As pretty much everyone has been sending over, a bunch of former NSA and intelligence community insiders who later went on to become whistleblowers (many of whom were then attacked or even prosecuted for their whistleblowing) have written quite an astounding open letter to President Obama, requesting that he allow them to brief him on the problems of the NSA. The letter goes a bit overboard on the rhetoric (which actually pulls away from its important underlying message, unfortunately), but the key points are clear. From what they've seen, they know that not only have the NSA's efforts violated the 4th Amendment and been ineffective, they have actually made it more difficult for the NSA to do its job properly.
What we tell you in this Memorandum is merely the tip of the iceberg. We are ready – if you are – for an honest conversation. That NSA’s bulk collection is more hindrance than help in preventing terrorist attacks should be clear by now despite the false claims and dissembling.
Much of the letter repeats things that were reported in the past, specifically in Jane Meyer's incredible New Yorker story about Thomas Drake (who signed this letter) from nearly three years ago. It talks about THINTHREAD, the program developed by William Binney (also signed on to the letter) as a system for sorting through information without violating the 4th Amendment, or the NSA's mandate. As was detailed both in Meyer's article, and again in this letter, THINTHREAD, which was developed prior to 9/11 for just a few million dollars, had built in a bunch of privacy and anonymity controls, but would also ease information sharing when necessary and appropriate. However, rather than use it, the NSA director at the time, Michael Hayden, chose to go with a plan from some outside defense contractors, costing billions of dollars, which didn't bother protecting the 4th Amendment or people's privacy. When the folks behind THINTHREAD reported this level of waste to the Inspector General, they were investigated, leading to various bogus charges against Drake (almost all of which were eventually dropped).
In the letter, Drake also discusses how, as the NSA exec in charge of figuring out the beset technology to fight against terrorism, he tried to get THINTHREAD reinstated. He also was asked to prepare a briefing for then head of the House Intelligence Committee, Saxby Chambliss (who's now a staunch NSA defender on the Senate Intelligence Committee) about why 9/11 happened. His initial report noted that the NSA knew all about the hijackers, but failed to share the info. He wasn't allowed to give that report.
At a SIGINT Leadership Team meeting in February 2002, SIGINT chief Maureen Baginski directed me to lead a NSA Statement-for-the-Record effort for a closed-door hearing scheduled by Sen. Chambliss for early March to discuss what NSA knew about the 9/11 hijackers and their plotting before 9/11.
As indicated above, the highly embarrassing answer was that NSA knew a great deal, but had not shared what it knew outside of NSA.
After a couple of weeks Baginski rejected my draft team Statement for the Record report and removed me from the task. When I asked her why, she said there was a ‘data integrity problem’ (not further explained) with my draft Statement for the Record. I had come upon additional damaging revelations. For example, NSA had the content of telephone calls between AA-77 hijacker Khalid al-Mihdhar in San Diego, CA, and the known al-Qaeda safe house switchboard in Yemen well before 9/11, and had not disseminated that information beyond NSA.
The letter goes on in great detail about the misleading claims by NSA defenders -- which we've discussed in the past -- that 9/11 could have been prevented if the bulk metadata collection was in use at the time.
It is unlikely that President Obama will respond to this in any manner. Over the past decade, the government worked hard to try to discredit Binner, Drake and the two other signatories, Edward Loomis and Kirk Wiebe (who both worked on THINTHREAD with Binney). Still, it's a powerful letter highlighting, yet again, how dysfunctional the NSA and the intelligence community are, how much of what they do seems to be driven by the corporate interests of defense contractors, and how little they seem to care about privacy or the Constitution.
Leaks coming out of the Obama administration suggest that the President is preparing mostly cosmetic changes to the intelligence community, following the recommendations from the intelligence task force -- which were much stronger than many expected. The reports suggest things like putting a public advocate to represent the public's views in certain cases before the FISC. This has been talked about for a while, and was the main concession plenty of people had been expecting anyway. That's hardly anything big.
The article talks about two other potential reforms. The first is shifting the holding of phone call metadata from the NSA to the phone companies, allowing the NSA to still search through it after getting a court order. While this may be a marginal improvement, it still has tremendous problems. It will almost certainly come with some sort of data retention law -- something that the feds have wanted for ages, and which civil liberties activists have been fighting against for years. Companies shouldn't be required to hang on to data they don't need, especially if getting rid of it can better protect their users' privacy. Furthermore, while not letting the NSA hang onto the data is a good thing, there is a reasonable concern that if the telcos are hanging onto the data themselves, that they, too, might do bad things with it, with little to no oversight.
