Wolves in the Fold: FBI = NSA = 1984

February 26, 2016–This is major league serious business. I might observe how tiresome it is to have to go back again and again to these issues over government access to private communications of citizens, except that the issue is way too important to be left to government officials. Like the hammer seeing only nails, if you’re the FBI every telephone is a potential gateway to a crime (so you need them all). Weren’t we in this exact same place two years ago with the National Security Agency? Let’s review the bidding.

James B. Comey, the FBI director, won big points in my book a decade ago when he stood up to White House thugs trying to strongarm the Justice Department over the NSA blanket surveillance program Stellar Wind. But he’s blown it all now–and is plenty deep in the Big Muddy–with his dogged bids to saw out a back door into everyone’s private communications. In The Family Jewels I documented at some length the government excesses this kind of thing leads to. Edward Snowden, practically moments later, revealed NSA programs–starting with Stellar Wind but including a lot more–that were doing just that.

The NSA used to rely upon the FBI as front man. That is, if NSA wanted some access it would prevail upon FBI to open an investigation and make applications to the FISA Court in its own name. After the judges approved the warrant the agencies would share the take between themselves.

In one sense the current mess about access to the San Bernardino murderers’ phone is a replay of that. The ink was hardly dry on the NSA’s stuck pig squeals that denying blanket eavesdropping would emasculate it–followed by the tech companies’ promises they would add encryption–and the cosmetic “reforms” President Obama enacted–before the FBI started complaining about its iphone access. (Or, more properly, about its diminished ability to wiretap.) Director Comey began this drumroll long before the San Bernardino murders. To say, as he still did yesterday in front of a congressional committee at an annual threat hearing, that this is all about one telephone, just boggles the mind.

It is possible that Comey (and the FBI) really believe this is just about one phone. Naturally, that strains credulity, but of course this is the FBI, the government agency which spent multi billions of dollars and took over ten years to fail at the simple task of getting all of its employees onto a common computer network.

The bit from Comey about The Bureau not being able to look itself in the mirror, etc., if it could not give the victims’ survivors good answers is well-meant but it is devised to pull at heartstrings. FBI does not need iphones to obtain the evidence it needs for good answers–that it has already collected. The San Bernardino murders are past us, so no current law enforcement objective obtains. Even the intelligence potential of these iphones is minimal. These were not people talking to ISIS strategic commanders, nothing beyond minutiae stands to be revealed. There is no trial or indictment for which to collect evidence either.

The only purpose for which this access is relevant is for the future–which means, the future being unpredictable, and all–the potential for access to every iphone.

FBI mavens claim their demand for access to the San Bernardino phone is unique and can go no further based on the notion that Apple can write a “back door” (datamining) program and this would be installed in just the single phone by use of a maintenance access code unique to that phone. The Bureau seemingly does not understand that all iphones are identical, their operating systems also, and the back door program would be too. The only protection left to the individual is the maintenance code. At the point in the future when any of this becomes relevant, the precedent for tech companies yielding their maintenance codes to government inquisitors will already have been set by the “San Bernardino phone” case.

You can see how insidious this is. It is Apple executive Ted Cook, not the FBI who is right–this is about the future, not the San Bernardino case. That’s the only way it makes sense, and the only explanation that accounts for James Comey’s drumbeat about encryption that starts from before the San Bernardino murders.

This is the place where I have to disagree with columnist David Ignatius of the Washington Post, who writes in today’s issue that “the basic problem” with Apple’s position is that “a private company and the interests of its customers should prevail over the public’s interest as expressed by our courts.” Ignatius is an experienced and acute observer of the security agencies, but here he carries their water.

Here Apple (and its customers) are only surrogates for the public. It is the public that is the real target. That Apple stands in the place of the citizenry is purely a function of the type of hi tech equipment involved here. As for the expressions of our courts, Ignatius knows better. Courts, in particular at the district level, have as much resilience for standing against national security claims as ice cubes in an oven. That FBI would obtain a court order was perfectly predictable. To represent that as a considered judgment is short-sighted. One need only look at the judgments of our supposedly conscientious Foreign Intelligence Surveillance Court to see the legal system stretching ancient precedent to justify modern intrusiveness.

