NSA Defenders Offer Weak Rebuttal Of The RNC's Condemnation Of Mass Surveillance Programs

from the 9/11-ad-infinitum dept

Tue, Jan 28th 2014 3:03pm — Tim Cushing

Soon after the Republican National Committee released its surprising condemnation of the NSA's spy programs, a loose confederation of NSA apologists and assorted hangers-on (but only one current legislator) fired off a response letter that claimed everything about the RNC's letter was wrong.

Stewart Baker, one of the signers, announced it at Volokh Conspiracy's new home at the Washington Post:

Almost immediately after the Republican National Committee adopted an error-filled resolution attacking the NSA and its telephone metadata program, current and former GOP officials took a strong stand against the resolution.

Well, as "strong" as a stand can be with only one current government worker signing it -- that being Mike Pompeo, one of the members of the House Intelligence Committee. Everyone else are former members of the security beltway, having maintained high-ranking positions in the CIA, DHS and DOJ. So, that particular response is hardly surprising. Michael Hayden (and his boss, Michael Chertoff) and Stewart Baker are the more recognizable names attached.

The "strong stand" reads as follows (with periodic interruptions by this writer):

Dear Chairman Priebus:

As Republicans who are familiar with the threat that terrorism still poses to this country, we are compelled to dissent from the ill-considered resolution adopted by the Republican National Committee on January 24 by voice vote.

The Republican National Committee plays a vital role in political campaigns, but it has relatively little expertise in national security. Unfortunately, that lack of expertise is on full display in the resolution. The RNC condemns “the secret surveillance program called PRISM,” and claims that it “monitors [the] searching habits of virtually every American on the internet.” In fact, there is no program that monitors the searches of all Americans. And what has become known as the PRISM program is not aimed at collecting the communications of Americans. It is targeted at the international communications of foreign persons located outside the United States and is precisely the type of foreign-targeted surveillance that Congress approved in 2008 and 2012 when it enacted and reauthorized amendments to the Foreign Intelligence Surveillance Act.

The NSA leaks have shown that programs don't need to be "aimed" at Americans to collect the data and communications of Americans. As long as something is considered "relevant," it can be collected. Not only that, but tons of "incidental" collection occurs as a nature of the untargeted dragnets. The NSA may have minimization processes in place, but they're not infallible and can be easily abused. So, for all the strong wording, this paragraphs reads like little more than the NSA party line. We don't target Americans. (We just somehow end up with a lot of their stuff.)

The errors in the resolution do not end there. The resolution falsely implies that NSA collects and has easy access to telephone metadata, when in fact every search of the data requires a reasonable and articulable suspicion and is strictly limited by the courts, with oversight by the intelligence committees of both houses of Congress.

We've discussed countless times how the intelligence committees' "oversight" has been anything but for years now. And the NSA does have easy access to the metadata. There may only be 20 or so people who can make RAS determination, but there are "up to 125 analysts" who have access to the collected metadata. Accessing the collection is no longer "strictly limited" by the courts. It was at one point, shortly after Judge Walton called a temporary halt to the program in 2009 because of wide-ranging abuse by the agency since the program's inception. These limitations are mentioned in court orders from 2009-2010, but are completely missing from the 2013 Verizon court order leaked to The Guardian back in June. The court appears to have gone back to simply approving the collection every three months and hoping that the NSA isn't backsliding to its pre-March 2009 habits.

The resolution says that the program violates the Constitution, something that will come as news to the many judges who have found to the contrary – and to the Supreme Court, which has said that such limited billing data is not protected by a constitutional expectation of privacy. The resolution’s claim that the program violates section 215 also runs counter to the rulings of practically every court to address the issue.

The "expectation of privacy" is due for a revisit, if for no other reason than the NSA's bulk record collections rely on a questionable reading of pen register/trap and trace statutes -- targeted but expansive collection methods -- that were somehow extrapolated (via FISC Judge Kollar-Kotelly) to cover untargeted and expansive collection methods. As for "many judges" finding the collections constitutional, that's not necessarily true. At this point, we have two federal judges who have issued opposing rulings on that specifically in the past few months. Prior to that, anyone seeking to challenge the NSA's programs simply wasn't granted standing, which makes it nearly impossible to build a comprehensive case history. Having no judge state outright (prior to Judge Leon) that the program is unconstitutional is not the same thing as having "many judges" finding to the contrary.

