquired, the Court is inexorably led to the conclusion that the targeting procedures are “reasonably designed” to prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States. This is true despite the fact that the NSA knows with certainty that upstream collection, viewed as a whole, results in the acquisition of wholly domestic communications.
By expanding its Section 702 acquisitions to include the acquisition of Internet transactions through its upstream collection, NSA, has, as a practical matter, circumvented the spirit of Section 1881 a(b)(4) and (d)(1) with regard to that collection. NSA’s knowing acquisition of tens of thousands of wholly domestic communications through its upstream collection is a cause for concern for the court.
[Note: If you aren’t familiar with the word “inexorably” its legal speak for “not to be persuaded.” As in the court isn’t persuaded that the NSA’s targeting procedures have been “reasonably designed” to prevent the intentional collection of wholly domestic communications.]
So, the court raised concerns that the NSA is actively collecting emails that mention targeted foreigners even though the NSA knows they’ll likely collect tens of thousands of wholly domestic communications each year. This, the court says, violates the spirit of Section 702 of the FAA, which explicitly prohibits the government from “knowingly” collecting wholly domestic communications.
The IC did not address this concern. And, if you refer to page 4 of the memo that the ODNI sent the Intelligence Committees on May 4, 2012 to argue for FAA’s reauthorization, you will see that this collection is ongoing.
“[Upstream collection] lets the NSA collect electronic communications that contain the targeted e-mail address in the body of a communications between third parties.”
[I think it’s worth noting that in mentioning this capability to Congress, the Administration failed to mention that the Foreign Intelligence Surveillance Court had raised concerns that this practice violates the spirit of the FAA.]
Why does this matter? I mean if one American is forwarding a terrorist’s address to another American, that email is clearly “relevant” to a terrorism investigation and should be collected, right?
Not exactly. Just because an email contains the address of a “targeted foreigner” does not mean it has anything to do with terrorism, because Section 702 does not limit surveillance to terrorism suspects.
Rather, Section 702 applies to all foreign intelligence gathering for any foreign intelligence purpose. Which means that the government can use its Section 702 authority to target basically any foreigner that it thinks might have information the U.S. government might find useful. This can include: foreign officials, business people, journalists, human rights advocates, etc. etc.
So, while it may be reasonable to assume that two Americans sharing a terrorist’s email address are probably up to no good, I can think of a whole lot of very innocent reasons that one American might share the email address of a targeted foreigner with another. Heck, just last month, I shared a foreign reporter’s email address with a friend who was looking for a hotel recommendation for his dad. Did that email end up in a government database?
Again, why should you care? That information is only being used for terrorist investigations, right?
No. As recently disclosed documents reveal, the Administration believes that as long as communications are “lawfully” collected, the government doesn’t need a warrant to use them for other purposes. In other words, while the government would need to get a warrant to read your emails, the government does not need a warrant to read emails that it may have “accidentally” collected on you. (The fact that it didn’t need a warrant to collect those emails in the first place is considered irrelevant.)
My former boss, attempted to close this loophole in early 2012, when, during a closed Intelligence Committee mark-up, he introduced an amendment to the FISA Amendments Act that would have required the government to get a warrant before being allowed to search the government database for the name of an American citizen.
I don’t think that’s unreasonable. If the government has a legitimate cause to target an American it can get a warrant to search the database. Meanwhile, warrant requirements could prevent LOVEINT-esque incidents in which NSA personnel might be tempted to search the database for names that they have no legitimate, foreign intelligence reason to target.
But, despite the President’s oft-repeated claims that the government can not read an American’s emails and/or listen to the content of their conversations without a warrant, the administration quietly opposed Wyden’s attempt to require government agents to get warrants to do just that.
To their credit, after quashing Congress’s attempt to limit the executive branch’s authority, the executive branch appears to have issued an alert that analysts should not query the database for the name of a U.S. person “until an effective oversight process has been developed by NSA and agreed to by DOJ/ODNI.” That is, of course, better than nothing, but am I the only one who thinks it’s a problem that the only entity conducting oversight over the Intelligence Community is the Intelligence Community?
Again, as you can see from the ODNI’s rollout of FISC’s Section 702 opinions, Director Clapper would very much like you to believe that the Intelligence Community is “commit[ed] to detecting, correcting, and reporting mistakes, and to continually improving its oversight and compliance processes.” But is the IC as committed to detecting, correcting and reporting mistakes that others identify?
