Here's Why the Obama Administration Wanted the NSA Data-Mining Program Kept Secret

It's the only way to prevent any sort of meaningful check or balance on executive power.


White House Flickr

I was reading up on the National Security Agency's data-mining program when I came across this tweet by Matt Apuzzo of the Associated Press:

If the programs needed secrecy to succeed, will NSA shut them down now? If not, did they ever need be secret? Or did I just blow your mind?

— Matt Apuzzo (@mattapuzzo) June 7, 2013

Why does this program have to be kept secret? It's not like American consumers will just stop using cell phones, or wireless networks, or social networks. (A person could do that, but who's actually willing to? Much as I loathe government surveillance, I'm not giving up Facebook or Gmail or my account with Verizon. I doubt many people are.) It's also not like Americans didn't know something like this was going on. So why keep it secret that the government is mining data when Americans will continue to provide data regardless?

The Washington Post's Greg Sargent raised the same point this morning. The administration's many defenses of these invasive tactics, he argued, do not "explain the need for the program — and its legal rationale — to remain shrouded in secrecy."

But there actually is an explanation, and it's laid out really well by Jennifer Hoelzer, former communications director for Patriot Act critic Sen. Ron Wyden (D-Ore.). Here's Hoelzer in the Huffington Post explaining how the Foreign Intelligence Surveillance Court (FISC) decides when to grant data-mining authority to the NSA:

[E]ven if one of these [FISC] judges issued a controversial ruling the decision can be appealed right?

Technically, yes. But who's going to appeal it?

Let me give you an example. Let's say a police officer wants to strip search you. You've done nothing wrong, but the police officer disagrees and says he needs to strip you to prove it. Under the criminal justice system, you get to bring that argument to a judge, who will issue a ruling only after listening to the government's reasons for wanting to strip search you and your reasons for why they shouldn't be allowed to do that. In the event that the judge rules against you and finds that the police officer has probable cause to search you, not only do you have a right to appeal that judge's decision all the way to the Supreme Court, you are welcome to talk to as many reporters, friends, relatives and elected officials as you want to along the way. And, if the public doesn't agree with the police force's policy on strip-searching, they can pressure lawmakers to change the law or—if in California—push for a ballot measure.

However, let's say the government wants Verizon to hand over all of your phone records (not just who you call, but who calls you, how long your conversations were and where you were when you had the conversation). You're never going to know about it, much less get a chance to argue against it. The FISC judge who signs off on the government's data collection will only hear the government's argument for why it should be lawfully allowed to collect data on you. If the judge rules against the government, the government can appeal the decision, but if/when the judge agrees with the government there is no other side to appeal the decision. Moreover, the judge's ruling is classified, so even if the ruling is outlandish, it can't be reported or even debated on the Senate floor.

So, the Administration could be relying on some crazy/twisted interpretations of the Patriot Act and we'd never know about it?

That is what Senator Wyden has been warning, starting as far back as July 2008 when he first argued for the declassification of FISA court opinions. I think he put it best when he said "reading the text of the Patriot Act without the secret court opinions is like being able to read McCain-Feingold without being allowed to know about Citizens United." Congress passed the Patriot Act, but Congress can't debate whether or not the Administration is interpreting the Patriot Act the way it intended the Patriot Act to be interpreted. Moreover, the American People aren't being given an opportunity to weigh in.

But the Justice Department says this authority is essential to national security. Wouldn't telling the American people undermine that?

By that logic it could be argued that all surveillance laws should be kept secret in order to make it harder for adversaries to guess how we collect intelligence, but that's not how a democracy works. American citizens are supposed to have a say in the laws that govern them and no matter how noble the Justice Department's intentions are, its officials don't have the right to substitute their judgment for the judgment of the American people. In the event that they have doubts that the American people will support a program they believe is necessary to national security, they are obligated to bring that program up for debate, not classify it and hope no one finds out.

In other words, they want to keep it secret because that's the only way to prevent any sort of meaningful check or balance on executive power. 

NEXT: "Is it just me, or is secret blanket surveillance obscenely outrageous?," tweets Al Gore

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  1. Because if the terrorists find out that the NSA is listening in on every phone call and reading every email, they’ll stop plotting attacks by phone and email! They’ll meet in person in coffee shops instead, and Rand Paul already stopped the feds from hitting them with drone strikes, so the terrorists will win!

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      1. Hannah here. Who’s this Dawn bitch? I’ll claw her eyes out. But I’m intrigued by your Aston Martin.

  2. I pledge allegiance to the supercomputer of the United States of Data Mining. And to the dictatorship for which it stands, one nation, under Obama, unencryptable, with tyranny and injustice for all.

    1. ^Nice, well crafted and clever.