However, most of the article from the LA Times focuses on National Security Letter (NSL) reform. We've written about those for years. NSLs are the way that the FBI can demand information from companies without any judicial review at all and, even more insane, with a complete gag order that prevents the recipient from telling anyone (including, at times, your lawyer). The FBI has an incredibly long history of "serious misuse" of NSLs, and has shown little to no interest in fixing the process. Nearly a year ago, a court actually ruled them unconstitutional, but there's an ongoing appeals process that will take quite a bit of time.
However, as the article notes, the DOJ/FBI and other surveillance maximalists are all horrified by the idea that Obama might actually require judicial approval of NSLs, for all but "emergency" situations. What this sounds like is that the President may suggest something along those lines, there will be a well coordinated press attack from surveillance hawks freaking out about the danger this puts us all in... and then he'll back down on that one point. And we'll be left with... basically nothing, but the President will go around insisting that he reformed the intelligence community, while everything more or less stays the same.
We've been hearing regularly from the NSA's biggest defenders -- including former NSA boss Michael Hayden, current head of the House Intelligence Committee Rep. Mike Rogers and President Obama -- that despite all of the revelations about the NSA, there hasn't been any evidence of abuses. We've discussed over and over and over again why that's clearly untrue. Over at the Guardian, Trevor Timm has done an excellent job laying out in detail how President Obama and others are simply lying when they say there's been no evidence of abuses by the NSA. He details example after example of abuses that have come to light. Here's just one which shows not just abuses, but a pattern of regular abuse:
For years, as new data came into the NSA's database containing virtually every phone call record in the United States, analysts would search over 17,000 phone numbers in it every day. It turns out only about 1,800 of those numbers – 11% – met the legal requirement that the NSA have "reasonable articulable suspicion" that the number was involved in terrorism.
What were the other 89% of the numbers being searched for? We're not exactly sure. But we do know that five years after the metadata program was brought under a legal framework, the Fisa court concluded it had been "so frequently and systematically violated that it can fairly be said that this critical element of the overall … regime has never functioned effectively".
Part of the issue, of course, is that the NSA's defenders, including the President, seem to be trying to redefine the word "abuse" just as they've tried to redefine lots of other common English words concerning their surveillance efforts.
One reason might be that, like many other words, the NSA has a different definition of "abuse" than most people. After LOVEINT was brought up to Director of National Intelligence general counsel Robert Litt on a conference call with reporters, he replied:
I'm using abuse in a slightly more limited term. I'm not talking about the LOVEINT kind of thing, but people using surveillance for political purposes or to spy on Americans more generally or anything like that, as opposed to individual people screwing up.
Apparently to qualify as "abuse", the surveillance has to be on a massive scale, wilful, in bad faith, hidden from the Fisa court, and it has to about political views. Spying on loved ones or unauthorized spying on criminal behavior does not count.
Even worse, as Timm points out (and as we've discussed in the past), the LOVEINT disclosures revealed that many of those very willful abuses were only "discovered" years later when they were self-reported, meaning that there's a very good chance that there are many more abuses that were never discovered or reported.
But, of course, there's an even larger issue. Abusing the programs (no matter how you define that) presupposes the programs themselves are legitimate. That's highly questionable.
With all that said, it's unclear why we're quibbling over whether or not the government truly abused the data it has. The programs themselves are an abuse. A primary reason the founding fathers declared independence from the British was in protest of "general warrants" – the idea that the police could seize everything in a given neighborhood, only to go through it afterwards and find the criminal.
The Fourth Amendment requires particularized, individual court orders, and as long as the NSA is collecting such a vast database on every innocent person in the United States, and then searching it at their own discretion, they are abusing our constitution.
As Timm says, we don't allow police to search our homes or listen to phone calls without individual warrants and then say it's okay so long as they "don't abuse" what they discover. We say that those searches themselves are an abuse and unconstitutional. The same should be true of the NSA's efforts. They're all an abuse. An abuse of the Constitution and basic rights.
The Daily Beast has an interesting article with a number of insider accounts, suggesting that President Obama is seriously leaning towards cutting back the NSA's activities. I'll believe it when I see it -- and there's still a compelling argument that all of these moves are really just an attempt to block or delay serious judicial or Congressional review of these programs. However, there are some very interesting tidbits in the article, including this chastising of NSA boss Keith Alexander for trying to dazzle Obama with tech jargon:
But behind the scenes, Obama was showing some irritation with the intelligence leadership that had pressed for these capabilities and repeatedly vouched for their value. One story that rocketed around the intelligence community involved a meeting between Obama and NSA Director Keith Alexander. Alexander, who holds advanced degrees in physics and electronic warfare, was trying to explain certain aspects of one of the surveillance programs to Obama. As his highly technical and jargon-laden presentation rambled on, Obama was beginning to lose patience. When he finished, Obama thanked him and then icily asked if he could do it over again, "but this time in English."