The intrusion is a Constitutional matter, and the answer has been there all along in the Bill of Rights. The Fourth and First Amendments prohibit intrusive surveillance, individual or mass, in any form at any time. End of story.

Or not. It won’t be the first time myopic self-interest or security hysteria have breached the walls of constitutional rights. The wise citizen will take measures to avoid intrusive surveillance. For me, I am inclined to take my typewriters out of storage. I understand the German intelligence service BND is doing the same. Decades ago the NSA spent millions (probably now billions) figuring out how to recover the text printed with a typewriter ribbon. I bet you they have now lost that skill they once had.

 

CIA: Do They Work for Us?

November 17, 2015–Readers here will have seen me from time to time lamenting the antics of people like Fearful Leader–Director of National Intelligence James Clapper–or agencies such as the CIA and NSA. It’s time to do it again today. It seems the security services have forgotten that they work for the American people, and not the other way around. Let’s be certain no mistake is made here.

Yesterday at a Washington think tank, the Center for Strategic and International Studies, CIA director John O. Brennan used the occasion of the Paris attacks to make strident demands for new powers of investigation, intrusive and insistent. It is stunning–and shabby– that the CIA director should use the tragedy of the Paris attacks to advance these demands. They involve a question already asked and answered. There was a presidential decision. It went against the CIA. Who does Brennan work for?

I let pass an opportunity to comment some weeks ago, when the current FBI director, James Comey, went around demanding that the NSA and FBI be given the power to dictate encryption standards for communication devices, or at a minimum that the security services have a “back door” built into encryption programs so they can surreptitiously read messages people think are secure. I thought the issues had been thoroughly aired in the debate after the Snowden affair. Congress has passed a law. In the last week the Courts have again ruled the NSA eavesdropping unconstitutional. And even President Obama, friend of the intelligence agencies, ruled against Comey’s demands.

Then come the Paris attacks. Yesterday I commented on Fearful Clapper latest mongering. Afraid even to reveal his name, Mr. Clapper set the stage for Brennan’s CSIS appearance, and his remarks spy chieftain Brennan presses for the same things Comey did. As if the decision had not already been made. As if CIA can force Obama to reopen the question. As if the security services can reargue any issue until it comes out the way they want. It’s the same arrogance CIA displays over declassifying its dirty laundry on torture.

At Reuters I posted a piece on manhunts in the wake of Paris. There is good reason to suppose the attacks will end up damaging the jihadi perpetrators far more than the French republic.  This is with only the presently-existing techniques. (And, indeed, I am not aware the security services, U.S. in particular, are short of any technology or authority they need to find the bad guys.) Do not listen to the fear mongers!

Big Brother Almost Won!

September 24, 2015–The story of what happened with the National Security Agency’s massive domestic eavesdropping program just keeps getting blacker, even as it comes into better focus. Today’s entry in the NSA sweepstakes concerns what we learn from a new redaction of a review of the program codenamed Stellar Wind that resulted from an investigation by the inspectors general of five agencies. A more heavily expurgated version of this document had been declassified a while back, but the New York Times sued to get the full report released. Among the details in the latest version are ones that should make your skin crawl. During George W. Bush’s presidency, Big Brother almost succeeded in extending his umbrella across the land–and I don’t mean simply the big ear of the NSA.

