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“Pleading Ignorance”: Congress Can’t Pretend It Didn’t Know About NSA Surveillance

Having been, at one place or another in my career, on each side of the perennial debate in Washington about “who knew what and when,” I knew it was a matter of time before we started hearing it about the leaked NSA operations.

Since leaving government, I have written before about the weird dynamics of “briefing” Congress on sensitive operations, e.g., Nancy Pelosi’s claim that she didn’t know about CIA’s program of “enhanced interrogations” during the Bush Administration. Now, and perhaps ironically, we have a spate of Republicans saying they knew little or nothing of the NSA operations

So, what’s the real story behind this typical Washington play to the media?

The media, of course, has a field day because on any day, they can get someone in Congress who wants to get their face on TV to say most anything – this whips up the hysteria that gives the story legs.To them, it’s media Nirvana – it’s the Trayvon Martin case of national security, and the best thing since the “torture” scandal.

Here is what’s behind all this political smoke:

There are some traditional Republican vs. Democrat tensions at work, in that it’s an opportunity for Republicans to criticize a Democratic President.

The NSA operations are very awkward for many Democrats to support (and many don’t) because of their liberal views on personal liberties and conciliatory approaches to national security.

Likewise, Republicans – who traditionally are more aggressive in national security matters – are also reluctant to support a Democratic administration, even though they may agree with the NSA operations.

The “tea party” faction of the Republican Party opposes the NSA operations – and as such is aligned with the most liberal Democrats on the issue. Strange bedfellows indeed.

Members of the two intelligence committees, Republican and Democrat, seem generally to support the NSA operations – and they also seem to know the most about them. They should.

However, complaints that “we didn’t know about this” are now being heard from both congressional Republicans and Democrats who are not on the intelligence committees.

Coming, perhaps, are internal divisions within the intelligence committees, some Republican-Democrat spats and some between the committee leaderships and rank and file committee members. This is awkward for the intelligence committee leaderships.

The lawyers at the Department of Justice, are – uncomfortably perhaps – in bed with each other on the NSA ops, because the programs were started in the Bush administration and continued into the Obama administration. And the president himself has supported the programs in every opportunity he has had to talk about them. He clearly believes that privacy and security are in proper balance with the NSA operations – or at least not out of balance.

So, who (probably) knew what and when about the compromised NSA program?

Some relevant background: Ever since Watergate, the Church and Pike Committees, the creation of the intelligence committees and the enactment of the Foreign Intelligence Surveillance Act (by the Democrats, FYI) in the 70’s, there have been various legal requirements for the intelligence community to keep the Congress informed about what they are doing. And the Congressional Seniors, often called the “Gang of Eight” (majority and minority leaders of each house and majority and minority members of the intelligence committees), get briefed in more detail on the most sensitive intelligence activities and operations.

Now, put yourself in the place of the directors of the various intelligence agencies. If you have any political sense at all (and you wouldn’t be a director if you didn’t), you are going to tell all about your agency’s various activities and operations, including all the risks – at least to the gang of eight. This way no one can later accuse you of withholding information when one of these sensitive programs goes south or is compromised. And, because the most sensitive activities and operations are often the most risky, the odds of failure or compromise are correspondingly high.

So, we can assume that – at the very least – the gang of eight was fully briefed on the NSA operations. And we can also assume that any other member of the intelligence committees who expressed interest in the programs would have likewise had a complete briefing, including on-site briefings by agency technicians, if such were requested.

How about an  ordinary member of Congress who was interested in these programs? They can also get briefings if they request them, and should approach their own party leaderships if they want additional information, or go to the leaderships of their house’s intelligence committee. Are these briefings often complex, technical and time consuming? Yes, for sure.

However, the suggestion that information is somehow being withheld from them is, frankly, silly, just as it was for Pelosi, a 10-plus year member of the gang of eight and a former chairman of the House Permanent Select Committee on Intelligence, to say that she didn’t know about the CIA’s enhanced interrogation program.

They know. They may wish they didn’t when the story hits the news, but they know. In fact, it’s to the administration’s advantage – whether Republican or Democrat – that they know all the details. In short, they are all in this boat together, whether they like it or not.