Some of this fits with earlier statements, in which President Obama more or less admitted that he had no idea what the NSA was up to -- and that only after he found out about stuff in the press did he go back to Alexander and others and find out what the NSA was really doing. At the very least, that suggests incredibly poor leadership skills and five years in which he more or less let the agency run itself with little real oversight.
In fact, the article suggests this may be the case. Despite the fact that Obama, prior to becoming President, supported a number of changes to the surveillance state, upon becoming President, it appears that he let folks like Alexander talk him out of it.
As a senator and as a presidential candidate during the 2008 campaign, Obama harshly criticized the Bush administration's warrantless wiretapping program. But shortly after taking office, he was persuaded by officials that the programs had been placed on a firmer legal foundation and were necessary. He had been briefed on occasional compliance lapses so serious that the secret court overseeing the surveillance programs had threatened to shut them down. But each time he was reassured that no harm was done.
There is no evidence to suggest that Obama expressed much skepticism about the surveillance program during his first term. He was assured on numerous occasions that the NSA's bulk metadata program, which tapped the phone records--though not the content--of virtually all Americans, was a vital tool for foiling terrorist attacks in the United States.
All of this suggests that the President felt he should focus on other things that seemed more pressing, and just accepted the claims of the NSA and its supporters that these programs were both important and legal -- two things that deserved significant scrutiny. But, of course, so long as those programs were kept secret, they weren't "pressing" issues, so Obama could get away with just accepting the claims from the NSA as factual. Since that's changed, he's actually needed to find out what his own NSA is doing, leading to the task force, the changes, and the fact that he's no longer so easily bamboozled with tech jargon from an NSA boss whose specialty seems to be answering questions by not actually answering questions.
I'm still skeptical that we'll see real reform coming out of this part of the process, but hopefully the article accurately shows that President Obama is finally taking a real interest in this, and is no longer simply accepting the claims of the intelligence community.
Chris Sevier, the Nashville attorney* who sued Apple back in July for failing to prevent him from accessing porn on his iPhone (citing unfair competition and breach of marital contract -- apparently, Mrs. Sevier can't keep up with the seductive wiles of thousands of interchangeable "21-year-old porn stars"), has decided to return to the public eye with another baffling legal filing. This time, Sevier is targeting A&E for cutting ties with Duck Dynasty figurehead Phil Robertson** over his anti-gay remarks delivered earlier this month.
* The term "attorney" is used loosely here. As a whip smart and deadly handsome commenter pointed out back in July, Sevier's license to practice law has been temporarily revoked and placed on "disability inactive status," which basically means the court finds him (at this point) too mentally incompetent to represent others in the legal arena.
** Despite Robertson's name being all over the news and Sevier a self-avowed "member" of Robertson's "church," Sevier misspells his name as "Roberson" dozens of times throughout the filing.
Sevier's 92-page filing is a heavily-illustrated half-rant that seeks injunctive relief for Chris Sevier, who feels he too will be "unfairly discriminated against" (like Phil Robertson) because of his religious beliefs. (Obviously, he can't represent Robertson, what with being short both Robertson's permission and a license to practice law in Tennessee.) For added fun, Sevier also lists GLAAD, Wilson Cruz (actor and member of GLAAD) and President Barack Obama as defendants. [All misspellings and grammatical errors are from the original.]
Like Mr. Roberson, I have a continuing economic expectation with the Defendants, and I now because of their reckless decision without due process, I myself directly have the reasonable apprehension of being discriminated against under the "chilling effect doctrine." This fear of inevitable discrimination for being a Christian, who ardently opposes something as despicable as homosexual conduct gives rise to a claim under 28 U.S.C. 2201 against the Defendants, who are obviously furthering the "pro-gay" agenda through their "symbolic" and "joint" relationship with the Obama administration, which has reduced itself to the poster child of poor leadership. It was not by accident that President Obama felt "compelled" to inject himself in this controversy after the fact to try to reverse the damage caused by his backfiring social agenda that blatantly affronts the will of God.
Sevier's one saving grace is that he doesn't approach this as a First Amendment issue like many others have. Instead, he presents A&E's actions as a violation of the Title VII of the Civil Rights Act -- discrimination based on religion.
