Spooks Gone Wild !!

October 29, 2016–By now you would have to be an ostrich out in the Australian outback with her head in the sand not to have heard the latest blast from the Federal Bureau of Investigation–the FBI is re-opening the Hillary Clinton email case on the strength of unspecified, mysterious, material allegedly found on laptop computers shared by Clinton aide Huma Abedin and her separated husband, Anthony Weiner. This requires comment, both in particular and from a broad perspective. Sadly, my house requires upkeep and painting, and I’ve not been able to spare the time the latest horror deserves, but let me put in a few words now. My guess is this story continues to spiral out of control and will be there for further comment in coming days, even weeks.

First of all, the Bureau was investigating Anthony Weiner, not Hillary at all. Of course, it was inevitable, in these last days of a presidential election, where the underdog has been desperately trying to use the Clinton email secrecy issue as a claw to recover lost ground, that a blow struck at Weiner/Abedin would reverberate as a shakedown of Clinton. The Trump campaign is taking it precisely that way. If FBI director James B. Comey thought it would be taken any other way he is foolish–and no one thinks that of him.

So, why this? Why now? Director Comey has been under strong fire from Republicans for, supposedly, shielding Clinton in the original investigation, which found the issue did not merit additional investigation. To revive the investigation might get the FBI a little credit, and at this time in a critical political campaign, a lot of ground with Republicans. The timing is doubtless partly due to this, partly due to the discovery on computer drives seized from Weiner of the Abedin/Clinton material. Comey probably calculated that if he delayed action, that fact was sure to leak, adding to FBI’s political problems. Unfortunately by the action he took, Comey buys into an even bigger problem.

I’ll return to the specifics of the secrecy investigation in a moment, but first a crucial point absolutely needs making: the “October Surprise” revival of the Clinton email investigation absolutely insures that, whoever wins the election, it will be followed by a purge of the intelligence community. Ms Clinton will be furious at the way FBI handled this matter. Comey’s tenure at the Bureau expires in the middle of the next president’s presumptive second term and you can be certain he’ll be unable to protect anyone the White House decides to go after. Comey himself will be frozen out of the halls of glory. If Donald Trump becomes the next president, he will purge because he’ll know that whoever fixed the cards against Hillary can tell that story on him, representing an incredible political danger. Plus, the unnamed culprits could do the same to the Donald, so they must be stamped out.

Yet I say purge of the whole intelligence “community.” That is the entity of sixteen agencies (or however many there are today) under their Fearful Leader, General James Clapper. In Spanish there is a slang word, flojo, literal meaning “flimsy” but used for pathetic weakness. Clapper’s “leadership” falls in that category. Running around with his hair on fire about North Korean missile tests and ISIS militants under every rug, Fearful Leader first casts our own intelligence officers as the greatest danger to American national security, and then he stands aside while James Comey takes an action that undoubtedly does affect national security. Obama was wrong not to get rid of Clapper when Fearful Leader escalated the NSA blanket surveillance scandal by perjuring himself before Congress. Now Clapper has been ineffectual in the face of an FBI action that may derail the prospects of Obama’s favored successor. Add to that that Clapper is unable to energize the CIA to do anything useful in the real ISIS war, in Syria, and you have an intelligence mess across the board.

There’s more painting to do and I have to go. But before I leave, a few words about the actual stimulus here. Director Comey does not know there’s any problem here. He supposes that because the computer was, in part, used by Huma Abedin, it may contain some of the same emails that have figured in the controversy over the Clinton emails and their classification status. Even if so, where’s the beef? For there to be a secrecy issue at all, Hillary Clinton needs to have sent emails with secret information from the Abedin/Weiner computer to another link that was not secure. Message traffic that is retrospectively graded secret does not count. Messages that copied Abedin at this address along with sending to her at other places (ever done that?) do not count. Messages that Abedin sent Hillary do not count. Messages that were mistakenly addressed do not count.

Readers of this space will know I have said repeatedly that the email controversy shows that the security regulations need to change once the system becomes so awkward a senior official cannot function without breaking the regs. This business of the alleged security violation over a secondary computer shows exactly what I mean. It becomes impossible to conduct the business of government this way. The system needs to change.