Stellar Wind is the real name for the so-called “President’s Surveillance Program,” the innocuous-sounding name someone dreamed up when news of the NSA surveillance program leaked midway through Bush’s years and the administration scrambled to defend and extend it. I wrote about this at some length in my book The Family Jewels. We generally understood that Mr. Bush had approved the eavesdropping a couple of days after the September 11 attacks, that it aimed at terrorists, that he re-approved it every 45 days. There was a remarkable confrontation in March 2004 at George Washington University Hospital, where Attorney General John Ashcroft had gone for treatment of pancreatitus, and White House officials (chief of staff Andrew Card, top lawyer Alberto Gonzales, and vice-presidential counsel David Addington) went there in an attempt to induce Ashcroft to sign the latest renewal. Press accounts previously indicated that the dispute centered on NSA’s desire to widen its collection to cover all Americans. In the new declassification we learn that it was much worse.

The NSA program–like the CIA’s torture project–was based on faulty legal advice (in fact, the same faulty legal advice) from Justice Department lawyer John Yoo, with his imperial vision of presidential power. Once Yoo left the Department of Justice (DOJ) in the spring of 2003, his superiors looked at the legal advice underlying Stellar Wind and found it wanting. The problem was that there was a law that laid down conditions for what the NSA was doing and that Yoo’s analysis had wholly failed to take this into account. Yoo’s successor was not initially permitted to know of Stellar Wind and could not craft a new justification for it. Then Dick Cheney’s lawyer told DOJ it would have to justify the request before he would ask President Bush to bring the DOJ official into the circle of those who knew of Stellar Wind.

I note that because we’re seen Addington’s footprints before, all over both CIA and NSA Bush-era actions, and sure enough he’s got a central role here. Anyway, the problem in May 2004 began when DOJ found the NSA had already exceeded its authorities and was collecting beyond what the legal memoranda provided. Late the previous year DOJ officials had informed Addington and Gonzales at the White House that they had doubts regarding Stellar Wind. The White House lawyers bristled when DOJ officials asked permission to inform Deputy Attorney General James Comey. As it happened, even before Comey was formally brought into the circle he harbored doubts, which he talked over with John Ashcroft only hours before the latter had his medical emergency and went to the hospital. It was at that point, with Stellar Wind up for its latest re-authorization, that Alberto Gonzales phoned DOJ asking for a letter certifying that John Yoo’s (now discredited) legal opinions still applied. Top DOJ officials determined that the Yoo memoranda failed to accurately describe, much less justify, the NSA spying. The Justice Department refused.

At noon that day senior White House, NSA, and CIA officials convened to consider how to proceed. Vice-President Cheney told the group they might have to re-authorize Stellar Wind without the participation of the Justice Department. At that point the FBI director declared such a move would be a problem for him too. This was when the Bush people decided to have the meeting with congressional officials that Mr. Cheney makes so much of in his memoir (claiming Congress approved when he was doing)–when the White had been blocked from proceeding.

This is also the backdrop  for the rush to Ashcroft’s bedside, where Card, Addington and Gonzales pushed their way into the hospital room over the protests of Mrs. Ashcroft; and DOJ officials too rushed in to stiffen their boss’s backbone. The Justice Department officials got there first. Ashcroft told the Bush people that Mr. Comey was the man they had to deal with so long as he remained in the hospital.

At that point Mr. Bush’s subordinates left, and they presented the president with a re-authorization document the next morning that George W. Bush signed. It had no Justice Department certification, and there were three more big differences from previous iterations of Stellar Wind:

(1) the document asserted that Chapter 119 of Title 18 of U.S. Code was “displaced” by a president’s authority as commander-in-chief;

(2) explicit statements replacing language requiring some terrorism-connection for a telephone metadata connection with a stipulation the collection merely had to be in pursuance of the authorization document itself; and

(3) a disingenuous invocation of Attorney General Ashcroft’s support with an assertion that DOJ had approved similar authorizations in the past.

In the paperwork that circulated around this dispute is a memo from David Addington–the man who used to carry a vest-pocket copy of the Constitution in his jacket–saying that with this authorization President Bush had decided to reinterpret the laws of the United States.

