Obama Administration

President Obama's NSA Placebo

His most recent speech was a thinly disguised effort to change the subject.

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When President Obama chose a Friday before a three-day holiday weekend to address a matter as profound as the NSA spying scandal, I suspected he would raise issues that he hoped the media would ignore. That's because the Reagan White House did a study in the early 1980s and concluded that Fridays are low-value news days and thus a good time to bury the lead, so to speak. Every president since then has followed that lead.

Instead of addressing the massive violations of the natural and constitutionally protected right to privacy, instead of acknowledging that but for the personal courage of Edward Snowden his administration would still be pulling the wool over our eyes, instead of reestablishing the serious constitutional and civil liberties bona fides he established for himself as a U.S. senator, the president defended his massive spying as a necessary tool in the fight to maintain national security and offered only a placebo to its critics.

Just how massive is this scandal? The Washington Post has reported that the NSA hacks into 500,000 American buddy lists and 600,000 American address books every day, and the Guardian of London reported last week that the NSA seizes 200,000,000 American text messages every day. This is in addition to seizing the content of all cellphone- and landline-generated telephone conversations and copies of all emails sent or received in the United States. And all of that is in addition to seizing all bank records, utility bills and credit card bills of everyone in the United States.

By not addressing or refuting any of this, the president obviously plans to continue it. He also plans to reject the most basic principles of American government. If the government derives its powers from the consent of the governed, as the Declaration of Independence declares it does, and if the governed lack the lawful authority to hack and seize our neighbors' texts and phone calls and utility bills, how could we have given that authority to the government?

In the president's world, that's an easy question to answer: Do it in secret. Enact legislation that lets a dozen NSA-sycophantic members of Congress speak for the legislative branch, tell only that dozen about the spying in secret and swear them to secrecy. Enact legislation that lets a dozen secret judges issue search warrants based on the government's wishes rather than probable cause, and seek permission from any one of those judges in secret and swear them to secrecy. And then in public deny and lie and change the subject.

In a thinly disguised effort to change the subject, Obama's Friday speech focused on where the seized data is stored, rather than on whether the government in a free society is empowered to collect it. He proposed that the data seized by the NSA be stored at non-government locations that he did not identify and kept there and be made available to the NSA after approval by the secret Foreign Intelligence Surveillance Act (FISA) court.

Even if a third party capable and willing to store this data could be found, the additional step to the FISA court is no additional constitutional protection whatsoever. Every federal and state court in the United States follows the constitutional requirement that whenever any government is seeking a search warrant to conduct surveillance, the government must present particularized evidence identifying its target, and the evidence must constitute probable cause of criminal behavior on the part of that target; every court, that is, except the FISA court. That court issues general warrants that do not name a target and are based on the NSA's wishes, rather than evidence of probable cause.

So, that silent exhale of relief from the NSA last week was generated by the realization that this third-party storage proposal will not restrict the massive spying one iota.

Added to this placebo is the president's proposal to employ a Defender of the Constitution (what a great job title!) to appear before the FISA court, along with lawyers for the NSA, and argue against the NSA's wishes. This is another diversion that would add another level of unconstitutional and irrelevant complexity to the present scheme.

In the present scheme, the persons on the FISA court may be federal judges, but they are performing clerical functions, not judicial functions. That's because, unlike state courts, which are courts of general jurisdiction, the jurisdiction of all federal courts can only be invoked when there are real cases and controversies brought to them. If the Defender of the Constitution appeared in front of the FISA court, he or she could only do so by representing a real client in a real dispute with the federal government. But the NSA does not identify its targets, much less deal with their lawyers. The president's proposal would turn this non-court court into a law school moot court exercise.

His third proposal adds insult to injury. He offers to stop the NSA from doing to foreign leaders what it has been doing to Americans. No doubt, that is to enable him to save face with his selfie-snapping European colleagues. But it hardly smacks of understanding the problem of massive spying. It may be an insult to spy on his fellow heads of state, and it may affect diplomacy with them, but stopping it hardly enhances the natural right to privacy of the rest of us.

This mass spying is uniquely and profoundly un-American and will continue to undermine our freedoms. I am not arguing here that all spying is illegal—just that spying on all of us is illegal. Why bother with the formality of warrants when they permit all spying all the time? Spying on anyone not named in a warrant, or employing a warrant not based on probable cause, is the hallmark of those totalitarian regimes against which we have fought our just wars and our cold wars. Yet today, the government in America seems more like the former enemies we vanquished than the place of life, liberty and the pursuit of happiness the Framers established.