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.

 

NSA: Goodbye to All That

November 30, 2015–So here we are, on the cusp of the demise of the National Security Agency’s blanket eavesdropping. At midnight tonight the most recent federal law takes effect. The phone companies, not the NSA, will now hold on to your telephony data, with the spooks only able to access it by warrant.

Of course, the changes are primarily cosmetic. The security services can still call up your data. The most significant changes are three: the phone companies will not preserve the data as long as the NSA was doing; the spooks are enjoined from going beyond two “jumps” in seeing who’s talking to whom; and, without direct possession of the database, the spooks will no longer be able to play different association games at a whim.

We’ll see how this plays out.

Already–as you’ll have read here–our top spies are exploiting the Paris attacks to assert, without furnishing any concrete evidence to that effect, that rules are tying their hands. In previous posts I’ve asked the question of whom they think they’re working for. Let me add here that our fearless (fearful?) leaders also seem to have forgotten that rulemaking is standard in a democracy, and following the rules must be the essence of the operation of a spy agency in a democratic nation. If we discover later on–most likely through a whistleblower–that our spooks have conspired to recreate their database by means of “strategic” subpoenas designed to get hands on slices of the database that can then be melded together, we will know a conspiracy took place to evade the new restrictions, paltry though they may be. Stay tuned.

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.

 

Spooky Lawyer Still Peddling —-

September 10,2015–Better late than never. While running down a remark by our top spook, Fearful Leader Clapper, this morning, I ran right into his senior shyster, the ever-entertaining Robert S. Litt. I missed this when it happened back in May but the message of unreconstructed arrogance is important enough to bring to you today.

As general counsel to the Director of National Intelligence (Clapper), Mr. Litt furnishes advice on all manner of DNI actions, from new directives to the intelligence community to prepping his boss for congressional hearings.

You will recall that two years ago Fearful Leader was caught in a lie before the Senate intelligence committee when he testified under oath that the National Security Agency had no program under which it spied on hundreds of millions of Americans. That Clapper was under oath made the lie perjury. The failure to require Clapper’s resignation for misinforming Congress became another of President Obama’s favors to his spies, but that’s another story. This one is about Bob Litt.

General Clapper actually was more forthcoming than his lawyer. Clapper told reporters that he had tried to answer the question in a way that would be the least damaging for the spy agencies he commands. That represented accepting a measure of responsibility. But Mr. Litt stepped up to insist that DNI Clapper was innocent because he had forgotten about the NSA dragnet surveillance program. Litt compounded that performance, sending letters to the editor of the Washington Post, New York Times, and New Yorker magazine insisting on that construction of events. Fast forward eighteen months. This May, at a panel discussion hosted by the Advisory Committee on Transparency, Robert Litt repeated this preposterous story. At the time he was sitting right next to lawyer F. A. O. Schwarz, who had served as chief counsel to the Church Committee when it investigated the intelligence agencies in the 1970s. It was the secrecy queen and the apostle of openness together at last.

The story from Mr. Litt’s point of view is actually worse than that quick summary. Litt was preparing Clapper for the hearing. He knew that Senator Ron Wyden would be asking General Clapper about the dragnet surveillance–the senator observed protocol and informed the DNI of what he’d be asking. If Clapper forgot Litt’s job was to remind him. If Clapper confused the Section 715 eavesdropping with the Section 702 spookery, correcting that was Litt’s job too. Plus Law School 101 surely teaches that the commission of an act is not excused by innocently thinking something else. Worse, after the perjured testimony Clapper was offered the opportunity to correct it–and there again Litt’s job would have been to alert his boss to the danger and get Clapper to insert a correction. That didn’t happen either.

Now Mr. Litt is sorry. Of a correction letter he says, “I wish we had done that at the time.”

Robert S. Litt is the principal compiler of the ODNI’s chronology of intelligence appreciations and activities in respect to the September 2012 attack on the U.S. consulate in Benghazi, Libya. What should we believe about that?

 

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.