We’ve been told that the Intelligence Community has implemented safeguards that it believes to be effective. It is declassifying the documents that it believes are in the public’s best interests to see, and when they tell you they “satisfied the concerns raised by the court,” they mean they satisfied the court’s concerns that they decided were worth satisfying. (Which, again, is not the same as saying the Intelligence Community satisfied all of the Court’s concerns.)
And let’s not forget, the Intelligence Community is engaged in these surveillance activities because they believe they are necessary to national security.
But is any of that the same as saying these programs are being subjected to effective oversight?
Doesn’t oversight imply that your work is being reviewed by someone who has an incentive to raise concerns and/or might catch something you may have missed? Doesn’t the fact that the NSA apparently didn’t think to implement safeguards to its database query process until AFTER Senator Wyden raised concerns about it suggest that maybe the NSA isn’t catching all of its mistakes and outside oversight can be a good thing?
Because, I’m sorry, I have a hard time believing that the administration is committed to oversight, when the only oversight it appears to be committed to is oversight conducted by folks that agree with what they are doing. Also – and maybe this isn’t fair – I have a hard time trusting the Intelligence Community to identify and correct possible problems related to its secret surveillance programs, when no one in the IC apparently noticed that there might be a problem with the name of its new Tumblr account: http://icontherecord.tumblr.com/. But maybe that’s just me.
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Posted on Techdirt - 10 August 2013 @ 12:00pm
In a bit of fortuitous timing, this week we had asked former deputy chief of staff for Ron Wyden, Jennifer Hoelzer, to do our weekly "Techdirt Favorites of the Week" post, in which we have someone from the wider Techdirt community tell us what their favorite posts on the site were. As you'll see below, Hoelzer has a unique and important perspective on this whole debate concerning NSA surveillance, and given the stories that came out late Friday, she chose to ditch her original post on favorites and rewrite the whole thing from scratch last night (and into this morning). Given that, it's much, much more than a typical "favorites of the week" post, and thus we've adjusted the title appropriately. I hope you'll read through this in its entirety for a perspective on what's happening that not many have.
Tim Cushing made one of my favorite points of the week in his Tuesday post "Former NSA Boss Calls Snowden's Supporters Internet Shut-ins; Equates Transparency Activists With Al-Qaeda," when he explained that "some of the most ardent defenders of our nation's surveillance programs" -- much like proponents of overreaching cyber-legislation, like SOPA -- have a habit of "belittling" their opponents as a loose confederation of basement-dwelling loners." I think it's worth pointing out that General Hayden's actual rhetoric is even more inflammatory than Cushing's. Not only did the former NSA director call us "nihilists, anarchists, activists, Lulzsec, Anonymous, twenty-somethings who haven't talked to the opposite sex in five or six years," he equates transparency groups like the ACLU with al Qaeda.
I appreciated this post for two reasons:
First of all, it does a great job of illustrating a point that I've long made when asked for advice on communicating tech issues, which is that the online community is as diverse and varied as the larger world we live in. Of course, we are more likely to come across the marginal opinions of twenty-somethings with social anxiety online because, unlike the larger world, the Internet gives those twenty-somethings just as much of an opportunity to be heard as a Harvard scholar, a dissident protesting for democracy or General Hayden himself.
Sure, it can be infuriating to read scathingly hostile comments written by troubled individuals who clearly didn't take the time to read the post you spent countless hours carefully writing (not that that has ever happened to me) but isn't one of the things that makes the Internet so darn special its unwavering reminder that free speech includes speech we don't appreciate? Of course, that's a point that tends to get lost on folks -- like General Hayden -- who don't seem to understand that equating the entirety of the online world with terrorists is a lot like posting a scathing comment to a story without reading it. You can't expect someone to treat you or your opinion with respect -- online or anywhere else -- when you're being disrespectful. And I can imagine no greater disrespect for the concepts of transparency and oversight than to equate them with the threats posed by terrorist groups like al Qaeda.
But my main reason for singling out Tim's post this week is that Hayden's remark goes to the heart of what I continue to find most offensive about the Administration's handling of the NSA surveillance programs, which is their repeated insinuation that anyone who raises concerns about national security programs doesn't care about national security. As Tim explains this "attitude fosters the "us vs. them" antagonism so prevalent in these agencies dealings with the public. The NSA (along with the FBI, DEA and CIA) continually declares the law is on its side and portrays its opponents as ridiculous dreamers who believe safety doesn't come with a price."