In response, A&E took adverse administration action against him without due process, discriminating against him, and members of our organization for beliefs that we hold as sacred and self-evident knowing that Mr. Robertson legally classifies as a "public figure." A&E took these measures in step to further a political initiative acting under the color of a state actor to send a chilling effect to Christians to further a "hot button" political matter. It was not by accident that President Obama involved himself directly in this matter, speaking out against after the fact that engaged in per se discrimination and "hypocrisy."
Now, part of Sevier's argument hinges on Obama's supposed involvement in this debacle. According to him, Obama's choice to "inject" himself into this debate makes A&E a "state actor," and as such, its actions are unconstitutional. The only problem with this -- and it's a major problem -- is that this supposed "injection" never happened. Sevier quotes an entire article he found online, supposedly featuring President Obama calling for Phil Robertson's reinstatement. (A screenshot of this article can be found in the attached exhibits, half of which have been attached upside down.)
On December 19, 2013, Calling suspension of 'Duck Dynasty' patriarch Phil Robertson "a chilling crackdown on free speech in an artistic community that should value individual expression," President Barack Obama urged the Arts Entertainment network to reinstate Robertson immediately, and to apologize for its "hypocrisy." (see exhibit)
President Obama stated: "There are no bigger fans of Duck Dynasty than Michele and me. . . .and while I have my disagreements with Mr. Robertson's Views on homosexuality, as expressed in GQ magazine, I'll defend with my last breath Robertson's right to express those views…"
This matters little to Sevier, who states the following:
The significance of President Obama's involvement in this controversy shows that under the current political climate in this country was acting under the color of state action when it took adverse administrative action against Mr. Roberson without due process.
Except that this NEVER HAPPENED.
Once the court addresses this issue, Sevier's case will be gutted. Not that it isn't already pretty much just a shell already, seeing as Sevier is seeking an injunction to ensure that he won't be persecuted in the future for his religious beliefs. (Which aren't really "religious beliefs" as much as they are personal beliefs being propped up by convenient pull quotes from the Bible…)
Sevier's rambling wreck of a lawsuit stumps for Rick Santorum's Christian TV network, calls pro-gay rights activism racism, name drops both Bill Maher and Ke$ha, and uses his military career as a flag-waving place to make logical leaps from.
It is also been the Obama administrations overt policies to persecution Christians. As a combat Army Officer and member of the United States Judge Advocate Core, who served in an 06 capacity (Full Bird Colonel*) during operation Iraqi Freedom, I can personally attest to seeing Obama's pro-gay-self-justification activity play out first-hand. The repeal of "don't ask don't tell" and making "proselytizing illegal" in the military were just the first steps in the quest to convert America from a "Christian nation" into a "gay one," elevating mans Ways over God's.
* Sevier's attached filing seeking reinstatement directly contradicts this claim of "bird colonel" rank, pointing out that he topped out at First Lieutenant.
As further "evidence," Sevier quotes indie rock darlings The Postal Service...
So, in turning to a secular rock band other than* ZZ top, Death Cab's side project, The Postal Service, release a single "Such Great Heights." The lyrics read, "God himself did make us into corresponding shapes, like puzzel pieces from the clay." One does not have to have much in the way of common sense to use their own two eyes and see that a males body parts correspond with a females.As these lyrics indicate, God obvious created "the round peg to go into the round hole" so to speak. When these corresponding shapes are put together, such a union has the potential to be life giving, not only metaphysically, nerochemically, emotionally, socially, but literally.
* Well, if we must…
compares homosexuals to a variety of human debris, including drug addicts and *gasp* skate boarders...
The Pope encouraged the body of Christ to welcome homosexuals into the church in the same Way that the church is expressly commanded in the Bible to embrace prisoners, prostitutes, drug addicts, thieves, rabble rousers, adulterers, skate boarders, EDM singers, porn addicts, rednecks, and all other types.
points out how A&E and Obama are almost literally Hitler...
The only way to stop the Christians is to persecute and them suppress them into silence. That is what Himmler planned to do and that is precisely what did when it took unilateral adverse action against brother Robertson. This is also exactly what the Obama Administration's agenda has set out to accomplish in a direct and round about way*…
* 'direct and round about way?'
uses made-up words as scientific evidence…
This does not leave room for the idea that members of the same sex should be molesting each other, which serves to not only deplete oxytosen levels but causes them to miss out on a prospective life giving relationship that with the potential of being marked with God's favor.
and points out that mainstream America has no interest in ungodly, gay-loving TV stars.