Tantrum to Practical: All Grandfathers are not Equal

June 1, 2015–As we enjoy this brief moment while Big Brother is a criminal for spying on you, we also need to move on the next stage of this foolish security nightmare. Last week, in the run up to the crash of Obama’s misguided attempt to resuscitate the eavesdropping law the White House, ending with Barack himself, put out way overblown claims (as seems to have become de rigeur) for the necessity for this domestic spying–which can be linked to only one case since 2001, and that for merely giving money to a Somali group. Others late in the week, to include Fearful Leader Clapper, the DNI; and John O. Brennan, guardian of the torture report; mixed in their own rhetoric. On May 25 I wrote of this as NSA’s tantrum (“Toddler’s Grandfather: NSA’s Terrible Twos Tantrum”) because senior officials had begun to go around saying that even if their legal authority expired the NSA could go on spying on everybody because the authority is “grandfathered” into law.

Well, now we have entered that unhappy state of entropy and it’s time to determine what, exactly, “grandfather” means. I am no lawyer, but I am a pretty fair wordsmith and I’m here to say the NSA’s trying to eat its cake after having it too. If they can go ahead spying just because, once upon a time, the authority existed (even though now it doesn’t), that’s way out of bounds. By that measure prohibition still exists because once it did. The death penalty remains in effect everywhere it has been repealed. Eighteen-year olds and women cannot vote because once they could not. The people who are trying to end abortion by passing legislation can forget it because that procedure was previously legal. Those who want controls on guns, same thing. Forget trying to enact EPA pollution standards. The Vietnam war is still with us because the repeal of the Tonkin Gulf resolution is meaningless.

That kind of approach effectively guts the power of law except for the first law on any given thing. This cannot be the meaning of law under the United States Constitution, nor the intention of the Founding Fathers.

A “grandfather clause” has to have some concrete current application in order to be valid. For example, my apartment goes co-op so I am in at the insider price, grandfathered so that cannot be denied to me.  With respect to NSA eavesdropping a proper concrete context would be specific investigations that were approved and in progress as of 12:01 AM on June 1.

As I understand it, our frantic eavesdroppers are now saying that “enterprise” programs are concrete contexts and therefore grandfathered in. This kind of investigation is a broad, open-ended, multi-directional inquiry, as in the phrase “we investigate terrorists.” The enterprise investigation bears the same relation to NSA surveillance as “signature strikes” do to the CIA/JSOC drone war. It’s what you do with surplus capacity that has nowhere else to go.  It’s a background tone for the sound system. This has nothing to do with concrete and pre-approved investigations.

That’s not all. In fact the blanket authorities timed out before June 1. The Foreign Intelligence Surveillance Court had set a specific deadline for NSA to apply for the next 90-day authorization of its blanket programs. The spooks did not meet the filing deadline. The authorization duly expired.

At 12:01 AM on June 1 there was no enterprise program to be grandfathered.

As has been noted in this space before, we seem to have entered a new Wilderness of Mirrors. National security is becoming the single greatest threat to democracy.

 

Barack Joins in the Tantrum

May 30, 2015–Here it is, about thirty-six hours and counting until the legal authority for several Big Brother eavesdropping activities evaporates, and now President Obama joins the fray. Does he, constitutional lawyer that he is, stand against such draconian measures, surveillance that violates the Fourth Amendment and chills the First? Does he follow the lines of the surveillance reforms he offered in a speech in January 2014? No, and yes.

I’ve written in this space before about Mr. Obama going out on a limb with his senior spooks, drinking their Kool-Aid on warrantless eavesdropping and collection against all citizens which has never yet stopped a real terrorist action. I also wrote, after the January 2014 speech, that Obama’s reforms were mostly designed to make the surveillance palatable to Americans. Here Mr. Obama has simply lined up with the security hacks–and they have become hacks–now lacking imagination or creativity, relying excessively on old ways simply because they are familiar. The hacks are throwing a tantrum (see “Toddler’s Grandfather: NSA’s Terrible Twos Tantrum,” May 25, 2015). Barack is joining them.

