No Mr. President, The NSA’s Programs Don’t Have Proper Oversight
Contrary to President Obama's assertion today, the NSA's operations don't have proper legislative or judicial oversight.
Timothy Lee points out why President Obama’s assertion that we can trust Congress to properly oversee the actions of organizations like the National Security Agency is completely wrong:
When the government has briefed members of Congress on its surveillance activities, it has often been in meetings where “aides were barred and note-taking was prohibited.”
It’s impossible for Congress to provide effective oversight under those conditions. Members of Congress rely on staff to help them keep track of legislative details. They need independent experts to advise them on complex technical issues. And they need feedback from the constituents they ultimately represent. But the senators briefed on these programs couldn’t speak about them. Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) were reduced to spending years trying to hint at the existence of programs they weren’t able to actually tell anyone about. Only now can anyone see what it is they were trying to tell us.
Meanwhile, the 2008 FISA Amendments Act cut judges out of their traditional role of reviewing individual surveillance requests. Instead, it asks judges to approve broad categories of surveillance. The law gives judges little leeway to reject proposed surveillance programs, and in any event judges lack the expertise and resources to perform this quasi-legislative oversight role effectively.
With both Congress and the courts effectively neutered, their traditional functions — defining the rules and making sure they’re enforced — are now largely being performed inside the executive branch. In place of legal standards defined by Congress and enforced by an independent judge, we now have “minimization procedures” defined by some executive branch officials and applied by others. There’s no opportunity for public debate about these rules and no independent oversight into whether the rules are being followed in individual cases. And there’s ample evidence that letting the executive branch police itself is a recipe for abuse.
I would think it would be purely axiomatic that the Executive Branch cannot, and should not, be trusted to police itself, and that would seem to be especially true when it comes to areas like this that are completely secret and hidden from the view of both Congress and the Courts. Under those circumstances, and under the restrictions that even members of the Intelligence Committees are faced with when they are briefed on classified matters, it seems for all the world like this is oversight in name only. I’m not suggesting that the closed sessions of the House & Senate Intelligence Committees, or the closed proceedings of the FISA Courts, be opened to the public. The need for secrecy in those situations is, I think self-evident. However, if Congress and the Courts are unable to actually do anything effective even after acceding to the intelligence community’s need or secrecy, then the entire process ends up being entirely pointless.
Lee puts forward his idea of what needs to be done:
The key principle is that there needs to be someone monitoring each investigation to ensure the rules are being followed. That person needs to have the authority to block information requests that don’t comply with the law. And that person needs the independence that only members of the judicial branch enjoy.
The broad parameters of America’s domestic surveillance activities should be set by Congress, not the president. The FISA Amendments Act delegated way too much of this rule-making authority to the executive branch. But Congress can’t have a meaningful debate — either about whether mass surveillance is a good idea or how to develop effective judicial oversight — while even general information about the NSA’s activities is shrouded in secrecy.
The Obama administration claims that this week’s news “risks important protections for the security of Americans.” It’s more likely the disclosures risks sparking a more robust debate about America’s unaccountable surveillance state.
That last point is one that many observers, such as Reason Magazine’s Mike Riggs have made in the last several days and, earlier today, Conor Friedersdorf ascribed it to the Obama Administration’s desire to thwart meaningful debate on the tension between civil liberties and national security:
President Obama kept the data collection in question a highly classified state secret. If it were up to the White House, we wouldn’t know of the program’s existence, ever. As a consequence, there would have been no debate about its appropriateness. If Obama values debate, he doesn’t value it as much as keeping secrets that inevitably make debate impossible. Senators like Ron Wyden plead for an open debate. Obama thwarted them. The president’s fans claim that he speaks to Americans like we’re adults. Here his White House is treating us like gullible children.
And not only here. There are a whole range of national-security matters on which Obama has preempted debate. Sometimes he does so by pretending that he himself is uncomfortable with the very position he is implementing, and has already decided to change course, even though the change never comes. But what most demonstrates his disingenuousness is the instances in which he has kept some subjects classified even after they were openly discussed, to avoiding having to debate them, both in court and in the public square, on more equal terms with his civil-libertarian critics. In those cases, his method of “debate” was secretly authorizing leaks to convey his often-misleading position, but refusing to speak on the record — after all, drone strikes were classified.
Obama doesn’t get to behave as he has and does, and benefit from the impression that he is an enlightened lover of debate who’d never dream of short-circuiting the crucible of public discourse.
Friedersdorf is right, of course. It’s hard to have a public debate about something that nobody but the people in power actually know about. Especially when those who do know, even the people’s representatives in the House and the Senate, are forbidden by law from even hinting at what they know in public. How it’s even possible for there to be a robust debate on these issues under these conditions I can’t even begin to fathom. However, I think that’s exactly how the people in power want it.