As far as we can tell, none of these facts was presented to the RNC before it adopted the resolution. It is a shame that the resolution reached the Committee without correction of its many errors.

Worse, the RNC resolution threatens to do great damage to the security of the nation. It would be foolhardy to end the program without ensuring that we remain safe from attack. This database provides a uniquely valuable capability for discovering new phone numbers associated with international terrorist organizations, including numbers that may be used by terrorist cells within the United States. Former Deputy Director of the CIA Michael Morrell has testified that having this capability might have prevented 9/11 and could help to prevent the next 9/11.

This again? "Security of the nation." "Prevented 9/11." "Prevent the next 9/11." All claims that are easily debunked. The message is still as stupid as it ever was: trust the same agencies that couldn't prevent the first attack to prevent the next one.

This is not a Democratic or a Republican program. Protecting Americans from terrorism should not be a partisan issue.

Correct, and the one caveat that cannot be completely detached from the RNC's letter.

The program was first launched under President George W. Bush. It was approved by Congressional leaders of both parties. And for good reason. It helps to keep Americans safe.

It was approved by lawmakers operating in a panic after a horrendous terrorist attack, not exactly the best climate for anyone to consider the possible negatives of handing over considerable power to national security agencies and the government itself. No one wanted to be the representative who failed to act or appear to place political partisanship above public safety. Portraying this as some sort of non-partisan "meeting of the minds" glosses over the reality of the situation: panicked legislators shoving through horrendous legislation in order to "do something" in response to the 9/11 attacks. There's nothing heroic or otherwise admirable about the passage of the PATRIOT Act.

It may be appropriate to modify the program in certain respects, if that can be done without a significant loss in effectiveness, but abolishing it without any idea how to close the intelligence gap that 9/11 exposed is not a recipe for partisan advantage. It is a recipe for partisan oblivion.

Count us out.

9/11 only exposed the fact that our nation's intelligence and investigative agencies had access to plenty of data before the attack but collectively made a series of bad decisions that allowed the attacks to occur. The "intelligence gap" was between agencies, not between agencies and their targets. Sweeping up millions of unrelated metadata records doesn't close that gap. All it does is make it harder for those sorting through the mess for actually useful intel to do their jobs.

So, the response is the sort of thing you'd expect from the signing members -- some 9/11 stuff and some "it's all legal" rhetorical flourishes. I'd like to issue this challenge to surveillance advocates -- compose a powerful statement defending the NSA's programs without using the phrase "9/11" for once and see how that goes. It's slipped past "talking point" to "crutch" at this point. This itself would be bad enough, but it's also demonstrably wrong -- and its inevitable deployment in defense of bulk records gives its users all the credibility of "doctors" who specialize in homeopathy.

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Filed Under: mike pompeo, nsa, party politics, republican national committee, republicans, rnc, stewart baker, surveillance

46 Comments

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Anonymous Coward, 28 Jan 2014 @ 3:29pm

"Count us out"
Oh I think the public has counted you out a long time ago.

Out of touch, out-right liars, that need to be taken out of society and placed in out of the way jail cells for your crimes against the American public.

Oh we already do count you out. Don't worry about that.
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OldGeezer (profile), 28 Jan 2014 @ 3:36pm

Can't fucking believe it!!
I wrote a scathing email to Mike Pompeo about his failure to support the Amash amendment and he replied with the straight down the line NSA bullshit talking points most of which had already been debunked. This is a complete 180 for him. I guess my congressman wants my vote next election after all.
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OldGeezer (profile), 28 Jan 2014 @ 3:39pm

Re: Can't fucking believe it!!
Sorry, I read this wrong. I guess he has not changed.
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That One Guy (profile), 28 Jan 2014 @ 3:42pm

We need a new law
Something like 'Godwin's Law', but for 9/11, a short and concise way of saying 'You've attempted to invoke 9/11 to defend your actions/programs, and your argument has been shown to be invalid because of it. Had you any real arguments, you would have presented them, the fact that you instead went with 9/11 shows your position to be empty and lacking in merit.'