 

By: Daniel Gallington, U. S. News and World Report, August 12, 2013

August 13, 2013 Posted by | National Security | , , , , , , , , | Leave a comment

“Little Evidence”: On Civil Liberties, Comparing Obama With Bush Is Easy, And Mostly Wrong

Nearly a dozen years after the passage of the PATRIOT Act — rushed through Congress in an atmosphere of fear and intimidation — informed debate over the balance between liberty and security is long overdue.  That includes a public examination of how widely and deeply the National Security Agency (and other elements of the “intelligence community”) may monitor Americans’ telecommunications without violating the Bill of Rights.

But that needed discussion isn’t enhanced by hysteria or the partisan opportunism it encourages.  As others have noted already, the supposed revelation that the NSA is collecting metadata on telephone use in this country isn’t exactly startling news. The fugitive ex-CIA contractor Edward Snowden, who leaked documents concerning that program to the London Guardian and the Washington Post, may yet unveil more startling revelations from his peculiar refuge in China. But anyone paying attention has known about this program since 2006, when USA Today first disclosed its existence.

The most important difference today is that Americans are no longer too frightened by the constant “terror alerts” of the Bush administration to consider the boundaries of surveillance and security.  Rather than hyping the terrorist threat, like George W. Bush and Dick Cheney, President Obama has repeatedly framed a calmer — if equally resolute — attitude toward Islamist extremism.

So while facile comparisons between the Obama and Bush administrations now appear every day in the media, they are quite misleading. Uttered by Republicans and their mouthpieces on Fox News, such arguments are hypocritical as well.

Consider the single most important surveillance controversy of the Bush era, namely the warrantless wiretapping undertaken on the president’s orders. In December 2005, the New York Times revealed that Bush had authorized the NSA to monitor phone calls and emails originating in U.S. territory, without obtaining warrants as required by the Foreign Intelligence Surveillance Act, or FISA. (That’s why it was called “warrantless.”) For the first time since Watergate – and the intelligence reforms resulting from that true scandal — the U.S. government had eavesdropped on Americans’ conversations without seeking the permission of a judge.

Only months before, Bush had claimed publicly that he was a steward of civil liberties and that his agents always got a court order before implementing a wiretap. But his administration had been using warrantless wiretaps ever since the 9/11 attacks.

Those trespasses against liberty went considerably further than the collection of metadata by the NSA.  No reports indicate that the Obama administration violated existing law to eavesdrop on any American — or listened to any calls without the sanction of the special FISA court.

Yet reaction to the recent stories about the NSA’s policies has been far more intense than eight years ago. Pundits and politicians have compared Obama unfavorably with Richard Nixon, berating him as a tyrannical betrayer of civil liberties. A few prominent Republicans even seem determined to ruin the NSA, solely because they wish to embarrass the president – a motive that other Republicans attribute to Snowden, whom they vilify as a traitor.

Not a peep was heard from Republicans on Capitol Hill when Bush, his vice president Dick Cheney, and their lawyers were practicing and promoting the theory of the “unitary executive,” under which any act ordered by the president in wartime, including warrantless wiretapping, is deemed inherently legal and exempt from judicial review. What exercised the Republicans in those days was the temerity of the Times in revealing what Bush had done.

As for Obama, the complicated truth is a mixed record on civil liberties. He tried and failed to close the prison at Guantánamo Bay, and he supported the renewal of the PATRIOT Act without changes. But he also substantially reformed the use of military commissions and abolished the use of torture, renditions, and secret prisons. In ending the wars in Iraq and Afghanistan, he has rejected the “permanent war” ideology, which the Bush regime deployed as a political weapon against dissent.

So far there is little evidence that Obama shares the dangerous theories of Bush and Cheney – but no president should enjoy the kind of exemption from congressional scrutiny that his predecessors exploited. Whatever Snowden’s intentions may be, he has inspired members of Congress to provide stricter oversight of the government’s gargantuan data-gathering efforts, which are inherently prone to overreach even under the most responsible supervision. At the very least, Congress and the public need to know how the government wields its powers under the PATRIOT Act – an interpretation that remains classified and thus precludes democratic oversight.