To understand why I find this remark so offensive, I should probably tell you a little about myself. While the most identifying aspect of my resume is probably the six years I spent as U.S. Senator Ron Wyden's communications director and later deputy chief of staff, I started college at the U.S. Naval Academy and spent two years interning for the National Security Council. I had a Top Secret SCI clearance when I was 21 years old and had it not been for an unusual confluence of events nearly 15 years ago -- including a chance conversation with a patron of the bar I tended in college -- I might be working for the NSA today. I care very deeply about national security. Moreover -- and this is what the Obama Administration and other proponents of these programs fail to understand -- I was angry at the Administration for its handling of these programs long before I knew what the NSA was doing. That had a lot to do with the other thing you should probably know about me: during my tenure in Wyden's office, I probably spent in upwards of 1,000 hours trying to help my boss raise concerns about programs that he couldn't even tell me about.
Which brings me to my next favorite Techdirt post of the week, Mike's Friday post entitled "Don't Insult Our Intelligence, Mr. President: This Debate Wouldn't Be Happening Without Ed Snowden," which is a much less profane way of summing up my feelings about the President's "claim that he had already started this process prior to the Ed Snowden leaks and that it's likely we would [have] ended up in the same place" without Snowden's disclosure.
"What makes us different from other countries is not simply our ability to secure our nation," Obama said. "It's the way we do it, with open debate and democratic process."
I hope you won't mind if I take a moment to respond to that.
Really, Mr. President? Do you really expect me to believe that you give a damn about open debate and the democratic process? Because it seems to me if your Administration was really committed to those things, your Administration wouldn't have blocked every effort to have an open debate on these issues each time the laws that your Administration claims authorizes these programs came up for reauthorization, which -- correct me if I am wrong -- is when the democratic process recommends as the ideal time for these debates.
For example, in June 2009, six months before Congress would have to vote to reauthorize Section 215 of the Patriot Act, which the Obama Administration claims gives the NSA the authority to collect records on basically every American citizen -- whether they have ever or will ever come in contact with a terrorist -- Senators Wyden, Feingold and Durbin sent Attorney General Eric Holder a classified letter "requesting the declassification of information which [they] argued was critical for a productive debate on reauthorization of the USA PATRIOT Act."
In November 2009, they sent an unclassified letter
reiterating the request, stating:
"The PATRIOT Act was passed in a rush after the terrorist attacks of September 11, 2001. Sunsets were attached to the Act's most controversial provisions, to permit better-informed, more deliberative consideration of them at a later time. Now is the time for that deliberative consideration, but informed discussion is not possible when most members of Congress - and nearly all of the American public - lack important information about the issue."
Did President Obama jump at the opportunity to embrace the democratic process and have an open debate then? No. Congress voted the following month to reauthorize the Patriot Act without debate.
In May 2011, before the Senate was -- again -- scheduled to vote to reauthorize the Patriot Act, Senators Wyden and Udall -- again -- called for the declassification of the Administration’s secret interpretation of Section 215. This time, in a Huffington Post Op-Ed entitled "How Can Congress Debate a Secret Law?"
Members of Congress are about to vote to extend the most controversial provisions of the USA PATRIOT Act for four more years, even though few of them understand how those provisions are being interpreted and applied.
As members of the Senate Intelligence Committee we have been provided with the executive branch's classified interpretation of those provisions and can tell you that we believe there is a significant discrepancy between what most people -- including many Members of Congress -- think the Patriot Act allows the government to do and what government officials secretly believe the Patriot Act allows them to do.
Legal scholars, law professors, advocacy groups, and the Congressional Research Service have all written interpretations of the Patriot Act and Americans can read any of these interpretations and decide whether they support or agree with them. But by far the most important interpretation of what the law means is the official interpretation used by the U.S. government and this interpretation is -- stunningly --classified.
What does this mean? It means that Congress and the public are prevented from having an informed, open debate on the Patriot Act because the official meaning of the law itself is secret. Most members of Congress have not even seen the secret legal interpretations that the executive branch is currently relying on and do not have any staff who are cleared to read them. Even if these members come down to the Intelligence Committee and read these interpretations themselves, they cannot openly debate them on the floor without violating classification rules.
During the debate itself, Wyden and Udall offered an amendment to declassify the Administration's legal interpretation of its Patriot Act surveillance authorities and, in a twenty minute speech on the Senate floor
, Wyden warned that the American people would one day be outraged to learn that the government was engaged in surveillance activities that many Americans would assume were illegal
, just as they were every other time the national security committee has tried to hide its questionable activities from the American people.
