NSA

Secret Government Is the Chief Threat to Liberty

Obama's NSA reforms flunk civil libertarian tests.

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Snowden Obama
Der Spiegel

Last Friday, President Obama made a much anticipated speech at the Department of Justice outlining his proposed reforms of the National Security Agency's domestic surveillance program, with a particular focus on the NSA's clandestine collection of the records of essentially every American's telephone calls. Yesterday, the federal government's Privacy and Civil Liberties Oversight Board issued a legal and operational analysis of the agency's telephone spying program, concluding that it "implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value." How limited? "We have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation," the board stated. The report recommended that the program be ended.

In his speech, the president said that he had consulted with the board. If so, he did not heed their advice. Instead of ending the domestic telecommunications spying program, Obama offered what he characterized as "a series of concrete and substantial reforms" to rein in some aspects of domestic surveillance. These include a new executive order on signals intelligence—that is, spying on digital communications—in which intelligence agencies are instructed that "privacy and civil liberties shall be integral considerations." I feel safer already.

The drafters of the executive order are acutely aware that revelations like those made by NSA whistleblower Edward Snowden can embarrass officials. Because of this, the order admonishes intelligence bureaucrats to make damned sure their spying actually provides some benefit greater than the embarrassment officials will suffer should they be disclosed. This is basically the "front page test," in which officials ask themselves how they would feel if what they are doing were reported on the front page of a newspaper. If it would discomfit them, they shouldn't do it.

Meanwhile, for all its language about being more transparent and solicitous of civil liberties, the new executive order includes a secret classified addendum.

Besides the executive order, other reform proposals include a directive to the director of national intelligence and the attorney general to review the secret opinions of the Foreign Intelligence Surveillance Court each year, to see which (if any) can be declassified. In addition, the president asked Congress to create a panel of advocates who could provide an independent voice in significant cases before the FISC. What might constitute a "significant case" and who would make that decision was left vague.

The FBI issues thousands of national security letters (NSLs) each year demanding personal customer records from Internet service providers, financial institutions, and credit companies without prior court approval. In addition, the FBI usually imposes indefinite gag orders on anyone who receives an NSL, forbidding them to tell anyone else about it. While the president proposed nothing to limit the issuance of NSLs, he did promise to amend the use of NSLs so that the gag orders are no longer indefinite—unless "the government demonstrates a real need for further secrecy." He further promised to let communications providers give the public more information about the NSLs they receive. Earlier this week, for example, Verizon was permitted to tell us that the number of NSLs it received last year was somewhere between 1,000 and 2,000. How transparent!

In December, the president's handpicked Review Group on Intelligence and Communications Technologies recommended that the government not issue NSLs unless it first shows a court that it has "reasonable grounds to believe that the particular information sought is relevant to an authorized investigation" involving "international terrorism or clandestine intelligence activities." They also said that the gag orders should last only 180 days unless reauthorized by a court, and that the orders' recipients should be able to challenge them. The president ignored those recommendations.

The review group also argued that "the government should not be permitted to collect and store mass, undigested, non-public personal information about U.S. persons for the purpose of enabling future queries and data-mining for foreign intelligence purposes." Instead, telecom companies or a third-party private consortium should hold such records, which the government could search only pursuant to judicial order. The president half-adopted those recommendations by ordering the intelligence community and the attorney general to try to figure out a way to transition from the NSA bulk collection database to "a new approach that can match the capabilities and fill the gaps that the Section 215 program was designed to address."

Three leading civil liberties groups—the Electronic Frontier Foundation, the Center for Democracy and Technology, and the American Civil Liberties Union—have issued scorecards on the speech. All three commended the president for his half-measures to rein in the NSA's bulk telephone spying program. All three also gave the president some points for suggesting that some kind of independent privacy advocate should be appointed to argue for civil liberties protections before the Foreign Intelligence Surveillance Court.

But all three excoriated the president for not eschewing future efforts by the NSA to systematically weaken and sabotage encryption and Internet security technology. The groups also denounced the president for not ordering that national security letters issue only with prior judicial approval. Overall, they concluded, the president flunked. The Electronic Frontier Foundation gave the president a score of 3.42 out of a possible 12. The Center for Democracy and Technology gave him 4 points out of a possible 11. The American Civil Liberties Union was kindest, awarding Obama 4.5 points out of a possible 11. 

