It feels like it's been a while since I've seen Xtranormal videos, but someone who shall remain nameless has put together a rather hysterical video of President Obama explaining why massive NSA surveillance under his watch is different than when it was done by President George W. Bush. As you may recall, President Obama criticized these programs while he was "Candidate Obama," but has now expanded them massively. This video explains why -- and is likely to make you laugh:
Below are some of my favorite lines... which is actually nearly a full transcript, because as I was picking out "favorite" lines, most of the video fell into that category.
It was concerning when the Bush administration was secretly collecting your information. Heck, I had concerns back then myself. But, everyone knows that George W. Bush was not a good President. Whereas, I am a good President. See the difference? So, while you could not trust George W. Bush to secretly collect your data, you can trust me. I'm a trustworthy guy.
Another important difference between my administration and the Bush administration is that when the Bush administration secretly spied on you, the Bush administration could not point to a single judge willing to say their program was legal. We, on the other hand, can point to such a judge. I'm not going to tell you who this judge is, or why he or she thinks our program is legal. If I did that, it would, obviously be harder for me to convince you that the program is legal. Instead, I'm just going to tell you that we secretly found one judge who was willingly to secretly say that it was legal for us to collect all of your data....
The Bush administration could not tell you that it had informed Congress. Whereas my administration took steps to ensure that if you ever found out about our secret surveillance program, we could tell you that we informed Congress. To be clear, when I say 'we informed Congress,' I am not saying that we did out best to ensure that Congress had enough information to have an informed debate on this vital national security issue. What I am saying is that we informed Congress enough for me to stand here and tell you that 'we informed Congress.' What Congress actually knew is not important....
If Congress did not want us to secretly interpret the law, then Congress should not have passed a law for us to secretly interpret....
If you, the American people, did not want me to secretly collect your data, then you should not have elected me President. Yes, I know many of you were probably unaware that I wanted to secretly collect your data, especially since I said I would not secretly collect your data. But, I choose to believe that you elected me to be your President, because you believe that if someone has to secretly collect your data, that someone should be me. And, as we all know, my secret interpretations of your support are more important than the reasons you actually supported me.
Finally, while I do not believe there is any reason to debate this issue, I will tell you that I welcome a debate on this issue. In fact, I'm so grateful that Edward Snowden started this debate that I have decided to stop at nothing to ensure he spends the rest of his life in a federal prison.
When the news of the US spying on EU embassies and various other official buildings came out over the weekend, we noted that this really wasn't that surprising, as it appeared to be very typical espionage -- the kind that has happened for decades, if not centuries. Still, it's not entirely clear that President Obama's response to this controversy is particularly tactful. He basically uses the "hey, come on guys, we're all doing this to each other, right?" excuse:
"We should stipulate that every intelligence service – not just ours, but every European intelligence service, every Asian intelligence service, wherever there's an intelligence service … here's one thing that they're going to be doing: they're going to be trying to understand the world better and what's going on in world capitals," he told a press conference during a long-scheduled trip Tanzania. "If that weren't the case, then there'd be no use for an intelligence service."
"And I guarantee you that in European capitals, there are people who are interested in, if not what I had for breakfast, at least what my talking points might be should I end up meeting with their leaders. That's how intelligence services operate," Obama added.
While I still think that this particular revelation is hardly that surprising, and agree that it's almost certain that various European countries are doing the same sort of thing to the US, I do wonder if that's the most tactful response to the growing controversy. Still, I do wonder if the focus on this will take away from the much larger issue of using intelligence services not to spy on other governments, but on the public via mass dragnet collections of information.
This is odd. In talking about Ed Snowden, President Obama referred to him as a "hacker." After being asked about what kinds of efforts the administration was making to capture Snowden, the President (thankfully) claimed that they weren't going to go too crazy over it, but chose an odd descriptor for Snowden:
"I'm not going to be scrambling jets to get a 29-year-old hacker," he told reporters during a news conference in Senegal.
Leaving aside the fact that Snowden recently turned 30, calling him a "hacker" seems like a calculated move to try to reframe these leaks as something nefarious where someone "broke in" to get classified info, rather than a whistleblower on the inside, who saw what was going on, the widespread abuses, the lying to the American public and Congress, and decided to do something about it. This attempt at reframing whistleblowing is all too consistent with the administration's practice of declaring war on whistleblowers.