It was at that point when the ranking officials of the Department of Justice, plus the FBI director, threatened to resign en mass if this maneuver was permitted to stand. Over the next few days President Bush met with Mr. Comey, a different renewal was crafted with the old terms, differences papered over, and the move begun toward putting Stellar Wind within some kind of legal framework. In many posts on this site I have argued that framework was unconstitutional, but at least it was not a direct usurpation of the legislative power of lawmaking in the United States, as was contained in the NSA renewal document of March 11, 2004. That document was the equivalent of a coup d’état. It would have ended constitutional government in the United States. Big Brother still has to wait.

 

Sitting in Their Own Stool

August 29, 2015–Have you noticed that the National Security Agency (NSA) no longer insists its vacuum eavesdropping programs “caught” hundreds of terrorists and “saved” thousands of lives? NSA is also now silent about the specific claims it made for particular plots it alleged were broken up. It had abandoned the number “55,” alleged as a specific number of cases where the blanket spying was crucial, and the number “14,” a later version of the same claim. The ethereal spooks are no longer even talking about “one”–the guy who wanted to give cash to Somali fundamentalists, which under current statutes represents aiding terrorism. (It turns out the FBI had a bead on that person before NSA knew anything about him.)

Instead the NSA is trumpeting the latest set of court decisions, in which the United States Court of Appeals for the District of Columbia ruled that an injunction against the NSA electronic eavesdropping has to be lifted because the original plaintiff lacked “standing” to sue, since they could not prove their phone records had been collected. The case has been sent back to the lower court for review.

How do the spin doctors pitch this? It “proves” that vacuum eavesdropping is “legal.”

Talk about Big Brother. A more convoluted, illegitimate application of judicial authority can hardly be imagined. Here is a tightly-held program–beyond top secret–that nobody knows about which is recording everybody’s information. But you can’t sue because you can’t “prove” NSA took your data. To put it another way, the original basis for “legality” was that broad classes of people have no “interest” in the privacy of their “business records,” which the NSA can therefore collect, but no member of that class can have standing to sue, essentially because the NSA has an interest in the privacy of its spying.

This despite the fact that Congress has passed a law revoking NSA’s authority to spy and giving the agency until November 29 to adapt to a new arrangement, and despite the fact that an injunction had actually been issued, simply held in abeyance.

Those are double standards. The courts should be ashamed. The NSA, which no longer dares front claims for the effectiveness of its blanket eavesdropping, now hides behind the fig leaf of “standing” for legal proceedings.

NSA: Death from a Thousand Cuts

May 9, 2015–The Court ruled, now it has ruled again. The United States Court of Appeals for the 2nd Circuit found unanimously that the National Security Agency’s bulk eavesdropping program is illegal. Section 215 of the USA Patriot Act, according to the Court’s opinion–called “blistering” in the Washington Post–cannot sustain the weight being put upon it by government officials who claim the provision authorizes their electronic spying on U.S. citizens.

Actually you read the argument here first, more than year ago, in a series of posts. Longer ago than that were some posts I did for the History News Network. In them I probed the meaning of the legal term “relevance” as it applies to the phone records the NSA was vacuuming up. For a very long time those posts were archived. Earlier this year I gathered them together in a longform post called The NSA Watch (you can find it in the “Product” section of this website). The 2nd Circuit’s unanimous opinion follows our reasoning precisely. The NSA’s “expansive concept of ‘relevance’ is unprecedented and unwarranted” according to the opinion. “At its core,” wrote Judge Gerard E. Lynch, lead author of the Court’s opinion, “the approach boils down to the proposition that essentially all telephone records are relevant to essentially all international terrorism investigations.” Meanwhile the application of such a standard equates to “an unprecedented contraction of the privacy expectations of all Americans.”

I recite this text and make the comparison to long-ago postings on this website to make this point: The reasons the NSA program is illegal were evident all along.

To cloak its actions the National Security Agency relied upon hysteria (and incomplete information) to quiet the doubts of Congress and mesmerize its captive judges on the Foreign Intelligence Surveillance Court, all the while hoping that if and when its actions were subjected to a real legal review, vague invocations of “terrorism” and “national security” would get NSA off the hook.