Offhand I suggest 'Terrormonger's law', given anytime 9/11 is invoked to try and defend something it's in an attempt to cause a sense of panic and/or fear, though I'm open for other suggestions for a name.
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Trevor, 28 Jan 2014 @ 3:51pm

Number 4
"The resolution falsely implies that NSA collects and has easy access to telephone metadata, when in fact every search of the data requires a reasonable and articulable suspicion and is strictly limited by the courts, with oversight by the intelligence committees of both houses of Congress."

It amazes me how every time this is mentioned, they seem to forget the "and seizures" part of the Fourth Amendment.

Not only does it stop them from "searching" through your persons, houses, papers, and effects (which, according to case law, includes digital information) without probable cause, but it also stops them from "seizing" that stuff, too. Oops.

Also, now that it comes out that the NSA has the capability to access any phone, especially Androids, and remotely turn on cameras and microphones, does that mean they are "searching" your house and effects by watching and listening in? I'd be very interested to see a court opinion that says this is OK.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
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Anonymous Coward, 28 Jan 2014 @ 3:59pm

If I had anyone I knew who had died in 9/11 I would be pissed. To use the memory of this event, and those who died in it, in such a way is kind of abuse in my book.
It's like those leeches who use child abuse or child pornography to promote almost any law... they take the victims and what happened to them, and use them as they please in order to gain money or power. It is disgusting and despicable in so many ways.

I wonder if anyone has ever called these people out on it... you never hear anyone publicly ask them these things. Is it just me who thinks tat we should be so very afraid to offend these people? We are not supposed to step lightly around them, tiptoeing around the hard questions... they are supposed to step lightly around us, because they are supposed to serve us.
Yeah right.
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silverscarcat (profile), 28 Jan 2014 @ 4:03pm

Re: We need a new law
Bush's law
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silverscarcat (profile), 28 Jan 2014 @ 4:04pm

Re: Re: Can't fucking believe it!!
So, he doesn't want your vote then?
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silverscarcat (profile), 28 Jan 2014 @ 4:05pm

Re:
I say that any law that is made with the promise that it's "for the babies" (children) should automatically be thrown out.
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Dave Xanatos, 28 Jan 2014 @ 4:34pm

New amendment idea. Anyone who uses the phrase "partisan advantage" as a positive thing should be impeached. I'd prefer that any position the parties took was as a result of following their ideologies, and never "partisan advantage". You may say I'm a dreamer. You'd probably be right.
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OldGeezer (profile), 28 Jan 2014 @ 4:45pm

Re: Re: Re: Can't fucking believe it!!
Apparently not! When I wrote to him I told him I hope he has a private sector job lined up because he will need it after the next election.
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Anonymous Coward, 28 Jan 2014 @ 4:50pm

Re: We need a new law
I agree we need a law, but not that kind of law. We need a law that establishes really harsh criminal penalties for government officials that violate the rights of the citizens that are set forth in the Constitution and those penalties are increased when they willfully lie to the public about it in an attempt to cover it up. Then we need to take that law, indict these people and try them under it.

We also need another law that allows for the public to be able to bring and prosecute criminal charges against government officials by a significant popular demand for use when it is clear that the USAG is involved in the conspiracy to commit crimes against the public by other government officials such that accountability for those crimes gets lost under the law.
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Anonymous Coward, 28 Jan 2014 @ 5:04pm

A turd is a turd is a turd!
If it looks like a turd, smells like a turd and draws flies like a turd, it most likely likely IS a turd. Despite all the voracious denials of those that actually that actually shat this turd. So tell us more stories and we will await the disclosures to disprove those lies, also.
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Anonymous Coward, 28 Jan 2014 @ 5:28pm

And to the request not to use 9/11 as a basis to also not use the word terrorism. I have yet to see a bunch of terrorists walking down the road in a group, all talking on their cell phones to each other rather than using voice among themselves.

Not only is the 9/11 false but so is the idea that if we don't talk the terrorists won't know about it. Bin Laudin was hard to find for exactly this reason. Simply, he knew. He had no internet connection and no cell phone. No amount of searches is going to turn up his data if it isn't on the net or on a cell phone network. He became the ghost in the machine by not leaving a traceable trail. It takes no wizard to figure this out, given they couldn't find him and post raid indicated those items were missing.
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Ghost of American_Revolution, 28 Jan 2014 @ 5:31pm

pinch urself after reading 1783 historical fact & admit u suffer f/ longterm brainwashing
pinch urself after reading 1783 historical fact
& admit u suffer f/ longterm brainwashing

in 7 years (1776-1783), nonpower U.S. beat world power Britian.