We recently had a video showing then Senator Joe Biden, from seven years ago, "debating" the current President Obama on government surveillance. I hadn't seen this until now, but someone else has put together a much better video showing Presidential candidate Obama in 2008 vs. President Obama in 2013. The difference is stark.
Not only is there a massive difference in what's being said, but also in how it's being said. The Candidate Obama spoke clearly, directly strongly and without equivocation about protecting civil liberties and not giving up our freedoms. President Obama's speech, on the other hand, sounds weak, vague and unpresidential in comparison. In the first one, he makes these clear, declarative announcements:
This administration puts forth a false choice between the liberties we cherish and the security we provide.
But as President, he says (while rolling his eyes -- the video is incredible):
You can't have 100% security... and then also have 100% privacy and zero inconvenience.... We're, we're going to have to make some choices.
As a candidate:
I will provide our intelligence and law enforcement agencies the tools they need to take out the terrorists without undermining our Constitution and our freedoms. That means no more illegal wiretapping of American citizens. That means no more national security letters to spy on Americans who are not suspected of committing a crime. No more tracking citizens who do no more than protest a misguided war. No more ignoring the law when it is inconvenient. That is not who we are. That's not what is necessary to defeat the terrorists.
As President, he talks vaguely about how his team made an "assessment" and that these programs keep people safe, and "in the abstract" people might claim these programs are "Big Brother" but he thinks there's a "balance" to be struck. It's funny how different dictatorial surveillance powers look when you're the guy in charge of them.
This isn't a huge surprise, but the Washington Post is reporting that US federal prosecutors have filed a sealed criminal complaint against Edward Snowden charging him with espionage under the Espionage Act, along with theft and conversion of government property -- and have asked Hong Kong authorities to detain him. Just this morning, we were discussing the Obama administration's war on whistleblowers, prosecuting six different whistleblowers under the Espionage Act, twice the number of all other presidential administrations combined. Now we're up to number seven apparently. Update: The complaint has been unsealed (also embedded below).
Did Snowden break the law? Possibly -- but charging him with espionage is ridiculous, just as it has been ridiculous in many of these cases. Snowden wasn't doing this to "aid the enemy" but to alert the American public to the things that the administration itself had been publicly misleading to downright untruthful about. His actions have kicked off an important discussion and debate over surveillance society and how far it has gone today. That's not espionage. If he was doing espionage, he would have sold those secrets off to a foreign power and lived a nice life somewhere else. To charge him with espionage is insane.
In terms of process, the Washington Post explains:
By filing a criminal complaint, prosecutors have a legal basis to make the request of the authorities in Hong Kong. Prosecutors now have 60 days to file an indictment, probably also under seal, and can then move to have Snowden extradited from Hong Kong for trial in the United States.
Snowden, however, can fight the U.S. effort to have him extradited in the courts in Hong Kong. Any court battle is likely to reach Hong Kong's highest court and could last many months, lawyers in the United States and Hong Kong said.
It also notes that while the US and Hong Kong have an extradition treaty, there is an exception for "political offenses."
While this certainly was not unexpected, it's still a disappointing move from the administration. The crackdown on whistleblowers does not make the US look strong. It makes our government look weak, petty and vindictive in the face of actual transparency. It's shameful.
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
been doing.
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.
The folks over at the EFF have put together a nice "debate" video, showing a clip of then-Senator Joe Biden angrily denouncing warrantless wiretapping by the NSA, spliced with President Obama defending the latest NSA surveillance leaks to show a "debate" between the two. I think Biden wins, hands down:
The escalating build-out of the American surveillance state since 9/11 can't be attributed to any one factor. There have been several contributors, most of which have used the omnipresent "threat" of terrorism as leverage to increase governmental power and control at the expense of its citizens. But one undeniable aspect is the fact that two consecutive presidents have recast their presidential responsibilities, as Micah Zenko points out at Foreign Policy.
When asked last September if he personally chose which individual terrorist suspects could be targeted with lethal force, President Barack Obama gave a response that would have astounded the founding fathers: "What is absolutely true is that my first job, my most sacred duty, as president and commander in chief, is to keep the American people safe." This is false. As the presidential "Oath or Affirmation" in the Constitution reads: "I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
As Zenko states, Obama should know better. After all, he spent more than a decade lecturing on constitutional law at the University of Chicago. But his predecessor led the way, informing Americans that "safety" would trump rights.
