by Jeremy Leaming
Are we over reacting when tossing around Orwellian to describe the federal government’s massive surveillance programs or denouncing President Obama as losing all credibility on this issue, as The New York Times Editorial Board has done?
We noted one of the massive spying programs yesterday regarding a FISA Court order granting the National Security Agency the power to collect telephone information from Verizon. The Guardian released the FISA Court order in its coverage. Later The Guardian and The Washington Post reported on a program called PRISM where the NSA and FBI are “tapping directly into central servers of nine leading Internet companies [like Google, Facebook and Apple], extracting audio and video chats, photographs, e-mails, documents and connection logs ….” The order to collect telephone data has apparently been made much easier to obtain because of the administration’s sweeping interpretation of a provision in the Patriot Act.
President Obama today dismissed criticism of the surveillance programs as hype. At a press conference this morning intended to focus on implementation of the Affordable Care Act he was confronted with questions about the two programs.
Obama first acknowledged he has a duty to protect the constitutional right to privacy and civil liberties, but quickly shifted into defending the massive surveillance programs.
“The programs discussed over the last couple of days in the press are secret in the sense that they are classified but they are not secret in the sense that when it comes to phone calls every member of Congress has been briefed on this program,” Obama said. “With respect to all these programs the relevant intelligence committees are fully briefed on these programs. These are programs that have been authorized by broad bipartisan majorities repeatedly since 2006. So I think it’s important to understand that your duly elected representatives have been consistently informed about exactly what we’re doing.”
He claimed that the “intelligence community” is not looking at content of telephone calls, but instead sifting “so-called metadata” for leads of people plotting to engage in terrorism. He then knocked coverage of the two surveillance programs as “hype.” He added that the program of collecting telephone data is overseen by Congress and the FISA Court, which was created by the Foreign Intelligence Surveillance Act of 1978 (FISA).
With respect to the Internet surveillance program, he said PRISM does not apply to U.S. citizens and that Congress is fully aware of the program and that the FISA Court “has to authorize it.” They are both programs, the president said, that have been approved by Congress and the FISA Court is overseeing them.
The Dish’s Andrew Sullivan writes, “I don’t find such data-mining for national security purposes to be that horrifying. If that’s the price we have to pay for deterring Jihadist attacks, then we should recognize there’s a trade-off. The problem is that we, the public, cannot judge the gravity of those threats and so cannot even weigh the necessity of giving up our privacy.”
Geoffrey R. Stone, a constitutional expert and distinguished law professor at the University of Chicago, in a piece for The Huffington Post says that “based on the facts that have been made public,” the government actions “are neither unconstitutional nor otherwise unlawful under existing law.” Stone, however, adds that he would “personally like to see the interpretation of the Constitution and the state of federal legislation changed in particular ways that might alter this conclusion ….”
Both Sullivan and Stone are touching upon the trade-offs that Obama also mentioned during his press conference today. In some instances national security will trump the interests of protecting privacy.
Others, like The New York Times Editorial Board believe the Obama administration has recklessly expanded the surveillance programs started under his predecessor and given more power to the nation’s unwieldy intelligence apparatus. “The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it. That is one reason we have long argued that the Patriot Act, enacted in the heat of fear after the Sept. 11, 2001, attacks by members of Congress who mostly had not even read it, was reckless in its assignment of unnecessary and overbroad surveillance powers.”
Sens. Mark Udall (D-N.M.) and Ron Wyden (D-Ore.) have expressed concern over the administration’s reliance on the Patriot Act and the FISA Court, which rarely rejects government requests for collecting private data. In a letter to Attorney General Eric Holder, the senators wrote, “We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act.”
Today, Udall said the Obama administration must be more forthcoming about the widespread surveillance. “I share your concerns and am strongly urging the White House to be transparent with the American people. We need to know more about how the president and his administration interpret their surveillance authorities,” Udall said in a Facebook post.
Salon reports that last year “the government made 1,789 applications to the court – one was withdrawn by the government and 40 were modified by the court, but the FISC [FISA Court] did not deny any applications in whole or in part.” In 2010, “there were 1,511 applications, of which five were withdrawn and 14 modified."
The FISA Court is a rather lame check on executive branch power. The FISA Court, despite the president’s claim that it is a sound check on executive power, is nothing more than a rubber stamp. It rarely rejects the intelligence community’s voracious requests for monitoring Americans’ activities.
Glenn Greenwald, who along with Ewen MacAskill and Spencer Ackerman broke the story for The Guardian about the massive collection of telephone data, told Democracy Now! that he expects further revelations about the nation’s intelligence apparatus power.
“The objective of the NSA and the U.S. government is nothing less than destroying all remnants of privacy,” he told the show’s host Amy Goodman. “They want to make sure that every single time that human beings interact with one another that they know about it, that they can watch it, they can store it, and they can access it at any time and that’s what this program is about and they are very explicit about the fact that since most communications now coming through these Internet companies it is vital in their eyes for them to have full and unfettered access to it and they do.”
Responding to claims from Sen. Dianne Feinstein (D-Calif.), the president and others that the surveillance tactics are legal, Greenwald said, “the fact that something is lawful does not mean that it isn’t dangerous, tyrannical or wrong. You can enact laws that endorse tyrannical behavior ….”
The Obama administration, as many of have noted, has obsessively gone after leaks of government information, and NBC’s Pete Williams has suggested that the leak of the FISA Court order will be investigated. Such talk is not deterring Greenwald. He said he is not intimidated.
Today’s comments from Obama sounded a lot like his predecessor. The nation is at war with crazed terrorists and the administration has a duty to protect American citizens and therefore trade-offs have to be made, meaning sometimes constitutional rights must be trampled. Essentially, Obama stood before the American public and said trust us, we are professionals, and we have safeguards and checks in place.
It’s tired rhetoric and as Greenwald has noted before, coming from Obama it likely means the exact opposite is occurring. The nation’s intelligence apparatus is massive, incredibly powerful and let’s be realistic, unaccountable. And President Obama is expanding executive branch power and the intelligence community’s power. His assurances of “trust us” are insulting.