Do u really believe it plausible that 2001-2014, 13 years after
starting to fight a gang of terrorists with no home country
of origin to support al queda, that the #1 largest army
in world + NSA technology could Not only not defeat a
ragtag group of bandits with no home country, but
be in a fucking stalemate still?

http://en.wikipedia.org/wiki/American_Revolution
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Anonymous Coward, 28 Jan 2014 @ 5:32pm

"announced it at Volokh Conspiracy's new home at the Washington Post: "

yea, BEHIND A PAYWALL, why are you not all upset at that TD??
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Anonymous Coward, 28 Jan 2014 @ 5:41pm

Re:
so what should laws be based on?? what didn't happen ?? what makes you feel all warm and fuzzy??

or just that they don't seem to effect you directly?

and if you have been at 9/11 you would be dead, but because you are not dead, and because you don't know anyone effected you consider any laws or efforts to stop that type of things happening again not your concern?

Amazing !!!
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Anonymous Coward, 28 Jan 2014 @ 5:42pm

Re:
you need to find out what "partisan" means first !!!!
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Anonymous Coward, 28 Jan 2014 @ 5:43pm

Re: We need a new law
"BUT FOR 9/11" ... But 9/11 happened, like it or not.. it really did you know..
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Anonymous Coward, 28 Jan 2014 @ 5:55pm

Re: pinch urself after reading 1783 historical fact & admit u suffer f/ longterm brainwashing
had to go back over 300 years to find a war you won?

and what did that do to the US ? you've been scared of invasion by the King/Queen ever since, you are allowed to carry guns because your so scared the Brits will come back one day.

why not take the same precautions as a result of 9/11, write a declaration of independence, allow you to carry arms to guard against invasion??

Put it into you constitution, so you can be scared forever.
You've done it before, the precedent has already been set.
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That One Guy (profile), 28 Jan 2014 @ 6:02pm

Re: Re: Re: Re: Can't fucking believe it!!
... I hope he has a private sector job lined up because he will need it after the next election.

Why else do you think so many politicians feel so safe spitting in the face of the public, they know that even if they get voted out of office, they'll have nice, extremely well paying private sector jobs waiting for them from all the companies/industries they 'helped out' during their time in the government.
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Anonymous Coward, 28 Jan 2014 @ 6:11pm

darryl just can't stand it when due process is enforced.
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AricTheRed (profile), 28 Jan 2014 @ 6:47pm

Re: by Anonymous Coward on Jan 28th, 2014 @ 5:41pm
"if you have been at 9/11 you would be dead, but because you are not dead, and because you don't know anyone effected you consider any laws or efforts to stop that type of things happening again..."

Barry "Oathbreaker In-chief" Obama,

Shouldn't you be getting ready for the "I'm gonna tell the people what ever shit I need to so they'll get off my back" state of the union address?
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OldGeezer (profile), 28 Jan 2014 @ 7:37pm

Re: Re: Re: Re: Re: Can't fucking believe it!!
Chris Dodd would beg to differ with that opinion!
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Anonymous Coward, 28 Jan 2014 @ 8:17pm

Re: Re: We need a new law
Conspiracy against rights
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Dave Xanatos, 28 Jan 2014 @ 8:42pm

Re: Re:
Which definition are you using? I'm going with American colloquial.
Partisan
In politics, a partisan is a committed member of a political party. In multi-party systems, the term is used for politicians who strongly support their party's policies and are reluctant to compromise with their political opponents.
In the United States, the meaning of the term has changed dramatically over the last 50 years. Before the American National Election Study (described in Angus Campbell et al., in The American Voter) began in 1952, an individual's partisan tendencies were typically determined from their voting behavior. Since then, "partisan" has come to refer to an individual with a psychological identification with one or the other of the major parties.
It's the idea of the party for the party's sake. Us against them. If they support it, we oppose it. That way of thinking is bad, and his comment drips of it.
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Lurker Keith, 28 Jan 2014 @ 9:42pm