George W. Bush told a cheering crowd at the 2004 Republican National Convention: "I believe the most solemn duty of the American president is to protect the American people.
While on the campaign trail, Obama vowed to correct Bush's skewed priorities. But rather than follow through on that promise, he has gone the other direction, expanding on his inherited policies and defending various agencies accused of abuse. Unfortunately, once this mindset is in place, it is almost impossible to roll back. The policies it creates only move in one direction.
The essential and enduring feature of both post-9/11 presidents has been their shared contention that their core objective -- and by extension, that of the executive branch -- is to protect U.S. citizens from one particular form of harm: terrorist violence. Both success and failure at achieving this objective have justified the expansion of additional authorities and tools. If there are no terrorist attacks, then all policies in place must remain, but when terrorist plots are revealed or the rare attack occurs, then additional tools and secrecy are mandated.
The executive branch is a key part of the system of checks and balances this country's founders mandated in order to prevent the sort of mission creep and rights erosion occurring today. Instead of protecting the Constitution and their constituents, two consecutive presidents have relegated it to the background, preferring to pursue the unobtainable: safety and security.
Other government agencies are tasked with protecting the public. The executive branch is ultimately responsible for preventing abuses and excesses. Instead, this branch has willingly paved the way for a surveillance network that undermines protections and rights in exchange for vague assurances of security.
Well, this is rich. During his talk on Thursday, much of which focused on terrorism and drones, President Obama admitted that he's asked Eric Holder to review the DOJ's process for investigating leaks that involve getting information from journalists:
President Obama said Thursday that he is “troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.”
In a major speech on national security, Obama said that the “Justice Department’s investigation of national security leaks offers a recent example of the challenges involved in striking the right balance between our security and our open society.”
While it's great that he's "troubled," it's not a "possibility" that this is chilling investigative journalism, it's a confirmed fact. Not only that, but many believe that this was actually part of the goal all along. There's been no evidence of any interest in "balance." There has, instead, been what is clearly a concerted effort to intimidate whistleblowers and the press that investigates the federal government. The Obama administration has used the Espionage Act against more cases of whistleblowing to the press than all other Presidents combined. That's not about "striking the right balance."
Obama said that “journalists should not be at legal risk for doing their jobs," but that the "focus must be on those who break the law."
Oh really? Then why did your own DOJ claim that a journalist was an aider and abettor and/or co-conspirator for reporting on a leak -- just like tons of other reporters?
President Obama sounds like someone campaigning against his own policies. Either Eric Holder and the DOJ have "gone rogue" or the President is hastily pretending that his administration is not doing what it clearly has been doing for years.
You can, of course, understand why the sponsors would bring back the identical bill. After all, it passed (fairly easily), even with tremendous protests. Many tech companies like the bill, because it puts no specific requirements on them, and also (more importantly) frees them from liability for sharing info on their users. But that's the really problematic part. It's disappointing that tech companies have not realized that standing up for their users' privacy rights is a smart business decision on its own. Tragically, they're taking the short term view on this one.
The privacy concerns about CISPA are incredibly serious. While the Senate took a very different approach with its Cybersecurity Act (which did not pass), at the very least, amendments to the Senate bill improved the privacy problems. One would hope that the backers of CISPA would recognize that this would be an opportunity to build a bigger tent, and follow through by matching the same privacy protections. Unfortunately they did not. While the Obama administration threatened to veto CISPA last year, in part due to the privacy concerns, I'm not sure anyone is confident that the administration is serious about that.
In fact, if the rumors are correct, President Obama will mention cybersecurity sometime in the State of the Union address tonight, and then will sign the executive order the administration has put together on Wednesday morning, to coincide with the reintroduction of CISPA in the afternoon. Basically, the use of the executive order is to put pressure on Congress to do something. There is still a hurdle from the Senate, since it supports a very different approach, but there's about to be a very, very big push on cybersecurity.
Either way, it's incredibly disappointing that CISPA's supporters didn't take the time to make some rather basic changes to protect privacy. Instead, they effectively use some broad language to more or less wipe out privacy protections on very broad terms, while doing nothing to keep any data shared from being further shared with other parts of the government. In other words, it's a ticket for widespread surveillance of Americans (as if we don't already have enough of that).
Fight For the Future has set up CISPAisBack.com to try to let folks in Congress know that bringing back the same extremely flawed bill is a mistake. That's one way to contact your Representatives, though just calling their office directly would also be a good idea.
