Obama Administration

The Menace of Secret Government

Obama's proposed intelligence reforms fail to safeguard civil liberties

|

In January, President Barack Obama made a much-anticipated speech at the Department of Justice outlining proposed reforms of the domestic surveillance programs run by the National Security Agency (NSA). The secretive spy agency has taken a public battering ever since former NSA contractor Edward Snowden began blowing the whistle on its clandestine collection of basically every American's telephone records.

"We will reform programs and procedures in place to provide greater transparency to our surveillance activities, and fortify the safeguards that protect the privacy of U.S. persons," the president proclaimed. Unfortunately, Obama's proposed changes to domestic surveillance programs are not nearly transparent enough, and fail to adequately protect the privacy of Americans.

In January, the federal government's Privacy and Civil Liberties Oversight Board, an independent agency charged by Congress with advising the president on the privacy and civil liberties repercussions relating to fighting terrorism, concluded that the NSA's domestic surveillance "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 oversight board recommended that the surveillance program be terminated. In his speech, the president said that he had consulted with the board. Yet he did not heed its advice.

Instead of ending the unconstitutional domestic telecommunications spying program, Obama offered what he insisted were "a series of concrete and substantial reforms." These include a new executive order on signals intelligence-that is, data connected with private communications-instructing surveillance agencies that "privacy and civil liberties shall be integral considerations."

The order further admonishes intelligence bureaucrats to make sure their spying actually provides some benefit greater than the embarrassment officials will surely suffer should they be disclosed. This is the "front page test," or how officials would feel if what they are doing were reported on the front page of a newspaper. If discovery equals discomfort, then maybe they shouldn't be doing it in the first place.

And for all its language about being more transparent and solicitous of civil liberties, the new executive order includes a secret classified addendum, the content of which we can only guess at, apprehensively.

Obama's other reform proposals include requiring both the director of national intelligence and the attorney general to review the secret opinions of the Foreign Intelligence Surveillance Court (FISC) each year, to see which if any can be safely declassified. (Yes, we've gotten to the point where even the legal reasoning of a secret court order is considered secret.)

In addition, the president asked Congress to create a panel of advocates to 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.

Using authority created by Section 215 of the PATRIOT Act, the FBI each year issues thousands of national security letters (NSLs) demanding personal customer records from Internet service providers, financial institutions, and credit companies without prior court approval. In addition, the FBI typically imposes indefinite gag orders on anyone who receives an NSL, compounding a Fourth Amendment transgression with an infringement on the First.

While the president proposed nothing to limit the issuance of NSLs, he did promise to amend their use so that the gag orders are no longer indefinite. Unless, that is, "the government demonstrates a real need for further secrecy." Obama further promised to let communications providers give the public more information about the NSLs they receive. In January, for example, Verizon was permitted to announce that the number of NSLs it received last year was somewhere between 1,000 and 2,000. How transparent!

In December, the Review Group on Intelligence and Communications Technologies-a group of five advisers handpicked by the president a few months earlier to review and provide recommendations on how to collect electronic intelligence without violating privacy and civil liberties-recommended that the government not issue NSLs unless it first demonstrates to 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." The group also recommended that the gag orders last only 180 days unless reauthorized by a court, and that recipients should be able to challenge the orders. But the president ignored all these recommendations.

The review board strongly recommended that governance of the NSA be reorganized. The group proposed that the agency's director be confirmed by the Senate and that civilians be eligible to hold the position. The panel also suggested that the NSA director should not head up the U.S. Cyber Command, as General Keith Alexander has done during his tenure.

Obama rejected these ideas and nominated another military officer to head both agencies, Vice Admiral Michael Rogers. That's too bad, because the review board's recommendations would be significant improvements.

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-issued scorecards on the president's reform speech. All three commended the president for his half-measures to rein in the NSA's bulk telephone spying program, and all three gave the president some points for proposing an independent privacy advocate before the Foreign Intelligence Surveillance Court.