"Permitting the government to routinely collect the calling records of the entire nation fundamentally shifts the balance of power between the state and its citizens," the Privacy and Civil Liberties Oversight Board warned yesterday. Its report added that "while the danger of abuse may seem remote, given historical abuse of personal information by the government during the twentieth century, the risk is more than merely theoretical." Secret government is always the chief threat to liberty.

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  1. Whicn one do you trust?

    The one with less typos.

    1. Fewer typos.

      And you want to be my latex salesman.

    2. But it’s so simple. All I have to do is divine it from what I know of you: are you the sort of man who would put the poison into his own cup or his enemies. Now, a clever man would put the poison into his own goblet because he would know that only a great fool would reach or what he is given. I am not a great fool, so I can clearly not choose the wine in front of you. But you must have known that I am not a great fool, so I can clearly not choose the wine in front of me.

      1. You’d like to think that, wouldn’t you? You’ve beaten my Warty, which means you’re exceptionally strong, so you could’ve put the poison in your own goblet, trusting on your strength to save you, so I can clearly not choose the wine in front of you. But, you’ve also bested my NutraSweet, which means you must have studied, and in studying you must have learned that man is mortal and gets diabetes, so you would have put the poison as far from yourself as possible, so I can clearly not choose the wine in front of me.

      2. The pellet with the poison’s in the vessel with the pestle.

  2. You could leave ‘secret’ off the title and you would still be correct.

    1. That was my first thought.

      1. On second thought, it was mine as well. ‘Cause who says third thought anyway?

  3. Related, but to answer the alt-text question: , panics over bipartisan legislation to turn off electricity to NSA

    Each of the six states (Kansas, Indiana, Missouri, Washington, Oklahoma, and California) base their proposals on model legislation developed by the OffNow coalition, a group organized by the radically libertarian Tenth Amendment Center. So OffNow, and by extension the Tenth Amendment center, is more-or-less running the show here.

    Oh noes, libertarians manage to broadly strike consensus in red and blue states! Panic!

    More immediately, it could empower conservative state lawmakers to cut off Medicare, Medicaid or Social Security, to frustrate civil rights enforcement or even to prevent federal law enforcement from investigating criminals.

    Let’s hope so.

    Don’t doubt for a minute that, if the Tenth Amendment Center succeeds in establishing a precedent for nullification-via-power-outages, they will immediately deploy this and similar tactics to implement other parts of their sweeping libertarian agency. Some of their other initiatives include bills purporting to nullify federal gun laws and the Affordable Care Act, as well as a truly surreal proposal to undermine the Federal Reserve by requiring citizens to pay their state taxes in gold or silver.

    They are pissing their pants over this. It’s awesome!

    1. The more pants-wetting, the better. Holy shit do I love it when these pathetic squealers shit their pants. We need to bring guns into it somehow, and then they’re require D-Pants.

      1. The best part of that is the six states.

        Kansas, Indiana, Missouri, Washington, Oklahoma, and California

        That is pretty much a cross section of the country. It is everything from full retard Prog to full SOCON conservative and everything in between.

        These people ought to be wetting their pants. Whose left that supports them?

        1. Whose left that supports them?

          Enough to elect Hillary POTUS.

          1. Not even close. Hillary isn’t going to run on the “I will listen to your phone calls” platform. She will lie like a rug and pretend she is going to end this just like Obama did.

            1. Of course. That’s not what I’m saying. But the fact that enough of our society is dumb enough to vote for liars like Obama(twice) and Hillary, means that they support the NSA continuing to do what they are doing. If that’s through ignorance, then it is, but that doesn’t change the fact that voting in people who will continue and even further these policies is supporting them.

            2. “I will continue to work to consider closing Guantanamo just as my august predecessor did.”

        2. “Whose left that supports them?”

          The NSA, IRS, DEA, DHS, the Department of Holder….

          Shall I continue?

        3. More importantly with talk like this;

          The Tenth Amendment Center, in other words, is not simply distrustful of centralized power. They fear the federal government with such pathological intensity that they’ve actually suggested dissolving the Union in its entirety if Congress, the President or the federal judiciary takes any action that violates their idiosyncratic view of the Constitution. Their position on states’ rights makes John C. Calhoun look like a moderate.