Let’s review the bidding– senior courts have found that the statute the NSA has relied upon to cover its domestic spying does not, in fact, authorize that intrusion. The law which contains Section 215, the specific provision at issue, is set to expire. The NSA–and the government as a whole–are unable to document more than a handful of cases, if that, which were assisted by its billions and trillions of intrusions. Most recently it was revealed that NSA officials themselves were questioning the viability of these programs on sheer cost-effectiveness grounds. Congress has failed abysmally in its oversight role.

But the real burden belongs at Fort Meade and with the NSA. The agency could have spared itself endless angst–not to mention fear of legal jeopardy and plain old-fashioned public ridicule. To repeat, the shaky legal rationale was evident from the beginning. Had the NSA simply said, “sorry, we made a mistake” and dismantled its offending program it would probably have earned some credit. Instead a constant procession of official attempts to justify the unjustifiable has left the agency in the position of dying from a thousand cuts of the knife. To put it another way, NSA is like a polar bear trapped on a rapidly shrinking ice flow that has broken off and drifted into the middle of the ocean.

–And by the way, some of the senators and congressmen who remain in thrall, trying to prolong this travesty, are the same people who tell us there’s no such thing as global warming.

Back on the NSA Watch

March 30, 2015–The wire news service Associated Press is reporting this morning that our spooks of the National Security Agency (NSA) have been, in effect, dishonest as well as disingenuous. Readers of this space–and those who have followed the NSA dragnet eavesdropping controversy–will know that the spy agency defended itself against the Snowden revelations by making a big deal about how important was the dragnet. The spooks indulged in a series of misleading claims about how many terrorism cases had been based on the mass recording of people’s phone connections, how many plots had been broken up due to this information.

The NSA claimed not just that national security had been damaged as a result of the public discovering that the government is watching people 24/7, but also that the United States could not afford to do without this intelligence. This assertion formed the basis not only for the agency’s defense of its illegal and unconstitutional surveillance, against Congress and national-level policy reviews, but of NSA’s appeals to President Obama to permit it to continue the eavesdropping.

Now the Associated Press tells us that months before the Snowden leaks, officials within the NSA themselves proposed to terminate the dragnet surveillance. The recommendation was based on the proposition that the eavesdropping yielded little intelligence of value while requiring substantial dollar outlays to store the data obtained! Attentive readers will notice that NSA officials here were making the identical argument to what many said following the Snowden bombshells, when the National Security Agency openly asserted the opposite–that the surveillance data was invaluable.

There can be no plainer illustration of the arrogance and complete lack of integrity of our intelligence services. The latest report again indicates that our spooks seek to preserve any program they are capable of implementing, not those spy programs that are producing valuable intelligence. This is not “national security,” it is pure posturing–on a level with the CIA’s attempt to keep open the option to resume torture even after the black prisons project had been revealed and President George W. Bush had closed the prisons and sent the detainees along to Guantanamo Bay. The worthlessness of a “strategy” built on a basis like this is palpable.

Legal authority for the dragnet surveillance expires this year along with the sunset of the legislation that created it, let me remind–on the basis of NSA misleading Congress then too. It is time to get rid of this albatross which continues to discredit America’s intelligence community.

The NSA Watch

January 3, 2015–In the first of a series of long-form collections, Prados here reprises his commentaries on the National Security Agency domestic spying and eavesdropping scandal. This selection includes commentaries posted from the end of 2013 through the winter of 2014, a period of time during which the NSA spying was found wanting by courts, presidential reviews, and a public privacy board. President Barack Obama promised reforms. These essays analyze the evolving scandal, providing background on individuals and issues involved in the controversy.

The collection is available as a product for a nominal fee from the “Downloadable” section of this website. It appears under several national security and intelligence categories.