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  1. In a thinly disguised effort to change the subject,

    Obama’s statement is designed only to provide an excuse to the media to claim the problem has been addressed and it’s time to move on to other, more important issues. Like how Chris Christie caused a traffic jam. And it will be very successful.

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  2. Is it a placebo, or an enema?

    1. Yes

  3. In the present scheme, the persons on the FISA court may be federal judges, but they are performing clerical functions, not judicial functions.

    By the statements made by those “judges” against the panel’s recommendation it is obvious they feel themselves more part of the NSA than any court should.

  4. Since Obama has nothing to hide, the People should demand tapes of all of his conversations. Of course, he knows he can invoke the old ‘it’s top secret sensitive information’ ruse. Funny thing is that the NSA could immediately tell us whether Governor Christie knew what his staff was doing. Why don’t we know?

    1. Funny thing is that the NSA could immediately tell us whether Governor Christie knew what his staff was doing. Why don’t we know?

      I’m pretty sure if the Obama administration had that information, it would be leaked to the media in short order.

      1. Only if if distracted attention from Obo’s continual lies.

  5. Keep calling them out Judge.

    I hope you employ a food taster and sleep in a different place every night.

    1. And I bet he doesn’t get invited to many weddings either. Nothing screws up the Bride’s big day more than a Hellfire missile fired from a drone.

  6. The only hope is that a rethuglican wins in 2016. I’m sure if that happens, Obama will go on a rampage of issuing executive orders that severely restrict executive power.

    Of course all those orders will have a secret clause that causes them to expire when a democrat wins the office.

  7. It is fundamentally impossible for a nanny state to reconcile itself to the idea that it is subservient to the public. The very concept that people are too stupid to govern their own day to day lives is wholly incompatible with the idea that these very same people should have authority over the government.

    The government will never rein in the NSA simply because it is utterly inconceivable to them that ordinary citizens have any standing to dictate such a thing. Citizen activism is a nuisance. Nothing more. This isn’t right vs. left, conservative vs. liberal thing. This is a government vs. non-government, us vs. them thing.

    1. You don’t understand. The government is subservient to the public. You see, the public is everyone except any individual with which someone from the government may encounter. So that individual they’re spying on? They’re doing it for the public, for everyone else. That individual activist is a nuisance to the public, to everyone else. Everything these public servants do is for the public. For everyone except any individual. That’s why there are no individual rights. They’re all group rights. They are all rights that belong to everyone except the individual.

      1. I laughed when I read your comment, until I realized it was true. They are spying on every member of the public because they have a responsibility to every other member of the public to protect them from that one member.

        Of course, the real reason they are spying on every member of the public is because they all represent a potential threat to those in power. Their worst nightmare, Edward Snowden, was right under their noses and they still didn’t see him coming. If they weren’t paranoid before, they are now. And that is just one more reason to like Snowden. Government should have learned an important lesson from Snowden which is that they are not untouchable. All governments need to learn that.

  8. Obama will go on a rampage of issuing executive orders that severely restrict executive power.

    He just might. After all, he obviously believes executive orders are irrevocable, since he hasn’t contradicted any of Booosh’s.

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  10. His third proposal adds insult to injury. He offers to stop the NSA from doing to foreign leaders what it has been doing to Americans. No doubt, that is to enable him to save face with his selfie-snapping European colleagues.

    Yes, what irks me the most is that he values (well, makes a gesture) that the privacy of some foreign leader is more important than the privacy of an American citizen. The double-think here is numbing. If one interviewer could just grow the spine to ask him, “You feel that foreign leaders deserve privacy, so you put a stop to NSA surveillance over them…but you don’t feel that an American citizen, who you represent and protect, who may have voted you into office, deserves that privacy?”

  11. “When President Obama chose a Friday before a three-day holiday weekend”…

    If it weren’t for Friday afternoons, the lying bastard would probably never address anything.

  12. Even if a third party capable and willing to store this data politically connected crony to shovel federal money to could be found

    FTFY

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  14. a Defender of the Constitution

    I thought he made an oath (twice) to “preserve, protect and defend the Constitution of the United States”?

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  16. “Just how massive is this scandal? The Washington Post has reported that the NSA hacks into 500,000 American buddy lists and 600,000 American address books every day, and the Guardian of London reported last week that the NSA seizes 200,000,000 American text messages every day.”

    Eventually Humpty Dumpty will fall off the wall, and as we have made the American name a bane to the rest of the world, they will just set and watch as it happens.

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