The Defendants needs to take note of the fact that nobody wants to buy an American Hoggers T-shirt. Upon information and belief, there is not a single person in the Universe wearing the "Kardasian family" t-shirt. But the merchandise in stores like Walmart that associate with the Roberson family continues to fly off the selves. This is because we are spiritual beings, and millions of Americans connect with the Roberson family and what they represent.
Sevier also grants himself multiple opportunities to fully explore his persecution complex:
It should be abundantly clear to this Court by now given other controversies I have been involved in that I am both a whistle blower and no strange to persecution for my religious beliefs. [As the Court has seen in pre-existing lawsuits, I have received actual death threats, after demanding that Apple and Hewlett-Packard comply with the laws that prohibit the selling of obscene pornography to minors.]
He also trots out some advanced sexual theory that puts gay sex in the same neighborhood as bestiality while proposing that people can switch teams by simply having orgasms with the opposite sex. (And leaves everyone unsatisfied by dangling an unclosed bracket...)
Homosexual men and women can become conditioned to desire members of the opposite sex because of classic conditioning that is reinforced by orgasm through sexual encounter with the member of the same sex. This principle could apply to beastiality as well, if one were to use a animal as a sex object. [There are studies cases of men who prefer a blow up dolls to a real woman because they get conditioned to having intercourse with a blow up doll - causing them to miss out on a superior prospective life giving relationship with a tangible member of the opposite sex…
In June of 2013, I filed a lawsuit against Hewlett Packard and Apple to make them comply with the laws that prohibit retailers from selling smut to minors that can be found on the books of every state in our union for good cause. That lawsuit made international news for good reason. The evidence* shows that partly in response to the discussion that I started, the British Prime Minister began championing my proposed solutions to make it harder to access pornography online, which would push our world back towards innocence. The evidence demonstrates through studies, like those released by the Withspoon Institute, that online pornography is proliferating the demand side of sex trafficking, child pornography, and reaping havoc** on intimacy, marriages, and the quality of life for millions of Americans.
* You keep using that word… ** As they sew, so shall they reap...
The insanity doesn't stop with the complaint, though. As an added bonus, Sevier has attached a petition to have his license reinstated -- a petition that leaves no bridge unburnt.
I am not in the mood to be violated any long by Tennessee Supreme Court justices, who are not only past their prime for practicing law in terms of their age and career wise, but who have acted immorally by ratifying discrimination against a combat veteran, engaged in libel per se, and implicated themselves in abuse of process and malicious prosecution…
Since the Tennessee Supreme Court members are literally acting like children, I have the right to expose you as such to the public so that you will not be re-elected to the bench. The Tennessee Supreme Court has demonstrated contempt for service members and for HIPPA in these matters. Anyone with common sense can see that I have been completely violated by the Tennessee Supreme Court's actions given the pending lawsuit against the Board members and the Tennessee Supreme Court's acknowledgement that it reached its decision on medical records that were confidential...
To be fair, Sevier doesn't seem to have much interest (or much hope) of being reinstated. This may be mostly sour grapes, though. He seems mainly interested in getting the final word.
I want to be able to say that I deactivated my TN law license out of protest because I do not want to have anything to do with such a dishonorable entity. I also want my status switch to remove the public stigma that the TNSC helped create in conjunction John Rich* that I am a "mentally ill stalker," so that my efforts to fight the hell out sex trafficking and child porn will not be interfered with, given the pending Apple/HP lawsuit in Federal Court.
Sevier also threatens the court with the combined weight of his recording industry connections, something that will undoubtedly force it to continue ignoring his requests.
[I] have worked in the music business. I will use every resource I have in that industry to bring accountability to the individuals on the bench making this decision through the Court of public opinion* You'll find yourselves outmatched here.* I'll even humbly ask Rolling Stone Magazine to cover these matters, along with my simultaneous musical developments in EMD** (that's electronic dance music for those who are too out of touch to know)... Additionally, I'll ask these musical publications to keep track of my Apple lawsuit along with a serious of other ones that are bound to make international news once again. I am presenting a new kind of "rock star," one who not only makes music, but who lashes out publicly against people in positions of authority who elect to misuse it for personal reasons…
Normally, I have great respect for authority. It is a privilege to be submissive...***
* Whoa, we've got a badass here. ** Well, not when it's abbreviated that way... *** Or not.
Sevier points out early in his novel-length filing that he's going to use "layman's terms" in order to make everything abundantly clear to both the court and other readers. That's a nice thought, but I would imagine his use of layman's terms has more to do with a limited legal vocabulary than a desire to connect with the "common man." This is the same man who claimed in his lawsuit against Apple that he accidentally typed in "fuckbook" rather than "facebook," a finger fumble that led directly to his porn addiction -- an addiction that is totally the fault of Apple, HP… anyone else who isn't Chris Sevier.