Intelligence Matters: Food for Thought

November 14, 2014–Neglect, even if benign, has never been a good thing. In the intelligence business that’s even more true because the picture changes with such rapidity. But I’ve been focused on other issues of late and I’m sorry. I realized while writing about Fearful Leader Clapper the other day (“Mr. Clapper Goes to Pyongyang,” November 10, 2014) that several hot subjects have gone untreated for some time. Let’s catch up.

NSA Blanket Eavesdropping: Our electronic spooks made a lot of noise about how this form of spying was of no importance (at least that no one ought to be concerned about it) and was fully overseen by Congress and the Courts, then they talked President Obama into a set of cosmetic “reforms” that carry little weight. Then the fresh face at NSA, Admiral Michael Rogers, patiently explained to all and sundry that the issue of the day is cybersecurity–which it is, to judge from the most recent indications of companies and governments hacked and so forth. The legislation that underpins the NSA eavesdropping is up for a vote in this lame duck session of Congress, and the authority may disappear altogether.

But the more tangible development is quite direct, and it is the product of the inevitable market forces the NSA unleashed by its extravagant spying. The tech companies are suing to win the right to protect themselves by informing the public more amply. But more than that, under intense pressure from their international customers and all the rest of us, the producers of all that technology are moving swiftly to demonstrate they are faithful guardians of customer privacy by designing equipment endowed with deep encryption programs. All of a sudden we have a parade of officials–to include Clapper, the FBI director, James B. Comey, and even the head of the British GCHQ, its electronic spy service; horrified that the new-generation devices will prevent spy service access altogether. What did they expect? By far the preferable strategy was to have kept their spying sufficiently within bounds that citizens–and whistleblowers–would have acquiesced on patriotic grounds.

Upheaval on Capitol Hill: Now the spooks are desperate. The next great hope is that the mid-term election result will save their acorns. With the Republican Party taking over the Senate, plus an improved majority in the House of Representatives, maybe the NSA can get the Patriot Act passed after all. Certainly the chairmanship of the Senate Intelligence Committee will change, with Diane Feinstein out and a Republican (possibly Saxby Chambliss) to replace her. Chambliss seems never to have met an intelligence operation he did not like, so that augurs well for the spooks.

The Torture Report: Hopes are especially high on suppressing the CIA torture report done by the Senate intelligence committee. The agency has been pretty good at its stalling so far (notice that we are verging on eighteen months since the CIA was supposed to be reviewing this document for release–and that the scope of release has diminished from the full report to just a fractional portion of it). And, of course, the Republicans were against this Senate investigation in the first place. John Brennan or Jim Clapper might be able to persuade the Senate committee to stop pressing for release of the report.

Denizens of Langley–not to mention Fort Meade– seem to have a hard time learning the lesson that what you do is more important than what you say, or permit to be said about it. Or put differently, that the big, embarrassing things come out no matter what. To stay in front of the story you need to be ready–to explain, justify, demonstrate effectiveness–to the public not to some chief executive in the White House.

It no longer matters whether the CIA can succeed in suppressing the release of the Senate intelligence committee report. Government officials in Poland are now under criminal indictment for cooperating with the CIA in the “black prisons” affair. A United States delegation, at an international forum in Geneva, has acknowledged to an authoritative United Nations panel that the U.S. tortured individuals in the wake of 9/11. Under international law the responsible party (the U.S.) is required to investigate and provide accountability in such instances. American diplomats have described the Senate intelligence committee report as a document that meets this requirement. Presumably such a document cannot then be suppressed. Equally to the point, the American Psychological Association has now approved an internal investigation into how its own mores and responsibilities were observed by psychologists in the CIA torture program. Long story short, these developments guarantee the CIA torture issue will not go away. The secret warriors cannot have their way.

The same thing applies to the NSA eavesdropping. The spooks may succeed in getting Congress to approve the spying, but the market forces that oblige the corporations to spite the spooks function without regard to the politics. If the spooks get Congress to force the corporations to provide watered-down security systems, the American economy will take a worse beating than it already has. Republicans are supposed to be interested in corporations. There is no good way to crack that acorn. Let’s hope for an end to wishful thinking.