What the president said yesterday bears quotation: “Heaven forbid we’ve got a problem where we could have prevented a terrorist attack or apprehended someone who was engaged in dangerous activity, but we didn’t do so simply because of inaction in the Senate.” Unpack that language and you find that this is security for show, political cover. We should surveille all Americans using methods that have never been effective so that, after the next terrorist attack, we can say the bad guys could not have been apprehended with these methods ’cause we had that covered. (Of course, we can’t make that showing without the very kind of public investigation the spooks will fight tooth and nail, so what’s the point?)

Alternatively, Obama says we need this to “apprehend someone who was engaged in dangerous activity.” What is that? A door so big you can drive a truck through it. It was Ronald Reagan who said that “one man’s terrorist is another man’s freedom fighter,” and he was happy to paint black hats on those he didn’t like while pretending that vicious CIA-supported rebels–in fact the very islamist fundamentalist fighters whom we now consider the terrorist enemy– were echoes of our own Founding Fathers. “Dangerous activity” is in the eye of the beholder, and it is an invitation to even more arbitrary actions. Who’s to say what activity is dangerous? Security for show invites the arbitrary application of police power in ambiguous situations. Think of any of the police violence incidents we have been plagued now for months.

Sometimes Senate inaction can be a good thing. Let’s just let these harmful statutes expire. Write your senator and say so!

The Church Committee at 40

May 29, 2015– It has been four decades since the “Year of Intelligence,” 1975, when United States intelligence agencies were investigated in depth by a presidential blue ribbon panel (the Rockefeller Commission), the Senate’s predecessors to today’s oversight unit (the Church Committee) and a House of Representatives investigative panel (the Pike Committee). Nothing like this has happened since. The work of the Church Committee has been the most lasting. Denizens of the secret world mostly recognize that investigation, where, increasingly, even they profess not to have heard of the others. After four decades what is there to remember?

A lot, according to former members of the committee, who assembled in Washington yesterday under the auspices of the Brennan Center for Justice of New York University. Heading the group was Walter F. Mondale, who went from his experience with Church to become the 42nd Vice-President of the United States; and former U.S. Senator Gary Hart, another member of the committee, along with its chief counsel, Frederick A. O. Schwarz, Jr. Also on the podium was Loch K. Johnson, a Church committee staffer. A variety of other members of the committee staff were in the audience. The event proved a combination of reunion and clarion call.

The Church Committee investigation has been mentioned many times in this space and it was instructive to see that members and staff have watched recent developments in U.S. security policy with increasing concern. Vice-President Mondale says that he is a strong supporter of President Barack Obama and admires him very much, but that what Obama has done with U.S. intelligence has been disastrous. The government’s excessive reliance on legal arguments hinged upon so-called “state secrets” is deplorable. The Foreign Intelligence Surveillance Court (FISC)–which the Church Committee was instrumental in the creation of–has gone far beyond its intended role as a magistrate to become a court of general jurisdiction. Now in competition with other federal courts, and serving the intelligence agencies as their secret, special court with no outside interference, the FISC has become a runaway locomotive.

Senator Hart commented that the historical question is why no inquiry like that of the Church Committee had previously been carried out. “It was a hugely disillusioning experience,” he remarked. “There were dark sewers beneath the city on the hill” And the committee had to fight for every scrap of evidence the intelligence agencies eventually allowed them to see.

Outside the formal sessions Church committee veterans to a man (no women staff were at the event unfortunately) were appalled at the breakdown of legislative oversight of U.S. intelligence that has since occurred.

Under the rubric of strengthening intelligence oversight, eighteen of the Church committee veterans, including both Mondale and Hart, signed on to a Brennan Center policy paper that envisions using the Church committee experience as a model for a new investigation of the U.S. intelligence agencies. Their idea is similar to, although less comprehensive than, the inquiry I laid out in my book The Family Jewels and fleshed out in the paperback edition of that work.

It is increasingly clear that public concern over the excesses of our security services is growing. In my view the intelligence agencies actually have a great deal to gain from a new-type Church committee which examines their activities and is then able to reform them and to  pronounce them above board.