“Hey, Senator, the NSA can look at everyone’s browser history and credit card receipts.”
“Well, since I can’t take notes, and since all I control is the NSA’s actual, you know, budget, and what with me only having the power to write and pass laws, hey, I guess I’m powerless.”
Hmm. I remember millions of Democrats warning about the dangers of the road we put ourselves on with the Patriot Act and other unappealing aspects of the war on terror.
I also remember millions of conservatives responding with clever quips like “Bin Laden appreciates your support”…
And yet the vast majority of Democrats in the House and Senate voted in favor of the PATRIOT Act when it was up in October 2001, and have voted to renew its provision on several occasions to date.
David Simon, who is smarter than most people talking about this and has a lot of actual knowledge about the business of wiretapping and data collection for law enforcement, has a great piece up on his site.
Read the whole thing, as they say.
If you don’t want your communications recorded, captured, or monitored in any way that the government can access, stop transmitting them via cables and radio waves. If you thought they were private to being with, you’re a fool.
Congress voted down amendments to the law that would have made these things more transparent. Unless members of Congress face harsh re-election chances for those votes, this will not change.
It’s not even really a matter of whether their aides can take notes for them or not. It’s a matter of votes they have already made to keep the whole thing secret.
I don’t believe this myself, but Obama’s reticence to discuss the laws openly might just be him following the law.
@ Doug Mataconis
That’s true. Democrats on the hill supported both the Patriot Act and the Iraq War. They made the craven calculation that, in a post 9.11 world, a high profile vote that an opponent could portray as being weak on national security might just be a career killer. In my above comment, I am talking about the rank and file.
At any rate, the surveillance state is baked in now. That horse has left the barn, and it ain’t going back. The average person can only take solace in the fact that they are probably not important enough to attract any attention, while at the same time hoping that we don’t get another Cheney or Nixon in the White House.
We are living in the world that we created. Why is anyone surprised? Bin Ladan must be laughing in his grave, maybe he did destroy American on 9.11…
This is why civil libertarians can’t have good things. Isn’t it bleeding obvious why a bunch of Senators and their aides aren’t allowed to take detailed notes of secret operations, and to take those notes out of the briefing rooms?
Also too, what Michael said. The Senators have the power of the purse, and can set any damn oversight procedures they want.
Yet the fact is that the judge CAN reject surveillance requests. Lee’s ipse dixit that the judges are helpless to provide oversight is unconvincing.
Congress can have a debate on this any time they want. The debates have been done and the votes have been taken. Congress has repeatedly authorized and indeed even instructed the executive to carry out these secret surveillance operations.What’s happened is that the civil libertarians have lost those debates in Congress. Repeatedly.
You do understand that Congress wrote and voted for those laws, right?
@Doug Mataconis:
And in 2011 the majority of House Democrats voted not to renew the Patriot Act , although the President was a Democrat.The House Republicans voted overwhelmingly to renew the laws. Kind of suggests that if you were really concerned about repealing the Patriot Act, you should vote for Democrats, eh?
@michael reynolds: “Hey, Senator, the NSA can look at everyone’s browser history and credit card receipts.”
“Well, since I can’t take notes, and since all I control is the NSA’s actual, you know, budget, and what with me only having the power to write and pass laws, hey, I guess I’m powerless.”
You’re a hate-mongering sociopath, but you’re not gullible.
“Senator, why are you pushing to cut the NSA’s budget?”
“Um… er… ah…”
“Can you give me one good reason why we should strip their funding and restrict their authority? Can you tell us just one thing they’ve done that is so wrong and dangerous?”
“Well… no, I can’t.”
The legislators who know the most about the NSA’s activities are legally constrained to not divulge it, not even to hint at it, under risk of criminal penalty. Even if they disagree vehemently with what the NSA does, they can’t do a damned thing about it without putting themselves at legal jeopardy.
@stonetools: Yeah. I did a doubletake at this phrase
How could that possibly have happened to them. And what could they possibly do about it?
@Jenos Idanian: Or they could leak information to the press.
Come to think of it…
@Tillman: Yeah, leak information to the press. Like, say, James Rosen of Fox News? Maybe that’s why the Justice Department called him a “co-conspirator” and “flight risk” in the warrant application for his records…
@gVOR08: Gee, what a surprise. Your first response is to snark, not to either acknowledge the problem or to suggest a solution.
I’m starting to see a pattern here.
The NSA programs didn’t have proper oversight.
The IRS programs didn’t have proper oversight.