Again the Imperial Presidency?

September 9, 2014–In the bad old days of the late Vietnam war there was huge public concern about the runaway presidency– “Imperial Presidency.” The Johnson administration stood on the flimsy Gulf of Tonkin resolution as legal authority for a war. When it was repealed the Nixon administration claimed the war was legal because Congress had voted money for it, and ultimately asserted it waged war for the purpose of recovering American prisoners. As the hoary arguments became more and more arcane–with assertions the SEATO Treaty was somehow a binding pledge to fight, and the Geneva agreements, which the United States itself had violated, gave reason for war with Hanoi. Considerable public policy action followed in the United States Congress–which successively banned the use of budget money for parts of the war, the use of American troops outside of South Vietnam, finally banning war itself, or at least whatever parts of resort to force may be considered constrained by the War Powers Resolution. President Gerald Ford vetoed that bill. It was passed by a two-thirds majority of Congress and became law over his objection.

Those events of the 1970s can be viewed as the high water mark of Congress in its efforts to compel executive branch accountability. In the 80s, when then-congressmen Dick Cheney complained of the emasculated presidency, Ronald Reagan’s minions could, with virtual impunity, conduct a multi-front covert operation right out of the White House.  In the 1990s, in conjunction with the Balkan civil war, Republican lawmakers accused President Bill Clinton of something very similar.

But the executive power of the 80s and the 90s pales next to the assertions of the present era. The worst aspect of the events following 9/11 has been the arrogation of power in the White House, and the extension of that power, in the name of a false “national security,” to every facet of public life, all the while lambasting those who object as somehow unpatriotic.

A prime example of the new arrogance of power is–wait for it!– the NSA dragnet eavesdropping program. (You knew we wouldn’t go too far without bringing that up!) A few days ago the Obama administration declassified and released portions of Justice Department opinions that were compiled in 2004 to certify the legality and constitutionality of the NSA spying on all Americans. Stripped of legal mumbo-jumbo, the rationale in those Justice Department memos reveals the Imperial Presidency back in full force. The memos were then used to convince the Foreign Intelligence Surveillance Court (FISC), the NSA’s private star chamber, to sanction the dragnet. In a handsome display of circular self-justification, the NSA has forever since maintained that FISC’s “independent” opinion amounted to a real judicial review, that FISC and (an ill-informed) Congress were all on-board with the spying, and that the surveillance was fully accountable to all branches of government.

Let’s look at the actual arguments. The Office of Legal Counsel, the Justice branch which does this work, in my opinion has made a good case for why it should be cut back heavily. Time after time in the Bush and Obama administrations, under different chiefs and assorted attorneys-general, this unit has produced legal “analyses” that are little more than rationalizations for things OLC lawyers know government agencies want to do. This was the same unit that produced the notorious Justice Department “torture memos” and, in this case, the eavesdropping opinions take much the same line.

From the standpoint of the Constitution and the law, the problem was that there was a law, on the books for years, that prohibited the very thing which President George W. Bush ordered in October 2001. To square that circle the lawyers went to the Constitution to cite the president’s power as commander-in-chief. They combined that with the 9/11 resolution Congress had passed to assert that Congress had “explicitly” authorized what the NSA was doing. Of course, Congress had done no such thing–and only a handful of people, all of them prohibited from saying anything to anyone else–knew what the NSA was up to. The congressional resolution talked about using “armed force” against Al Qaeda. NSA spying was not a “force” except in the sense that it represents a Pentagon appendage, and eavesdropping on Americans is not Al Qaeda. The lawyers rely upon stretching logic to assert that any act (not an “instrumental” act, but in fact a “desirable” one) required to make use of force is subsumed in the approval of force, even if it is otherwise against the law. Similar sorts of logic were used to disregard the several laws which make torture a crime.