Now, Sevier's worried that his religious anti-gay beliefs will keep him from successfully licensing his next album of "dubstep-electronic-trance-house-hardstep" songs to production companies like A&E or Disney. As a member of Robertson's church (more accurately described in his filing as being a member of Robertson's church's Facebook group), Sevier can only look forward to a future of gay marriage and declining income. And it's all Obama's fault.
The self-described "most transparent administration in history" is once again being chastised by the courts for burying documents demanded by the public. In November, the DOJ flat out refused a FISC court order to declassify a document pertaining to the government's interpretation of Section 215 of the PATRIOT Act. The DOJ's response was basically, "Yeah, we heard you. But we're not doing it."
Rejecting one of the Obama White House's most aggressive attempts to preserve executive branch secrecy, a federal judge Tuesday ordered the disclosure of a government-wide foreign-aid directive President Barack Obama signed in 2010 but refused to make public.
The Justice Department asserted that the Presidential Policy Directive on Global Development [PPD-6] was covered by executive privilege, even though it is unclassified and reflected standing guidance to agencies rather than advice given to the president.
Judge Ellen Huvelle ordered this document delivered to her under seal last month, but has been stonewalled every step of the way. As Huvelle's order notes, PPD-6 has already been "widely circulated" within the Executive branch.
As one example, lower-level staff members at State and USAID used the PPD-6 during their preparation of the First Quadrennial Diplomacy and Development Review. [...] The team responsible for that review... included QDDR senior leadership, a fourteen-member executive council, four drafters and editors, and a QDDR leadership team of at least twenty people from the Departments of State and Defense, the USAID, and the Millennium Challenge Corporation, including an “Office Management Specialist,” several “Staff Assistant[s],” and an advisor serving as a Presidential Management Fellow.
Despite this being passed around to even low-level staffers, the DOJ continues to insist it is exempt from FOIA requests under Exemption 5, which pertains narrowly to "communications between the President and his advisors." Huvelle points out that this exemption has been deployed before, but never in the way the current administration is attempting to.
As noted, no case has addressed this privilege in terms of a presidential directive. Rather, courts have considered the application of the presidential communications privilege to audio recordings of confidential communications between the President and his advisers, deliberative documents created by White House advisers, but never viewed by the President, agency documents created to advise, but never reaching, the Office of the President, and advisory documents from an agency that were not solicited, but were received, by the President.
But never before has a court had to consider whether the privilege protects from disclosure under FOIA a final, non-classified, presidential directive that has been distributed widely within the Executive Branch and serves as guidance for several policy-making bodies, including twenty-two Executive Branch agencies, as well as the NSS and National Security Council (“NSC”) Deputies and Principals.
Huvelle refers to the DOJ's claim of executive privilege as "amorphous" and that this assertion relies "solely on the broad, undifferentiated claim of public interest in the confidentiality of the document." According to Huvelle, the DOJ is simply making it up as it goes along. It says the document was distributed on a "need to know" basis, but evidence exists that any staffers' "need to know" was determined ad hoc by other staffers in the various offices the order was distributed to.
More damning (but less surprising), the judge had some harsh words for the administration itself.
The judge also suggested the administration had lost sight of the purposes of the Freedom of Information Act and transparency itself.
"The government appears to adopt the cavalier attitude that the President should be permitted to convey orders throughout the Executive Branch without public oversight ... to engage in what is in effect governance by 'secret law,'" Huvelle said.
This administration has shown over the years that it can keep up with the previous regime in terms of secrecy and obfuscation. In some cases, it has even surpassed it. Despite the growing body of evidence to the contrary, the administration still attempts to portray itself as an ambassador of openness -- a new watershed in governance. But there's nothing going on here that distinguishes it from Bush's two terms, or Nixon's truncated stay in the White House for that matter.
Russian President Vladimir Putin gave a big press conference on Thursday, and spent some time talking about President Obama, Ed Snowden and the various US surveillance programs that have been revealed. Putin appeared to be quite supportive of the surveillance programs, saying that he believes that the US's surveillance programs are a "necessity" and "mainly directed at fighting terrorism," so there's not a real problem with them. He even defended collecting data on everyone "because you have to monitor not only a specific terrorist suspect, but rather his whole network of relationships." That Vladimir Putin would appreciate vast spying power is hardly a surprise. But this claim is raising some eyebrows:
"How do I feel about Obama after Snowden's revelations? I envy him because he can do this without incurring any consequences."