Boston happened
I'm getting tired of the security morons claiming these programs will stop the next terrorist attack, when it failed to stop the Marathon bombing! Especially when they even had a heads up on the terrorist who would eventually set the bombs!
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Anonymous Coward, 28 Jan 2014 @ 10:38pm

Re: Re:
Nice going there... you could be a politician; turning those words right around and taking the farthest possible angle on this.
Aren't you angry, the way this is used again, again and then several times more, to justify... well everything. It seems to be just a label now; a talking point to be used to get things the way they want it. People are starting to get sick of hearing it, and not in the right way.
It is used to justify surveillance of the same people who were affected in the attack.
It is even used to justify torture.
I still can't believe that we are those sob's who use torture. One of the worst ways to ever treat a person, that has been deemed very ineffective and where we have laws against doing it to even animals... and still we are doing it.

So now I ask you: Would you like to have your family's memory used like that?
Would you like to be used like that, yourself?
Do you honestly think that these people who make sure to remind us, and bring it up every time the possibly can, even buy what they preach anymore?
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Anonymous Coward, 28 Jan 2014 @ 10:40pm

Re: Re:
I was not at 911, I was just being terrorized by the gov as it happened. The real victims deserve justice, and I deserve justice for what has happened to me.
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Anonymous Coward, 28 Jan 2014 @ 10:52pm

Re:
yea, BEHIND A PAYWALL, why are you not all upset at that TD??

What paywall? I don't pay and I see it just fine.
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David, 29 Jan 2014 @ 1:09am

This is so cute
It may be appropriate to modify the program in certain respects, if that can be done without a significant loss in effectiveness,

The whole scandal would not have been there if the NSA had not felt fine abundantly modifying the program.

The only connection between the PATRIOT act and the vast illegal and unconstitutional activities of the NSA is that the respective PATRIOT section is probably the most lenient active law concerning data collection.

So it's the largest and most often cited fig leaf. But even a large fig leaf is not helping much with covering an elephant.

The next larger fig leaf substitute is made of spider webs already, and is called "but terrorists!". Except that it is rather flimsy since the hundreds of billions of dollars sunk in the NSA have not thwarted a single terrorist plot. While widely opening up the entire U.S. infrastructure to terrorist attacks through government-placed security holes.
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Ninja (profile), 29 Jan 2014 @ 1:26am

NSA Defenders Offer *YET ANOTHER* Weak Rebuttal Of The RNC's Condemnation Of Mass Surveillance Programs

FIFY
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Anonymous Coward, 29 Jan 2014 @ 1:35am

Re:
Awesome you're almost funny. GJ
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btrussell (profile), 29 Jan 2014 @ 2:33am

Re: We need a new law
No, we need an educated public to recognize "As Republicans who are familiar with the threat that terrorism still poses to this country..." as a BS emotional ploy instead of providing cold hard facts as evidence.

Funny how we have the money for these types of programs but none for education.
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Anonymous Coward, 29 Jan 2014 @ 4:16am

This is like watching a poorly written TV show or reading a poorly written novel (Twilight for politics springs to mind).

Of course the RNC is going to condemn what the NSA is doing. I mean, we're suppose to totally forget that the RNC was 100% behind these activities when George Bush was in office, or the fact that they couldn't green light most of these programs and legislation fast enough for him?

But Obama is calling the plays now, and running and passing the ball with glee, and we all know anything, ANYTHING, Obama supports is BAD, so therefore these programs are clearly now illegal.

I can say with absolute conviction that the RNC would not be making these claims if Romney had won the last election, and that it would be the DNC doing all the shouting in that case.

I can also say with equal conviction that if a Republican wins the oval office come next election, the RNC will once again be fine with everything that is going on today.