The president’s response to that question will test his commitment to the Constitution he swore to uphold.

 

By: Joe Conason, The National Memo, June 14, 2013

June 16, 2013 Posted by | National Security | , , , , , , , , | Leave a comment

“There’s A New Santa Claus”: The National Security Agency Is Doing What Google Does

An old journalism saw goes like this: Dog bites man, no story. Man bites dog, story. Allow me to update it. Government monitors e-mail and telephone calls for national security, no story. Government doesn’t do anything of the kind — now, that’s a story.

Clearly some awfully good newspapers and some awfully good reporters disagree. In the past week, it’s been raining stories about what the busybody government has been up to. The National Security Agency has been monitoring telephone calls and e-mails — and even social media stuff of the sort you shouldn’t have been doing anyway. To this, a whole lot of people have expressed shock. Oaths to the Fourth Amendment have filled the air. Unreasonable searches are simply unconstitutional, they assert — without asserting that anything has in fact been searched or seized. It has merely been noted and, if suspicious, referred to a court for the appropriate warrant.

The programs certainly can be abused. (So can local police powers.) But oddly enough, proof that this has not happened comes from the self-proclaimed martyr for our civil liberties, Edward Snowden, late of Booz Allen Hamilton, the government contractor that ever-so-recently employed him. (I assume he’ll be summoned to HR.)

In a remarkably overwrought interview conducted by the vainglorious Glenn Greenwald of the Guardian, Snowden cited not one example of the programs being abused. Greenwald wrote that Snowden “lines the door of his hotel room with pillows to prevent eavesdropping” and that “he puts a large red hood over his head and laptop when entering his passwords to prevent any hidden cameras from detecting them.” Greenwald said that “Snowden will go down in history as one of America’s most consequential whistleblowers.” I think he’ll go down as a cross-dressing Little Red Riding Hood.

Greenwald likens Snowden to Daniel Ellsberg, who revealed the Pentagon Papers to The Post and the New York Times more than four decades ago. Not quite. The Pentagon Papers proved that a succession of U.S. presidents had lied about their intentions regarding Vietnam — Lyndon Johnson above all. In 1964, he had campaigned against Barry Goldwater for the presidency as virtually the peace candidate while actually planning to widen the war. As the Times put it in a 1996 story, the Pentagon Papers “demonstrated, among other things, that the Johnson administration had systematically lied, not only to the public but also to Congress, about a subject of transcendent national interest and significance.”

In contrast, no one lied about the various programs disclosed last week. They were secret, yes, but members of Congress were informed — and they approved. Safeguards were built in. If, for instance, the omniscient computers picked up a pattern of phone calls from Mr. X to Suspected Terrorist Y, the government had to go to court to find out what was said. The Foreign Intelligence Surveillance Act established a court consisting of 11 rotating federal judges. These judges are the same ones who rule on warrants the government seeks in domestic criminal cases. If we trust them for that, why would we not trust them for other things as well?

Whenever I see “Hello, Richard” on my computer screen, I realize what’s happened: It knows me. It knows what I bought and when I bought it and where I was at the time. It knows my sizes and my credit card number, and if it knows all that, it knows pretty much everything. I long ago sacrificed a measure of privacy for convenience. One click will do it.

I also made the same sort of deal for security. I assumed the government was doing at least what Google was doing — and Google, I’m convinced, is the new Santa Claus: It sees you when you’re sleeping, it knows when you’re awake. It knows when you’ve been bad or good, so be good for goodness’ sake. In 2009, Google’s Eric Schmidt put us all at ease by telling CNBC’s Maria Bartiromo, “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.” See, not all billionaires are so smart.

Everything about Edward Snowden is ridiculously cinematic. He is not paranoiac; he is merely narcissistic. He jettisoned a girlfriend, a career and, undoubtedly, his personal freedom to expose programs that were known to our elected officials and could have been deduced by anyone who has ever Googled anything. History will not record him as “one of America’s most consequential whistleblowers.” History is more likely to forget him. Soon, you can Google that.

 

By: Richard Cohen, Opinion Writer, The Washington Post, June 10, 2013

June 12, 2013 Posted by | National Security | , , , , , , , , | Leave a comment

   

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