          I need to know two things;

          1. Where is the new Mason-Dixon line?
          2. Which side is the State/Individual Rights side?

    2. radically libertarian Tenth Amendment Center.

      Anyone believing in constitutional law is a radical.

      Oh noes, libertarians manage to broadly strike consensus in red and blue states!

      Anarchy is nigh.

      their sweeping libertarian agency

      I lol’d at that one.

      1. Those damn libertarians want to impose liberty on society! Can you imagine? People doing things without asking permission and obeying orders from government? It would be chaos! Anarchy! The end of the world!

        1. “Papieren, bitte. I see that you are not living free. You are familiar with our slogan, ‘Live free or die?’ It is your choice, comrade.”

    3. “Each of the six states (Kansas, Indiana, Missouri, Washington, Oklahoma, and California) ”

      Wow, that’s an interesting group to find an agreement on an issue. Deep Red to Deep Blue.

    4. sweeping libertarian agency

      Wtf does that mean? I mean, wtf sense of “agency” do you even think they’re using? I’m totally confused.

      1. You see, in order to impose liberty on society, libertarians would have to force those who initiate force to stop initiating force. Being that that would require an initiation of force, that makes libertarians tyrants.

        1. I’m still pretty sure it was just a massive proofreading fail after someone reworded the post.

        2. You see, in order to impose liberty on society, libertarians would have to force those who initiate force to stop initiating force. Being that that would require an initiation of force, that makes libertarians tyrants.

          Those of you unfamiliar may laugh, but this was MNG argument against libertarianism almost word-for-word. He denied there was a moral difference between initiating force and resisting an initiation of force.

          1. Tony as well.

            1. I don’t believe you can put Tony and well in the same sentence.

              1. It’s easy.

                Tony is a dimwitted statist as well.

                Well, you see, Tony hates freedom.

                The best thing for us would be if Tony were stranded at the bottom of an exceptionally deep well.

          2. So, um, a mugger is my moral superior?

            1. Especially if he has a badge and a state issued uniform.

          3. Ah, the days of MNG. He also seriously argued that regulating interstate commerce included being able to force people to engage in commerce.

            1. You will buy my protection insurance. No? Say uncle.

        3. Being that that would require an initiation of force, that makes libertarians tyrants.

          And hypocrits! Freedom is slavery! Not taking is giving! /Tony

    5. The best part is how the author fails to see the hypocrisy of drawing the line here but allowing Washington and Colorado and any state with medical marijuana laws to thumb their nose at Federal pot prohibition.

      And since I was linked to that article from Tom Woods’ Facebook page, the comments are almost all libertarians asking if Vermont was wrong to nullify the Fugitive Slave Act of 1850.

    6. That article givz me a happy.

    7. Aahhhhhhh yes!

      “When you’re taking flak, it means you’re over the target.”

  4. Which one do you trust?

    Can we have some more challenging questions, please?

    It’s too obvious that everyone here trusts Snowden more, because we’re all racist. If Snowden were black and Obama was white, we’d all be calling for Snowdens head.

    1. I don’t know that I trust Snowden, but I do know that my distrust of the president and his administration is deep and profound.

      1. See, my point is made, racist!

        1. No, I judge him by the lack of content of his character, not the color of his skin.

          1. Sure, that’s what all you radical extremists say.

      2. It doesn’t matter if I trust Snowden. The NSA admitted what he released was genuine. Once that happened, Snowden’s trustworthiness became irrelevant. Even if Snowden is a liar, the NSA admits he was telling the truth here.

    2. I trust no one that hasn’t earned that trust by being trustworthy to me.

      If the question were “Which one do you trust more“, I would go with Snowden. Between the two, he’s the only one that hasn’t outright proved to be untrustworthy. Still doesn’t mean I’d trust him to hold a million dollars for me.

  5. You know, what’s wrong with secret government? I mean, I can trust Hal Holbrook, right? I saw him live in “Mark Twain Tonight,” and he seemed trustworthy.

  6. and has shown only limited value.” How limited?

    Quite frankly, I don’t care if the action cured cancer, aids and ended world poverty. That’s irrelevant. It’s unconstitutional. PERIOD.

    I think arguing the action’s effectiveness is counterproductive. It gives the idea that it’s okay to violate principles so long as the outcome is positive.

    1. It gives the idea that it’s okay to violate principles so long as the outcome is positive.

      I agree, but when arguing with progressives as well as national security conservatives, they have no principles to begin with. So the only argument one can make is that it’s ineffective at best.