But all three also excoriated the president for not eschewing future NSA efforts to systematically weaken and sabotage encryption and Internet security technology. The groups also denounced the president for not requiring national security letters to be issued only after judicial approval. Overall, they concluded, Obama 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, and the ACLU awarded him 4.5 out of 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 in its report. "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."

It's a timely if late-breaking reminder of an eternal truth: Secret government is always the chief threat to liberty.

Advertisement

NEXT: "Change the Presidential Debates": Gary Johnson and Our America's Bold New Lawsuit

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I was speaking with my father, who had been a sigint guy back in the early 60s in Turkey (when they watched the Crimea region from across the Black Sea) and he said that back then the redeployment of Russian troops into Crimea wouldn’t have been missed like it was now until they were already there. The reliance now on phone and internet intercepts gives people a good way to avoid detection, while back in the day, a good sigint guy could read a lot into what he wasn’t hearing. So not only does the NSA violate the Constitution, the emphasis on its variety of sigint is actually detrimental to finding real information. It isn’t just a waste of time and money, it hurts what it is supposed to serve.

    1. a good sigint guy could read a lot into what he wasn’t hearing.

      “The notes I handle no better than many pianists. But the pauses between the notes — that is where the art resides.” — Arthur Schnabel
      There’s an art to listening for what isn’t said, for watching for what isn’t happening, tasting for that little layer of flavor that just isn’t quite there.

      1. Exactly. Obama the empty suit. Jarrett and others who write his homilies are governing.

    2. This is so much “it”. Tons of warnings on the Boston bombings, little or no action taken in response. Tons of explicit warnings on the underwear bomber – they miss it utterly and let the guy ON A FUCKING PLANE.

      Old-fashioned, actual *warnings* not heeded, cause they weren’t encrypted emails or intercepted phone calls.

      Those are just two, obvious, known examples. They spend so much time checking what pr0n I’m looking at that they miss actual threats.

      Dumbasses. But, mostly, an utter waste of time, [my] money, all while trampling freedom and accomplishing nothing.

      Fuck ’em.

      1. “Tons of explicit warnings on the underwear bomber – they miss it utterly and let the guy ON A FUCKING PLANE.”

        Did anybody else see the story about the kid who sneaked into the wheel well of a commercial flight to Hawaii?

        http://www.latimes.com/nation/…..7852.story

        They’re listening to all our phone calls, but they can’t stop a runaway kid from walking up to a commercial flight on a runway and getting into the landing gear?

  2. “When I want your input, I’ll have it beaten out of you.”

  3. It’s a timely if late-breaking reminder of an eternal truth: Secret government is always the chief threat to liberty.

    Ronald Bailey knows what he’s talking about when it comes to threats to liberty. Now lie back so he can strap you down to a table and have medical bureaucrats forcefully inject you with politically favored medicine.

    1. I happen to disagree with Mr. Bailey on the subject of vaccines, but his argument is more nuanced than that.

      Why don’t we leave twisting Bailey’s arguments into things he would never say to the enemies of libertarianism?

      Don’t they already do a great job of that without our help?

      1. How is it more nuanced? That he totally misapplies property rights and obligations towards invasive mutating microbes? Misappropriating rights as a means of compelling positive actions from others isn’t nuance and it doesn’t further the cause of liberty.

        1. “How is it more nuanced?”

          His argument is that people shouldn’t be allowed to endanger other people’s children–just because they believe things that may not have much of a scientific basis.

          His argument is not that the government should strap people down and violate their rights.

          If someone summarized your side of the argument as being enthusiastic about needlessly killing children for no good reason, how accurate would that be?

          Your argument is more nuanced than that, and his argument is, too.

          1. His argument is that people shouldn’t be allowed to endanger other people’s children–just because they believe things that may not have much of a scientific basis.

            The validity of this argument rests upon an unproven assertion. That assertion being that one is violating the rights of others by not vaccinating.