The Benghazi operations didn’t have proper oversight.
The ATF’s Fast & Furious didn’t have proper oversight.
The Justice Department’s programs didn’t have proper oversight.
If only there was some single authority over all these branches that — even if it couldn’t micromanage each agency — could at least set a tone that established that certain things were unacceptable, that could appoint people at the top of these agencies who held solid core principles and enforced them, that could exercise some kind of authority over these vast bureaucracies and declare some things are intolerable and would actually, you know, not tolerate them…
Sorry. Pipe dream there.
Well, this thread had potential, but that, like our quaint mid twentieth century notions about privacy, is gone…
@ Jenos
Actually, he did. But it was done in a clever, not an obvious way, and there were no hot Faux babes in short skirts to break it down for you.
Hence your confusion…
@Jenos Idanian: Yeah, like James Rosen. And Ailes would put his best lawyers behind that guy’s defense because, wow, this is real “state surveillance of innocent Americans” stuff. Being the exclusive on this story would not only incite the base but make Ailes a fortune.
Hell, now I think a Senator on one of the intelligence committees was the source. Probably a Democrat since they went to the Guardian.
@Tillman: Hell, now I think a Senator on one of the intelligence committees was the source. Probably a Democrat since they went to the Guardian.
And, I presume, you support a rigorous investigation into the source of this leak? As rigorous as the investigations that led to the AP and Fox News?
Sorry, Conor, but I haven’t laughed that hard in a long time……
@Doug Mataconis: Of course they voted for it. The country showed it’s true, yellow colours back then, and it would have been political suicide to vote against it.
@mantis:
Love me some David Simon!
This is in line with what I was getting at in James’ earlier post. Conflating meta-data on phone calls and transactions with wiretapping and illegal searches seems ill-informed. Eavesdropping on my conversation in a restaurant is an invasion of my privacy, but knowing I was at the restaurant and how long I was there is not. My being in public makes it thus.
@Jenos Idanian: For a casebook example of how the government treats citizens and ignores the Constitution, see information about the 1965 Kecksburg, Pennsylvania incident. In this case: citizens had private property and land seized, films and other evidence was taken, citizens were illegally confined, pushed around, and interrogated, obtained evidence is now missing, secret military personnel came in and took over, the military ignored court orders to turn release documents, and people were ordered off of their own property.
This is what happens when the government wants to keep secrets from the public.
Its worth noting that our “fair & balanced” friends at Fox are lying about what the NYT editorial says about this issue. Fox is trumpeting that NYT says “The administration has now lost all credibility”, when in fact they said “The administration has now lost all credibility on this issue.”
CNET: No evidence of NSA’s ‘direct access’ to tech companies
@michael reynolds: How can they advocate slasing the NSA’s budget when they can’t give their reasons for doing so?
@Jeremy R:
The entire article became worthless once an anonymous source is quoted. Anonymous sources can say anything they please and face no consequences, therefore they can’t be trusted.
@mantis:
Translation: You stupid shits thought you had freedom and democracy. The problem is never what government does or does not do, the problem is a nation of ignorant children who want their widdle-bitty consitutional wights.
Grow up and accept you deserve only what you’re allowed to have. There were times when government broke laws in the past, so it’s ok for it to break them now. You have no right to complain unless a Republican is in the White House.
@mantis: Your solution of telling people to just stop using the internet if they don’t like it is a great way to ensure limited public debate on contraversal issues. Would you support it also if the government wrote down and tracked the names and addresses of everyone who showed up to protest an issue somewhere? Its a slippery slop and people should be outraged and demand congress act with the proper oversite.
@anjin-san: Its worth noting that our “fair & balanced” friends at Fox are lying about what the NYT editorial says about this issue. Fox is trumpeting that NYT says “The administration has now lost all credibility”, when in fact they said “The administration has now lost all credibility on this issue.”
You’re so triumphant… and so wrong.
The Times quietly went back and changed their editorial from the Fox-reported version to yours, and didn’t acknowledge the walkback.
So, to you, Fox is lying when they don’t parrot the New Truth and play along with the “that statement is no longer operative” game, like you are?
@ Jenos
How does jim treacher’s butt taste today?
@anjin-san: Why am I not surprised that a worthless asswipe like you would use that particular metaphor?
Why can’t you just own up to blowing it this time? If you admit that Fox was right and the Times tried to rewrite history, will you burst into flames or dissolve into a smear or something?
One can only hope…
@Jeremy R:
You do not have “direct access” to many of the things you see on the web.
Solving the mystery of PRISM
@ Jenos
Following a link on Fox, then seeing that what is at the link is different than what Fox reported makes “Fox lied” a reasonable conclusion, especially given Fox’s long and colorful history of reporting facts that are not facts.
