President Obama's Weak Defense Of NSA Spying On Charlie Rose

from the say-what-now? dept

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.

Filed Under: barack obama, charlie rose, nsa, nsa surveillance, transparency