Did you catch that? Putin, the former head of the KGB, and very well known for using Russian intelligence services to his strong advantage is envious that President Obama has all this surveillance capabilities at his fingertips and that all of this can be revealed "without incurring any consequences." It seems like there should be a general rule of thumb: when Vladimir Putin is envious of your surveillance state, you've gone too far.
There was an earlier report in the Washington Post that one of the tech execs who met with President Obama on Tuesday had directly said that the President should issue a pardon for Ed Snowden -- something the President immediately said he could not do. There had been some speculation on which exec said that, but according to CNN, it was Mark Pincus, the founder of social gaming company Zynga:
A source familiar with the meeting told CNN Chief Washington Correspondent Jake Tapper that one of the executives, Mark Pincus, founder of Zynga, which makes on-line social games, suggested to the President that he pardon NSA leaker Edward Snowden, but Obama said he could not do that. The suggestion of the pardon was first reported by the Washington Post.
Hopefully other execs will follow on that lead and start speaking out. Given everything that's happened in the past six months, the idea that the US is still trying to arrest Snowden and charge him under the Espionage Act is a growing travesty that makes the administration look ridiculously petty. A true leader knows when to admit to making mistakes. The President has an opportunity that he's squandering.
What we have below is actually a ProPublica post by Kara Brandeisky, posted back in August of this year, but republished here under ProPublica's Creative Commons license. However, given the White House task force's recommendations, we thought it might be useful to be reminded what Senator Obama fought for concerning surveillance before he was President. Many of these look remarkably similar to what the task force proposes...
When the House of Representatives recently considered an amendment that would have dismantled the NSA's bulk phone records collection program, the White House swiftly condemned the measure. But only five years ago, Sen. Barack Obama, D-Ill. was part of a group of legislators that supported substantial changes to NSA surveillance programs. Here are some of the proposals the president co-sponsored as a senator.
As a senator, Obama wanted to limit bulk records collection.
The measure Obama supported in 2007 is actually similar to the House amendment that the White House condemned earlier this month. That measure, introduced by Reps. Justin Amash, R-Mich., and John Conyers, D-Mich., would have ended bulk phone records collection but still allowed the NSA to collect records related to individual suspects without a warrant based on probable cause.
The amendment failed 35-63. Obama later reversed his position and supported what became the law now known to authorize the PRISM program. That legislation — the FISA Amendments Act of 2008 — also granted immunity to telecoms that had cooperated with the government on surveillance.
The law ensured the government would not need a court order to collect data from foreigners residing outside the United States. According to the Washington Post, analysts are told that they can compel companies to turn over communications if they are 51 percent certain the data belongs to foreigners.
Powerpoint presentation slides published by the Guardian indicate that when analysts use XKeyscore — the software the NSA uses to sift through huge amounts of raw internet data — they must first justify why they have reason to believe communications are foreign. Analysts can select from rationales available in dropdown menus and then read the communications without court or supervisor approval.
Finally, analysts do not need court approval to look at previously-collected bulk metadata either, even domestic metadata. Instead, the NSA limits access to incidentally collected American data according to its own "minimization" procedures. A leaked 2009 document said that analysts only needed permission from their "shift coordinators" to access previously-collected phone records. Rep. Stephen Lynch, D-Mass., has introduced a bill that would require analysts to get special court approval to search through telephone metadata.
As a senator, Obama wanted the executive branch to report to Congress how many American communications had been swept up during surveillance.
Feingold's 2008 amendment, which Obama supported, would have also required the Defense Department and Justice Department to complete a joint audit of all incidentally collected American communications and provide the report to congressional intelligence committees. The amendment failed 35-63.
The Inspector General of the Intelligence Community told Senators Ron Wyden, D-Ore., and Mark Udall, D-Co. last year that it would be unfeasible to estimate how many American communications have been incidentally collected, and doing so would violate Americans' privacy rights.
As a senator, Obama wanted to restrict the use of gag orders related to surveillance court orders.
Obama co-sponsored at least two measures that would have made it harder for the government to issue nondisclosure orders to businesses when compelling them to turn over customer data.
One 2007 bill would have required the government to demonstrate that disclosure could cause one of six specific harms: by either endangering someone, causing someone to avoid prosecution, encouraging the destruction of evidence, intimidating potential witnesses, interfering with diplomatic relations, or threatening national security. It would have also required the government to show that the gag order was "narrowly tailored" to address those specific dangers. Obama also supported a similar measure in 2005. Neither measure made it out of committee.