    2. Don’t you mean …And Justice for All?

        1. Nope. I’ll stick to Metallica.

    3. It can only be attributed to human error.

      1. By some rogue bureaucrats in Cincinnati.

        1. Two low level bureaucrats to be precise.

    4. WOPR tires of chess. Must datamine!

  3. Earlier I mentioned that to me ‘secret search warrant’ is an oxymoron.

    Isnt the purpose of forcing the executive to get a search warrant to have reviewable record of the executives actions and reasons for them?

    1. How quaint.

  4. This is nice. It’s like a “liberty for dummies” post. Or, more accurately, “Liberty for your progressive Facebook friends”.

    1. I think it was more accurate the first time you wrote it.

      1. Actually identical.

  5. We have assembled a gun that is pointed at our head. All that is needed is for a ruthless psycho to grab it.

    1. Um, don’t look now but your head is already bleeding from multiple gunshot wounds.

      1. It’s my anus that’s bleeding.

  6. Something else comes to mind. Didnt this administration already argue in shitweasel’s first term that their interpretation of the NDAA was classified when they were asked about it and how they would apply it?

  7. I would like to know why the Tsarnev brothers were able to flummox this “Oh-so-important anti-terror tool” so efficiently.

    Seems like they would have been high quality targets for said program as even Soviet authorities were tracking them. And yet this tool was ineffective.

    1. It’s not actually for stopping terrorists. It, as always, is about CONTROL. Every successful terrorist attack is merely a justification for more CONTROL. Why would they bother even trying to stop attacks?

      1. It’s those fuckers in Omega House all over again.

        I think that this situation absolutely requires a really futile and stupid gesture be done on somebody’s part!


      2. That’s what so obnoxious about the “trust us, we need this to stop the terrorists!” defense.

        We didn’t trust you before, and you have given us absolutely zero reason to grant you additional trust in the future.

        It’s like our politicians forgot that our entire system is based on the idea of limiting political power or something.

        1. Forgot? They didn’t forget, they know it well and are undermining the limitations as fast as they can.

      3. And then CONTROL goes and blows its entire budget on shoe phones and the like. What do we pay these people for?

        1. Where’s Agent 99 when you need her?

      4. +1 cone of silence

    2. Because no one actually cares; they just want the power.

      1. Oh, damn your quick fingers Epi.

    3. the Soviets has prenatal tracking?

    4. Simple enough. The Tsarnaev brothers had no known nefarious connections or associations.

      If they had belonged to any Tea Party groups, on the other hand, they would have been thoroughly investigated years ago. Probably, the racist Boston area Tea Party groups rejected the Tsarnaev brothers because of their dark skin. So, in the final analysis, the Tea Party is responsible for the Boston massacre and President Obama would have saved us, but for the inherent racism of Teabaggers.

    5. Russian. The USSR is defunct. However, the USSA is just coming into its own.

  8. Those kooky terrorists, they just keep right on winning.

  9. The bigger issue:

    The proposition that “national security” merits any consideration vis-?-vis the vindication of individual liberty.

    Funny, does anybody hear the echoes of national security emanating from 1776?

    1. IOW, why should national security have a place at the table in a free society which puts individual liberty, free trade and the primacy of free enterprise at the apogee of values?

      1. In a society that truly valued those things, “national security” would be virtually meaningless. Who could decide what made the “nation” “secure”?

      2. Most people don’t seem to understand that as liberties diminish, they become less safe. If you just spend a brief moment to think about it, it becomes obvious.

  10. OT but I couldn’t resist…

    Married lifestyle coaches and self help gurus commit suicide

    You really gotta wonder what their customers are feeling right now

    1. Anyone who was stupid or insecure enough to hire a ‘life coach’ should follow the example they set. The gene pool will thank you.

    2. He said he knew the couple and stopped by the apartment last week to fix something for Littig. “He walked me to the door and said ‘thank you very much.’ He was a very nice guy — and a couple of days later, this.”

      This is how you know a New Yawker is suicidal.

    3. The rather elaborate method of suicide and the notes suggest this was a reasoned decision. Perhaps the wife was terminally ill?

      In any case, what kind of person needs a ‘life coach’?

  11. I agree with the article – secret searches only work if they are secret.

    The other reason – encryption. I bet cell-phone encryption apps are about to become a lot more popular.

    1. Unless it also covers duration and destination, it’s not going to cover the data being tracked.

    2. Cell phone encryption apps are useless since your phone itself can be compromised at the push of a button.

    3. Don’t put it in electronic media unless you want the world to know about it.

      1. I told my girlfriend about this several times and still found out about her other boyfriend. Stupid cunt.

        1. She never found out about my other girlfriends because we only communicate face-to-face.

  12. Well, if things are secret, even from most of Congress, then people won’t object. And we shouldn’t be allowed to object for our paltry little reasons, because the government needs to do these things to protect us from harm. When the government fails, it needs more secret stuff to protect us from the next harm. And so on.