If this were a book, it would be such a poorly done rip-off of 1984 that the spirit of George Orwell would be banging his head against a wall while standing next to the spirit of Benjamin Franklin (who's been doing the same for some time now).
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mcinsand, 29 Jan 2014 @ 7:17am

Re: We need a new law
We need to go after those that violate oaths of office, especially those that start with upholding the constitution. At a minimum, this should be a criminal offense, and I would like to see it added to one of the criteria for committing treason.
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Brazenly Anonymous, 29 Jan 2014 @ 7:47am

Re: Re: We need a new law
So you are a holocaust denier then? Last I checked, Nazi Germany actually happened too. In fact, it was a rather important and difficult to ignore part of world history.
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Rapnel (profile), 29 Jan 2014 @ 8:14am

Re: Re: Can't fucking believe it!!
Sooo... A complete 360 then? With a stale fish. Difficult trick - unless you're good at tricks.
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Anonymous Coward, 29 Jan 2014 @ 8:18am

Re: Re: We need a new law
That's not the point anyway. The point is that the tragedy of 9/11 is being exploited to justify the destruction of the very principles that the country was founded on and abuse of rights of the population for the benefit of the wealthy, greedy, power hungry few.
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silverscarcat (profile), 29 Jan 2014 @ 8:40am

Re: Re: Re: Re: Re: Re: Can't fucking believe it!!
That reminds me...

When it's around... September, yes, September, we need to get a list of the positions of members of Congress ready to go and plaster them all over the internet, radio, newspaper and TV so everyone knows who supports the 4th Amendment and liberty and who's for pushing for an authoritarian government.
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Anonymous Coward, 29 Jan 2014 @ 12:28pm

"Almost immediately after the Republican National Committee adopted an error-filled resolution attacking the NSA and its telephone metadata program, current and former GOP officials took a strong stand against the resolution."

"error-filled"
Oh ok, please expand on that, no please, do

Although, might be worth holding your breath instead, if its the same parroted "education" thats already been dismissed, unless your plan, IS to "beat a dead horse", maybe you think to "drill" the "education", "officially", until people do as you say instead of forming and having their own opinions, on any given subject

Pesky peons with their indepedent thoughts, who do they think they are

"pesky peon" speechless
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John Fenderson (profile), 30 Jan 2014 @ 6:29am

Re: Re: We need a new law
Yup, it did. You know what else happened? The damage of it was made much, much worse by our collective reaction to it. That reaction continues, as is evidenced by people who invoke 9/11 to justify the continued dismantling of everything that is good about this nation.
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John Fenderson (profile), 30 Jan 2014 @ 6:32am

Re: Re:
Laws created in the emotional aftermath of major events are, nearly without exception, terrible laws. It's better to evaluate the situation after everyone has calmed down.
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John Fenderson (profile), 30 Jan 2014 @ 6:35am

Re: pinch urself after reading 1783 historical fact & admit u suffer f/ longterm brainwashing
in 7 years (1776-1783), nonpower U.S. beat world power Britian

With an awful lot of help from the major nations that Britain was at war with at the time (France, etc.). Without them, the American Revolution would have failed quickly and decisively.
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BeeAitch (profile), 30 Jan 2014 @ 5:52pm

Re: Re: pinch urself after reading 1783 historical fact & admit u suffer f/ longterm brainwashing
had to go back over 300 years to find a war you won?

Here is a comprehensive list of wars involving the US. There are a 'few' on said list described to be victories.

and what did that do to the US ? you've been scared of invasion by the King/Queen ever since, you are allowed to carry guns because your so scared the Brits will come back one day.

I hardly think the US is "scared of invasion by the King/Queen ever since". Last time I checked the US and UK were allies.

On a side note, the 2nd Amendment of the US Constitution (the right to bear arms) is loosely based on the English Bill of Rights 1689.

why not take the same precautions as a result of 9/11, write a declaration of independence, allow you to carry arms to guard against invasion??

Now I have to assume that you are just ignorant in general:

The US already has a Declaration of Independence, and also has the 2nd Amendment (the right to bear arms).

Put it into you constitution, so you can be scared forever.
You've done it before, the precedent has already been set.

It is already in our constitution, so you can be safe against your own government.

You've done it before, the precedent has already been set.

Non sequitur.

It's been a while, Darryl, but again, it was fun. :)
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Anonymous Coward, 7 Feb 2014 @ 4:50am

Re: Re: We need a new law
Holy out of context, Buttman! 'This is like Godwin's Law, but for 9/11.' Let's call it 'Bush's Law,' shall we? Everything Bush did afterwards was 'because 9/11!' whether or not it was actually related. Has nothing to do with denying the event occurred.
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