The Obama administration has thus far prevented companies from disclosing information about surveillance requests. Verizon's surveillance court order included a gag order.
Meanwhile, Microsoft and Google have filed motions with the Foreign Intelligence Surveillance Court seeking permission to release aggregate data about directives they've received. Microsoft has said the Justice Department and the FBI had previously denied its requests to release more information. The Justice Department has asked for moretime to consider lifting the gag orders.
As a senator, Obama wanted to give the accused a chance to challenge government surveillance.
Until recently, federal prosecutors would not tell defendants what kind of surveillance had been used.
The New York Times reported that in two separate bomb plot prosecutions, the government resisted efforts to reveal whether its surveillance relied on a traditional FISA order, or the 2008 law now known to authorize PRISM. As a result, defense attorneys had been unable to contest the legality of the surveillance. Sen. Dianne Feinstein, D-Calif., later said that in both cases, the government had relied on the 2008 law, though prosecutors now dispute that account.
On July 30, the Justice Department reversed its position in one bomb plot prosecution. The government disclosed that it had not gathered any evidence under the 2008 law now known to authorize sweeping surveillance.
But that's not the only case in which the government has refused to detail its surveillance. When San Diego cab driver BasaalySaeedMoalin was charged with providing material support to terrorists based on surveillance evidence in Dec. 2010, his attorney, Joshua Dratel, tried to get the government's wiretap application to the Foreign Intelligence Surveillance Court. The government refused, citing national security.
Dratel only learned that the government had used Moalin's phone records as the basis for its wiretap application — collected under Section 215 of the Patriot Act — when FBI Deputy Director Sean Joyce cited the Moalin case as a success story for the bulk phone records collection program.
As a senator, Obama wanted the attorney general to submit a public report giving aggregate data about how many people had been targeted for searches.
Under current law, the attorney general gives congressional intelligence committees a semiannual report with aggregate data on how many people have been targeted for surveillance. Obama co-sponsored a 2005 bill that would have made that report public. The bill didn't make it out of committee.
Despite requests from Microsoft and Google, the Justice Department has not yet given companies approval to disclose aggregate data about surveillance directives.
As a senator, Obama wanted the government to declassify significant surveillance court opinions.
Currently, the attorney general also gives congressional intelligence committees "significant" surveillance court opinions, decisions and orders and summaries of any significant legal interpretations. The 2005 bill that Obama co-sponsored would have released those opinions to the public, allowing redactions for sensitive national security information.
Before Edward Snowden's disclosures, the Obama Justice Department had fought Freedom of Information Act lawsuits seeking surveillance court opinions. On July 31, the Director of National Intelligence released a heavily redacted version of the FISA court's "primary order" compelling telecoms to turn over metadata.
In response to a request from Yahoo, the government also says it is going to declassify court documents showing how Yahoo challenged a government directive to turn over user data. The Director of National Intelligence is still reviewing if there are other surveillance court opinions and other significant documents that may be released. Meanwhile, there are severalbills in Congress that would compel the government to release secret surveillance court opinions.
It came out yesterday that President Obama was scheduled to meet privately with a group of "tech" execs officially about the status of the healthcare.gov website. However, as some expected, it appeared that the meeting focused much more on the NSA's overreach and the need for reforms. While somewhat disappointing that the meeting was held privately, it looks like the execs made it clear that the NSA surveillance efforts were doing a lot more harm than good and something needed to change.
Schmidt, of Google, opened the meeting and laid out industry officials' concerns. Obama seemed sympathetic to the idea of allowing more disclosure of government surveillance requests by technology companies, according to a tech industry official who was briefed on the meeting. The official asked to remain anonymous because the meeting was private.
Mayer, the Yahoo! executive, brought up concerns about the potentially negative impact that could be caused if countries, such as Brazil, move forward with legislation that would require service providers to ensure that data belonging to a citizen of a certain country remain in the country it originates, the official said.
That would require technology companies to build data centers in each country — a costly problem for American Internet companies, the official said. The White House noted in a statement after the meeting that the group discussed the "economic impacts of unauthorized intelligence disclosures."
We've been saying since the Snowden leaks first came out that the tech industry needed to be a lot more vocal about how bad the NSA's actions are for pretty much everyone, so it's good to see at least some effort to continue to push that story. Of course, the list of attendees also includes AT&T's Randall Stephenson -- and AT&T has been one of the companies most complicit in the NSA's activities, something the company refuses to talk about, and unlike the actual tech companies, seems completely unwilling to address.