  7. I would encourage everyone to read the EO. As an aside, it is an incredibly poorly drafted EO that hides its substance in an line after line of meaningless verbiage and platitudes. If there is any doubt in your mind about the relative intelligence of the people in this administration versus the ones in the last, read this EO and then read the Bush revision of 12333. Whatever that administration’s faults, they were at least competent enough to write a proper EO. But on to what it says.

  8. Here is what they can collect Bulk information for

    due to technical or operational considerations, is acquired without the use of discriminants (e.g., specific identifiers, selection terms, etc.). only for the purposes of detecting and countering: (1) espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests; (2) threats to the United States and its interests from terrorism; (3) threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction; (4) cybersecurity threats; (5) threats to U.S. or allied Armed Forces or other U.S or allied personnel; and (6) transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named in this section.

    1. Note it includes cyber threats, threats to armed forces, even those located within the US, and the dreaded transnational crime threats. First, that includes a whole bunch of things that are in my mind ordinary crime and have nothing to do with the NSA’s purpose. Second, all of those qualifications are so broad they are meaningless. Virtually any crime can be linked somehow to “international crime”. International crime is about as meaningful of a restriction as interstate commerce. More importantly, since when does the 4th Amendment no longer apply when I am committing a crime with a foreigner? This is one of the most under covered, least understood, and darkest elements of this administration. They have bought into the idea that international crime is a national security issue. Combine that with the Bush doctrine that national security is not subject to the 4th Amendment and you end up withe the 4th Amendment no longer applying to virtually anything but the most local of crimes and probably not even then.

      1. “More importantly, since when does the 4th Amendment no longer apply when I am committing a crime with a foreigner? ”

        Most definitely when said crime occurs within 100 miles of a border, or coast, of the US.

        The DHS has taken upon itself to declare that the constitution is “suspended” in those areas.

        1. You have to be crossing the border. And even the 100 mile rule only means they can ask you for proof of citizenship not search your car.

          So this goes further than even CBP.

          1. No John you don’t have to be crossing the border. The “constitution free” zone extends 100 miles into parts of the country nowhere near the border. Here’s a map.

            http://goo.gl/2G4CB0

            Here’s one of the other things they do in addition to asking about citizenship, WITHIN 100 MILES OF THE BORDER.

            http://rt.com/usa/court-uphold…..rches-041/

            I’m really surprised this doesn’t garner more attention.

  9. Here are the defined limits

    In no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S. business sectors commercially; or achieving any purpose other than those identified in this section.

    It sounds nice. But if you know how these things work, it is meaningless. The key words here are “for the purpose of”. Well how do we know what the purpose of something really is? Without reading the mind of the NSA, we have no idea. This paragraph is nothing but boiler plate that anyone wanted to abuse the system can use to cover up their abuse. I wasn’t checking on so and so’s email for the purpose of suppressing dissent. He just happened to be a critic of the government. I was trying to go after international gangs or terrorists and mistakenly thought he might be involved.

  10. Here is a key provision that I doubt many reporters or anyone who doesn’t do this kind of law for a living will understand the significance of.

    The EO says

    Dissemination: Personal information shall be disseminated only if the dissemination of comparable information concerning U.S. persons would be permitted under section 2.3 of Executive Order 12333.

    12333 is what governs IC operations. And the referenced section includes this bit

    c. Incidentally obtained information that may indicate involvement in activities that may violate Federal, state, local, or foreign laws; and ;

    Section 2.3 of 12333 has not been a problem in the past because 12333 says up front that the IC can’t collect on US persons unless there is some connection to a foreign power. What that is saying is, if you are collecting on a US person during the course of one of these secret foreign IC things and you find out the person is engaged in criminal acts, you can share that information with law enforcement. But remember, as I discussed above the new bulk collection EO doesn’t have that restriction. It applies to all kinds of investigations that are not international or really intelligence related.

    1. So for example. The NSA investigates Joe Schmo because they think Joe Schmo might be hacking into government accounts. Joe is not a terrorist or a spy. He is a thief. But he is also a “cyber threat”. So without any probable cause, the NSA does a bulk collection on Joe Schmo and turns the evidence over to the FBI for prosecution.

      That would be called ending the 4th Amendment.