But if you want to claim a triumph here, go for it. I realize that wins have been few and far between in your life. Besides, I know the concept of “reasonable” is something you have never really grokked.
It is interesting to not that after countless screeds from conservatives about how NYT is fit only to line bird cages with, an editorial that is critical of Obama is treated as holy writ. I guess its all about the expedience of the moment.
Oh, and Jenos? If you don’t like people making jokes about you and Treacher’s butt, don’t pucker up quite so quickly the next time he drops in.
@anjin-san: So, let’s sum up: you brought up a point that was not only completely pointless, but factually wrong. And when I corrected you, you responded with a personal insult — and only admitted that you might have been mistaken after some time for reflection. No apology, just an admission that your knee-jerk response is to always believe the NYT and always disbelieve Fox.
That’s about as good as you’ll give, so yeah, I can let this one drop.
But will you?
@Jenos Idanian:
Actually, there’s an interesting constitutional question: does the executive branch have the authority, under the separation of powers, to restrict the topics the legislative branch can discuss during debate?
@Stormy Dragon:
Particularly keeping in mind Article I, Section 6:
@ Jenos
When you are done whining, look “pedophile” up in the dictionary. Then reflect on how you libeled Katilyn Hunt, and how you hid behind “semantics” when called on it.
Make you a deal though. Stop being a punk, and I will stop treating you like one.
@anjin-san: You’re just hop-scotching all over the place, aren’t you?
OK, I’ll reflect on the Kaitlyn Hunt case.
On further reflection, I don’t think calling an adult who has sexual relations in a school bathroom with a 14-year-old a “pedophile” is something I will lose much sleep over. But it does raise the question of why you’re so eager to defend such a person’s honor…
Because it’s important to protect young people from grown up creeps. Yourself for example. This has nothing to do with her “honor.” She is not a pedophile, period.
@anjin-san: She is not a pedophile, period.
You’re right. She’s not a pedophile, she’s just a legal adult who finger-banged a 14-year-old in a public bathroom, and continued the sexual relationship in full knowledge of the law for several months.
And it’s interesting that you’re interested in defending the 18-year-old from my mean words, but have no sympathy for the 14-year-old in this case — which is where my sympathies lie.
But back to the topic at hand… someone noted that, if you really look into Nazi history, you won’t find a single document that definitively links Hitler to the Holocaust. No documents showing him ordering — or even being informed about — the systematic extermination of Jews.
That doesn’t mean Hitler was innocent, of course. It just means that he surrounded himself with enough like-minded people who didn’t need to be told explicitly what to do; they’d just do what Hitler wanted without having to be ordered — and in full comfort that Hitler supported what they were doing.
Not to Godwinize this, but the parallel to Obama is pretty similar: he didn’t have to order the IRS to suppress his opponents, he didn’t have to order the NSA to set into place these programs, he didn’t have to order the Justice Department to go after reporters, he didn’t have to order the ATF to try Fast & Furious, and so on and so on. He just put the right people in place who were of similar enough mind to do what they knew Obama wanted done.
And Obama has the plausible deniability factor: he’d never held any kind of executive or leadership position before, so he couldn’t be expected to know how to be the kind of leader we need in a president. And his apologists would be ready with their pronouncements that the government has just gotten too big to be governed properly, and isn’t the economy doing better so what’s the big deal, and all the rest of the excuses.
Now don’t you have a NAMBLA petition to sign or something, anjin?
@ Jenos
Wow. NAMBLA, Obama=Hitler – you have the full crazy going today. Well, nothing says “I seriously need years of therapy” like a good rant.
At any rate, I think everyone here, you excepted of course, knows that someone who is really concerned about the welfare of a 14 year old girl does not obsessively repeat the most intimate details of her life in a public forum.
@Jenos Idanian: The one person who was mainly responsible for the Holocaust and the massive bureaucracy was of course Heinrich Himmler, probably the most feared single person in world history. He even tried to get Hitler out and take over.
@Jenos Idanian: Shorter Indiana Jones anagram: “Not to Godwinize this, but HITLER! And BLACK!”
As the saying goes, “personnel is policy.”
Obama always says the right things when these scandals erupt — that he’s shocked, outraged, and what has happened is intolerable — but never seems to put words to action.
Personnel is policy, actions speak louder than words. Obama says things are unacceptable, but keeps accepting them.
I mean, you know somewhere on a White House transcript is Obama saying “will no one rid me of these turbulent Teabaggers?”
Breaking news: we have discovered who is in charge of these secret agencies – his name is Rudolph Hess !