    1. Government, the only place where failure is rewarded with more funding and power.

      1. Oh, that was my mistake – getting my job done.

      2. It’s so weird that people just accept this. Like they do all of the lies, corruption, and abuse of power. It’s not like people don’t know this. Even partisans accept some of this crap from the opposition, because “that’s the way it is.”

        Fuck that shit.

        1. Any suggestions?

          1. As in, how to stop it?

            1. Stopping it’s simple. Hard, but simple.

              1. Your advice has been noted.

            2. It won’t stop until the government uses all this collected data as a means to coerce huge swaths of the population. By that time you better just hope that their file on you matches up with whichever team happens to be in office.

              1. those are some long odds.

              2. It’s good thing they both hate us then huh?

          2. Not doing things that way? Hell, doing nothing is a step up from this.

          3. Yes. Vote for limited government candidates only, toss them out when they lose their way. Amend and de-amend the Constitution to try to further limit government growth and protect civil liberties.

            And be prepared to rebel when the government inevitably does an end run around these safeguards.

        2. Behold the effect of monopoly. Since there is no other entity to turn to, the only possible answer is to shovel more money and power at whatever it is you’re trying to do. The foundational nature of government–its essence, which is monopoly of force–inevitably leads to this outcome. It is unavoidable, so all you minarchists enjoy it.

          1. The only thing worse than a statist is a fucking anarchist.

            1. That’s only true because I am objectively the worst.

            2. You can’t handle the truth!

              1. Your desire to control me shows why anarchy can’t work. Because of you.

                1. I tend to think that anarchy can’t work because of me.

                  1. Okay. You and Episiarch.

            3. Not true. Moralists are scum of the scum.

          2. This monopoly on force can be managed by paying the price of cognitive efficacy: the choice to be rational and adhere to the primacy of existence, and thus objective reality.

            You anarcho-rationalists are long on pretentious hyperbole and short on rationality. A private market for force = tribal warfare, it can be nothing else. The Rothbardians suffer from the same disease as the leftoids (hence the similarity of their premises): subjectivism and rationalism. Destruction is the reward of pretending whims can suffice for reality (the primacy of consciousness metaphysics).

        3. Well, Somalia is worse. Of course, as Ron Bailey points out in an article today, if you compare Somalia in 1989 to Somalia in 2013 and the US over the same period, who has lost and who has gained in relation to their 1989 standing.

          1. If you compare 1982 Somalia with present-day America, then America has lost. Some kid stole my camera and his friends dragged him back to return it. He braced himself to receive a beating, however I couldn’t beat a 10 or 11-year-old-kid. He was actually surprised and almost kissed my feet.

        4. Not really. It’s because “we expect to be in power soon”.

    2. Seriously. Any answer other than “because if people knew they would’ve been really angry” deserves the highest degree of skepticism.

  13. Give credit where due — when the Obama administration said they would strive to achieve more transparency than any other administration, they were right — our lives are waaay more transparent to them than under Teh Booosh.

    Ironically, the administration’s actions are also turning out to be transparent to the voters, despite Obama trying to stem that incoming tide.

  14. OT: Proof that Whole Foods is a stalking horse for racist teabaggers. Expect lots of outrage, plans of boycotts, and then needing something for Sunday brunch and forgetting the whole thing.

    1. Also OT (Hey, I’ve got to move furniture into or out of 3 different houses this weekend, I got no time for your evening links): /.ers once again demonstrate that they only understand rights when viewed through computers. The comments would be at home here, many of them. Where are these part-time libertarians when the case doesn’t focus on electronics?

      1. Where are they? They’re busy electing statists to power. Statists make them feel loved.

    2. “I couldn’t believe it,” said Baldizan, who works in the store’s food preparation department. “All we did was say we didn’t believe the policy was fair. We only talk Spanish to each other about personal stuff, not work.

      Not that I’m 100% exempt from such a thing, but that’s your problem right there.

      1. Should have only emphasized “about personal stuff, not work”.

        1. Probably personal stuff like “gee the boss is a real dick”

          1. Or, personal stuff like “Put this box of cosmetics in the dumpster and I’ll give you fifty dollars”.

  15. News:
    Obama:’It wasn’t secret. I told three people about it!’
    It’s on Huff Po; squirrels don’t like linky

  16. I don’t think this is quite right. There can be appeals if the government wins at the FISA court. In fact, this blog post discusses a published case that was taken on appeal by a “service provider” objecting to a request granted by the FISA court. The appeals Court held that the service provider had standing to assert the Fourth Amendment rights of its customers. Of course, the service provider lost on the merits, in part because the Court relied on the following government assertion:

    “The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary.”