Fun aside: As you can see in the video, to underscore the point that hiding programs from the American people rarely goes well for the Administration, I had my staff make a poster of the famous image of Oliver North testifying before Congress during the Iran-Contra hearing. I really wanted to replace North’s face with the words “insert your photo here,” but we didn't have the time.
Did President Obama welcome an open debate at that time?
No. Congress voted to reauthorize the Patriot Act for four more years and the only point we -- as critics -- could raise that might be confused with debate was a hypothetical argument illustrated with a twenty-year-old picture of Oliver North. And, again, Senator Wyden couldn't even tell me what he was so concerned about. In strategy meetings with me and his Intelligence Committee staffer, I had to repeatedly leave the room when the conversation strayed towards details they couldn't share with me because I no longer had an active security clearance. "You know, it would be a lot easier if you could just tell me what I can't say?"
I'd vent in frustration. They agreed, but still asked me to leave the room.
And that was just the Patriot Act. Did the President -- who now claims to welcome open debate of his Administration's surveillance authorities -- jump at the opportunity to have such a debate when the FISA Amendments Act came up for reauthorization?
No. Not only did the Administration repeatedly decline Senator Wyden's request for a "ballpark figure" of the number of Americans whose information was being collected by the NSA last year, just a month after the Patriot Act reauthorization, the Senate Intelligence Committee attempted to quietly pass a four year reauthorization of the controversial surveillance law by spinning it as an effort to
: "Synchronize the various sunset dates included in the Foreign Intelligence Surveillance Act of 1978 to June 1, 2015;"
So, I guess if this was part of the Administration's plan to publicly debate the NSA's surveillance authorities, the plan was for the debate to take place in 2015
And, as I explained in an interview with Brian Beutler
earlier this summer, that is just a fraction of the ways the Obama Administration and the Intelligence Communities ignored and even thwarted our attempts to consult the public on these surveillance programs before they were reauthorized. In fact, after the Senate Intelligence Committee hearing in which Wyden attempted to close the FAA's Section 702 loophole, which another important Techdirt post
this week explains, "gives the NSA 'authority' to run searches on Americans without any kind of warrant," I -- as Wyden’s spokesperson -- was specifically barred
from explaining the Senator's opposition to the legislation to the reporters. In fact, the exact response I was allowed to give reporters was:
"We've been told by Senator Feinstein's staff that under the SSCI's Committee Rule 9.3, members and staff are prohibited from discussing the markup or describing the contents of the bill until the official committee report is released. The fact that they've already put out a press release does not lift this prohibition."
That's right, supporters of a full scale reauthorization of the FISA Amendments Act put out a press release explaining why this was a good thing, while explicitly barring the Senator who voted against the legislation from explaining his concerns.
Months later, the FISA Amendments Act, which the Administration contends authorizes its PRISM program, passed without the open debate that the President now contends he wanted all along. And, again, I'm only touching on a fraction of the efforts just Senator Wyden made to compel the administration to engage the American people in a democratic debate. I, obviously, haven't mentioned the Director of National Intelligence's decision to lie when Wyden "asked whether the NSA had collected 'any type of data at all on millions of Americans.'"
(Btw: Given that Wyden shared his question with the ODNI the day before the hearing, I am highly skeptical that Clapper's decision to lie was made unilaterally.) Or the fact that the Obama Administration repeatedly fought lawsuits and FOIA requests for, again -- not sources and methods -- but the Section 215 legal interpretation that the Administration claims authorizes its surveillance authorities.
The below is an excerpt from a March 2012 letter
that Wyden and Udall sent the Obama Administration urging them to respect the democratic process:
The Justice Department's motion to dismiss these Freedom of Information Act lawsuits argues that it is the responsibility of the executive branch to determine the best way to protect the secrecy of intelligence sources and methods. While this is indeed a determination for the executive branch to make, we are concerned that the executive branch has developed a practice of bypassing traditional checks and balances and treating these determinations as dispositive in all cases. In other words, when intelligence officials argue that something should stay secret, policy makers often seem to defer to them without carefully considering the issue themselves. We have great respect for our nation's intelligence officers, the vast majority of whom are hard-working and dedicated professionals. But intelligence officials are specialists -- it is their job to determine how to collect as much information as possible, but it is not their job to balance the need for secrecy with the public's right to know how the law is being interpreted. That responsibility rests with policy makers, and we believe that responsibility should not be delegated lightly.