The OLC lawyers put the Constitution above the law, arguing that FISA restrictions that might obstruct a president from carrying out his functions as commander-in-chief are “impermissible.” That logic leads to a different problem, however, in that the Fourth Amendment prohibits unreasonable searches and seizures of exactly the type of the NSA dragnet. Justice lawyers performed a “balancing test” which compared the theoretical value of intelligence gained from eavesdropping (considerable for a real target, but almost worthless in terms of the actual product of the NSA STELLAR WIND program–which they left out of the equation) against the individual’s privacy protection (as weakened by a “well recognized . . . variety of governmental interests–including routine law enforcement and foreign-intelligence gathering.”) to find the latter without merit. This is a complete straw-man argument. Moreover, the Justice lawyers ignored the fact that the FISA law already provided a mechanism (the request for a warrant) to specifically test the competing interests. That was the balancing test the NSA wanted to get rid of.

The Bush administration was very happy with what the lawyers told them they could get away with. They even went to Congress under false pretenses to seek further widening of their surveillance powers. Mr. Obama did not rock the boat. It took the revelations of the Snowden affair to even raise the issue. The absence of a self-correcting mechanism is a plain indicator of a system out of control. End this.

Intelligence Scandals: The Politics of Oversight

March 29, 2014–Today’s news is that Mike Rogers, the Michigan Republican who currently serves as the chairman of the House oversight committee, is going to retire to become a radio talk show host. Rogers cites his frustrations at accomplishing anything in Congress, and believes he can contribute more as a media pundit. Interesting. On a number of levels.

Just to recapitulate: Mike Rogers has driven the House Permanent Select Committee on Intelligence (HPSCI) exactly where he wants it to go. And where he has gone is into the pocket of the intelligence mavens. Rogers, an FBI special agent before he became a congressman, seems never to have met an intelligence project he did not like. Whether it was CIA drones, NSA dragnet eavesdropping, or whatever, Mike Rogers was for it all. He acquiesced in the intelligence community’s purposeful evasion of oversight, its hookwinking of Congress right down to refusal to discuss even the legal basis for drone strikes that target American citizens. Instead he needled intelligence officials to increase their use of drones. At the height of the Snowden revelations Rogers appeared on TV with former NSA/CIA spy chief Michael Hayden to gush about how he would like to throttle the whistleblower. Where, over in the Senate, Dianne Feinstein has finally rebelled under the weight of the spies’ excesses (see “Senator Feinstein Comes out of the Closet,” March 11, 2014), at HPSCI Mike Rogers made sure his committee made no investigation at all of the CIA’s hostile interrogation techniques.

Moreover Rogers has operated in a permissive environment. With an ironclad majority in the House, HPSCI-sponsored legislation was assured of passage. Only a less-permissive Senate stood in the way of Rogers’s pet projects becoming law. Until Snowden that is. In the Republican-dominated House last summer, congressmen outraged at the NSA dragnet came within a handful of votes of defunding the National Security Agency. James Sensenbrenner, the man who wrote the provision the NSA has used to justify its dragnet, has disavowed his legislation and wants to repeal it.

Now Mike Rogers is frustrated because he can’t accomplish anything. Kind of like the kid at the schoolyard who, failing to win his dispute over interference with the last shot, picks up his marbles and heads home.

This would be amusing except that it is calculated. As it happens, the provision Jim Sensenbrenner authored, whether or not it is repealed, is scheduled to expire next year unless it is renewed. A whole lot of politics is going to revolve around that fight. Senate passage will be dicey. The House is no longer a done deal. The high tech corporations, stung by the effect of the NSA dragnet on their bottom lines and international sales, are quite likely to lobby against the program with which they have been working for years. Public pressure will be important. My guess is that Mike Rogers calculates he can help mobilize the public to demand the extension of the intrusive eavesdropping. Mike Rogers can “save” the NSA dragnet. Now that would be an accomplishment!