    This may have been true in 2008, and it may technically be true now, but it seems to be substantively false based on the recent revelations.

    Anyhow, to be charitable, the real reason secrecy is required is not because NSA is worried that you or I (average joes) would switch away from cooperating communication networks if we knew NSA was monitoring (as you say, we will not), it’s because NSA thinks the terrorists will switch away from communications networks known to be cooperating with NSA. And NSA is probably right about that, isn’t it?

    1. Or a lot of people will adopt encryption. But that won’t happen until there is a corresponding belief that the government is trying to criminalize even more behavior. While I believe in 3 felonies a day, I don’t think they’re going to come after me for calling them assholes on here. However that could change at any moment.

  17. We need to rebuild our country’s operating system. There was too much crap injected into it over the years and the clean up process would be next to impossible within any reasonable period of time. Just think of it as a corrupt build of Microsoft Windows that must now be replaced!

    1. Can we make it an open source operating system this time? No secrets, none, zero. How can the people hold the scumbags accountable when the scum sucking pieces of shit simply don’t tell us the depth of their power seeking depravity?

      So we make government completely open source. Anybody can read, view, monitor anything that anybody who works for the government does in the course of their job. No more redaction, no more FOI requests, because everything will be available online. Every. Single. Thing.

      These dicks are a bigger threat to our liberty than any terrorist.

      1. Agreed on open source. And the OS needs a lot smaller footprint too. It is a resource (tax dollar) pig!

  18. If we don’t secretly mine data, the terrorists win.

    1. If we don’t terrorize our own citizens, the (other) terrorists win.

  19. I know this might sound like something out of science fiction novel, but has Obama and Graham and Feinstein ever stopped to think about how the extreme power this gives to agencies like the NSA can easily be turned AGAINST THEM? Perhaps that’s why they’re afraid to oppose this program?

    In the article’s strawman argument about the strip search, those in favor of this activity can say “we” are represented by congress, and they approve of it each and every time, so perhaps we just need to vote the bums out until we get someone in congress who truly represents our views?

    1. I think you’re anthropoligizing a little.

  20. This may be the tipping point. For the first time in my memory, I am seeing progressives criticizing a nominally progressive president. Yes, I know it is Obama’s second term, but I still haven’t seen this before. To progressivism, politics is a team sport. In there black and white world, to criticize Obama is to be a McCain/Romney supporter. There is no middle ground.

    This is new. I think we will finally get the change we were promised.

    1. Don’t be so sure. If you recall, Progressives criticized Bill Clinton when the Monica story first broke, but soon returned to the official party line. That may very well happen here as well. We’ll see.

    2. To the True Kool-Aid-Guzzling progressives Obama well…uh yeah….what about that free Nazi health plan of his?….

      1. True. No one likes Obama/Romneycare. Americans prefer to be held hostage by the AMA-Big Pharma-Insurance Industry-Police State Mafia. And dying young and broke.

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  24. Rethuglicans = Taliban

    Demoncrats = Al Qaeda

    Who won the Terror War?

    1. Doesn’t matter who won. The American citizen lost.

  25. Think how much trouble we could have saved ourselves if we had clobbered the Taliban, clobbered Saddam, said “Be-f*cking-have or we will be back”, and gone home.

    We don’t need to win hearts and minds. We don’t need to “Nation Build”. We need to break the pattern of success that appeasement gave the scattered bands of scruffy bandits that became the Terrorist Organizations we face today. And we could do that by making support of those creeps political suicide. Terrorist organizations can exist un the untouchable underground, but to operate internationally they need nations in support. Make the nations to scared to try that gambit, because nine out of ten pillocks who try it end up under a pile of rubble with a Marine boot on it, and the terrorists will fade back into the hills and go back to pestering poor rural villages.

    But the Political Class has to make everything complicated, lest we decide we don’t need them.

  26. Thanks to Sen. Wyden for waking up a little, but he voted for the Patriot Act, and the Homeland Security Act.

    1. He’s one of those lefty/liberal/progressive parasites that talks big but witness his defense of Rand Paul’s filibuster over Obama’s killer-drone advocate John Brennan CIA appointment, after which he [Wyden] voted to confirm Brennan anyway. That explains where his head is at.

  27. Facebook: left that a while ago.

    G-Mail: leaving as soon as Mega offers e-mail (hopefully soon).

    Cell: haven’t decided yet what to do there.

    Chrome browser: going DuckDuckGo just because, well, FUCK GOOGLE.

    Youtube: don’t have an account except the one forced on me by my g-mail, which will go away as per #2.

    Disqus: (thank you, Reason, for not using it.) That I should definitely dump.

  28. Disqus is definitely worth less than nothing.

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