But, as Mike's last post on Friday explains
, "President Obama flat out admitted that this was about appeasing a public that doesn't trust the administration, not about reducing the surveillance." Mike's insight continues:
Even more to the point, his comments represent a fundamental misunderstanding of why the public doesn't trust the government. That's because he keeps insisting that the program isn't being abused and that all of this collection is legal. But, really, that's not what the concern is about. Even though we actually know that the NSA has a history of abuse (and other parts of the intelligence community before that), a major concern is that scooping up so much data is considered legal in the first place.
I'd go even further than that and argue that a big part of the reason the American people are having a hard time trusting their government is that the public's trust in government is harmed every time the American people learn that their government is secretly doing something they not only assumed was illegal but that government officials specifically told them they weren't doing. Hint: When the American people learn that you lied to them, they trust you less.
I think it's hard for the American people to trust their President when he says he respects democratic principles, when his actions over the course of nearly five years demonstrate very little respect for democratic principles.
I think the American people would be more likely to trust the President when he says these programs include safeguards that protect their privacy, if he -- or anyone else in his administration -- seemed to care about privacy rights or demonstrated an understanding of how the information being collected could be abused. Seriously, how are we supposed to trust safeguards devised by people who don't believe there is anything to safeguard against?
I think it's understandably hard for the American people to trust the President when he says his Administration has the legal authority to conduct these surveillance programs when one of the few things that remains classified about these programs is the legal argument that the administration says gives the NSA the authority to conduct these programs. This is the document that explains why the Administration believes the word "relevant" gives them the authority to collect everything. It's also the document I'd most like to see since it's the document my former boss has been requesting be declassified for more than half a decade. (A reporter recently asked me why I think the Administration
won't just declassify the legal opinion given that the sources and methods it relates to have already been made public. "I think that's pretty obvious," I said. "I believe it will be much harder for the Administration to claim that these programs are legal, if people can see their legal argument.")
I think it's hard for the American people to trust the President when his administration has repeatedly gone out of its way to silence critics and -- again -- treat oversight as a threat on par with al Qaeda. As another great Techdirt post this week -- US Releases Redacted Document Twice... With Different Redactions
-- illustrates, many of the Intelligence Community's classification decisions seem to be based more on a desire to avoid criticism than clear national security interests. And as Senator Wyden said back in 2007
, when then CIA Director Hayden (yes, the same guy who thinks we're all losers who can't get laid) attempted to undermine oversight over his agency by launching an investigation into the CIA's inspector general, "people who know that they're doing the right thing aren't afraid of oversight."
Which reminds me of the Techdirt post this week that probably haunted me the most. Ed Snowden's Email Provider, Lavabit, Shuts Down To Fight US Gov't Intrusion
. Mike uses the post to explain that Ladar Levison, the owner and operator of Labavit -- the secure email service that provided Edward Snowden's email account -- decided to shut down his email service this week.
Not much more information is given, other than announced plans to fight against the government in court. Reading between the lines, it seems rather obvious that Lavabit has been ordered to either disclose private information or grant access to its secure email accounts, and the company is taking a stand and shutting down the service while continuing the legal fight. It's also clear that the court has a gag order on Levison, limiting what can be said.
The part that haunted me, though, was a line Levon included in his email informing customers of his decision:
"I feel you deserve to know what’s going on," he wrote. "The first amendment is supposed to guarantee me the freedom to speak out in situations like this."
He's right, isn't he? If these aren't the moments the First Amendment was meant for, what are? Moreover, if the Administration is so convinced that its requests of Labavit are just, why are they afraid to hold them up to public scrutiny?
In his book, Secrecy: The American Experience
, former Senator Daniel Patrick Moynihan included a quote from a 1960 report issued by the House Committee on Operations which I believe provides a far better response than anything I could write on my own:
Secrecy -- the first refuge of incompetents -- must be at a bare minimum in a democratic society for a fully informed public is the basis of self government. Those elected or appointed to positions of executive authority must recognize that government, in a democracy, cannot be wiser than its people.
Which brings me to my final point (at least for now) I think it's awfully hard for the American people to trust the President and his administration when their best response to the concerns Americans are raising is to denigrate the Americans raising those concerns. Because, you see, I have a hard time understanding why my wanting to stand up for democratic principles makes me unpatriotic, while the ones calling themselves patriots seem to think so little of the people and the principles that comprise the country they purport to love.
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