            Moreover, if people are liable for acts of nature, then the landowner who doesn’t exterminate the wolves in his forest is liable for all the cattle eaten by wolves. The property owner who doesn’t destroy all the bee hives, is violating the rights of the person who gets stung. None of that has any basis in either Common Law or libertarian philosophy. The place you find it, is within the technocratic whims of Ronald Bailey.

            His argument is not that the government should strap people down and violate their rights.

            Yes because he believes unvaccinated people forfeited their to not be strapped down and forcefully injected. Thus no rights to violate. That argument is nothing more than a poorly constructed opinion.

            If someone summarized your side of the argument as being enthusiastic about needlessly killing children for no good reason, how accurate would that be?

            It would be clearly false. I’m not perpetuating falsehood when I say that Ronald Bailey supports compulsory vaccination, enforced by political institutions. And I’m not lying when I say that position is inconsistent with liberty.

            1. “I’m not perpetuating falsehood when I say that Ronald Bailey supports compulsory vaccination, enforced by political institutions. And I’m not lying when I say that position is inconsistent with liberty.”

              No, I don’t suppose you’re lying, exactly, when you say those things, but since those weren’t the things you wer saying, I don’t see what that has to do with anything.

              “Now lie back so he can strap you down to a table and have medical bureaucrats forcefully inject you with politically favored medicine.”

              Are we seriously supposed to think that’s Bailey’s argument?

              Do you realize that some of us have been reading Bailey’s posts on Hit & Run for more than ten years now?

              His argument is much more nuanced than you made it out to be. And just for future reference, Pro-Life people aren’t really in favor forcing women into back alleys with coat hangers, and Pro-Choice people don’t really get off on killing babies, either.

              Their arguments are more nuanced than that.

              And Bailey’s arguments? Are a HELL of a lot more nuanced than you made them out to be.

              Why pretend otherwise?

    2. Ronald Bailey knows what he’s talking about when it comes to threats to liberty. Now lie back so he can strap you down to a table and have medical bureaucrats forcefully inject you with politically favored medicine.

      Funny, I thought this article was about the NSA, not fucking vaccines. How about we just stay on fucking topic, how’s that? Oh wait, Mr. Bailey has strayed from the One True Libertarian Faith in one area, therefore nothing he writes about any other topic matters. We must purge the impure thinkers!

      1. Fortunately it’s a Libertarian-style purge, so instead of gulags, torture, and executions it’s mostly just heavy micro-aggression.

      2. Yeah absolutely. Purge logical inconsistency, all day long.

        1. I don’t give a shit about logical consistency. I care about what works. Better to be logically inconsistent than to have disease kill thousands.

          And religion and libertarianism are fully compatible, BTW. You seem to be an edgy teenager who attaches himself to libertarianism because tumblr is too mainstream.

    3. Piss off troll. I don’t want to get a disease because some retard believes in deepak chopra’s mystical healing potion. Anti-vaxxers are the creationists of our time. They should be removed from the libertarian movement.

  4. “We will reform programs and procedures in place to provide greater transparency to our surveillance activities, and fortify the safeguards that protect the privacy of U.S. persons,” the president proclaimed.”

    I appreciate your sincerity, Mr. President, but let me be clear: I’d rather keep the Fourth Amendment instead.

  5. “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.”

    No shit. Counterterrorism was never it’s intended purpose.

    Now we have secret executive orders? In what way could anyone argue that this is legitimate government?

    1. Well if you don’t like it, just complain publicly and wait for a secret executive order with your name on it.

      Shouldn’t take too long.

  6. We must be aware by now that we are under a Socialistic president who insists on more direct power. His statements of singular rule without the Congress and his packing the DC Court of appeals with very left leaning Judges by changing 96 years of Senate voting rules shows how serious he is to gaining Singular Rule! His ambition to grow Executive power and socialize Federal Government has been made clear much like Wilson.

    Wilson before his stroke had singular rule ambition. One must wonder and we’ll find out very soon whether this one has the same. My bet is he will and will make the attempt!

  7. government’s Privacy and Civil Liberties Oversight Board,

Please to post comments

Comments are closed.