  11. Sorry this thread is dead. I was hoping someone might read my thoughts on the EO and give me a sanity check. Am I missing something?

    1. You must consider your audience. For nuts like us, it doesn’t matter if the document was the most well written, logical, and escape-proof legal document ever drawn up. That the government is large enough to have these capabilities means that it will, or will in the near future when given the justification (like some sort of attack).

      Not that you’re wrong in that this EO is a steaming pile of monkey shit hurriedly thrown at the wall to appease a couple hippies still kicking around the democratic party. It’s just that I think we’ve gone beyond the point where anyone or anything can exert control over our(their, really) national security apparatus.

      1. Oops…

        That the government is large enough to have these capabilities means that it will, or will in the near future when given the justification (like some sort of attack)use them.

      2. But it is important to point out the mendacity of these people. Most low information voters and indeed most journalists (who are for the most part half wits) see that Obama did an EO restricting the NSA and think Obama has done something to fix the problem when the language of the EO clearly shows he hasn’t.

        1. Well, yeah. You’re right insofar as the fact that they can’t even be troubled to pretend to do something about this should be troubling to people.

          I mean, shit, that goddamn thing reads like a freshman poli-sci group project.

        2. Well, yeah. You’re right insofar as the fact that they can’t even be troubled to pretend to do something about this should be troubling to people.

          I mean, shit, that goddamn thing reads like a freshman poli-sci group project.

          1. Beyond its disturbing mendacity, the writing itself is embarrassingly bad. To think top government lawyers drafted this thing.

        3. Well, yeah. You’re right insofar as the fact that this administration can’t even be troubled to pretend to do something about this should be troubling to people.

          I mean, shit, that goddamn thing reads like a freshman poli-sci group project.

    2. It is admittedly nice to know that they still make a pretense to follow their own laws, since they go through the effort of writing in all these half measures and exceptions (before even the secret part of the EO)

      Were going to be in real danger when the president feels fine signing an executive order clearly forbidding any domestic data collection without a warrant, and then completely ignores the law entirely.

      At least we can point out how bad and full of holes the EO/law is, which is easier than proving the law on the book is completely meaningless, no matter what guarantees it supposedly makes.

      1. They always have the cover of law. It take a real reprobate on the level of Castro or maybe Pol Pot to just do shit without even drafting a meaningless law.

        This country is too German for that. The Nazis murdered 13 million people all by the letter of law and regulation. We are that way. The President will never ignore the law. He will just interpret and write laws that allow him to do what he wants.

        1. The President will never ignore the law. He will just interpret and write laws that allow him to do what he wants.

          Part of the problem, of course, is that modern presidents have usurped the authority to interpret and write laws in the first place. The courts and the congress were supposed to perform those two functions.

          While I agree that if hard tyranny ever does come here it will be under the color of law, the fact that modern presidents are allowed to get away with interpreting and writing “law” in the first place means that they can pretty much do whatever they want. Until some future congress actually gets the balls to impeach and remove a president from office for over stepping their bounds I don’t expect much to change.

          1. It all started with Congress ceding regulatory power. One of the best things you could do would be declare the entire CFR null and void. Make Congress pass those interpretations or the courts give them not the executive.

          2. Well it will change, but for the worse of course.

  12. These are Great Men. Wise Men. Honorable Men.

    You cannot expect to comprehend the genius of their reasoning.

    Just go on about your mundane business, and put your trust in them.

    1. Top. Men.

  13. Wtf does that mean? I mean, wtf sense of “agency” do you even think they’re using? I’m totally confused.

    I’m guessing a typo’d “agenda”

    “sweeping libertarian agenda” makes sense

    Heaven knows, I’m all aflutter in terrified contemplation of such a thing.

  14. the new executive order includes a secret classified addendum.

    I managed to get a hold of the secret addendum. It says:

    “Psych! Just kidding everyone, cary on as usual. Peace out bitches!

    Signed,

    Barack ‘FYTW’ Obama”

  15. Secret government and blanket surveillance are just two reasons why it’s imperative Republicans are returned to power until a better solution can be found. Not because Republicans are innocent and Democrats aren’t, they’re both guilty as hell. Because when Democrats are doing it there’s not a peep from the news media and no one to fill the streets in protest. No opposition whatsoever.

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  19. Which one do you choose? I think I prefer the one with less speech.

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