ATTEMPTING TO BALANCE NSA INTEL WITH AMERICAN CIVIL LIBERTIES

 Photograph: J Scott Applewhite/AP
James Clapper, the director of national intelligence, has now admitted he gave the "least untruthful" answer to a direct question in March about the extent of surveillance on US citizens. The admission sets up a critical test of Clapper's relationship with the congressional committees that oversee him – committees the Obama administration is relying on for its defense of the surveillance efforts.
The Obama team is expressing support for Clapper as criticism of him mounts. "The president has full faith in director Clapper and his leadership of the intelligence community," ...At least one member of Congress is calling for Clapper's head. On his Facebook page, Justin Amash, a Michigan Republican, wrote that Clapper "lied under oath" to Congress.

GREG SARGENT, WASHINGTON POST

Most columnists, editorialists and civil liberties organizations agree at this point that the revelations about the NSA gathering of phone records and internet info are deeply troubling — either in terms of the overreach of the programs, or the secrecy shrouding them, or both.
But what can be done about it in policy terms? Is there a way to continue giving the government the surveillance tools it says it needs to ensure national security, even as we do a better job safeguarding Americans’ civil liberties?
As it turns out, the answer may be Yes. What isn’t getting the attention it deserves is that civil libertarians are not calling for a complete end to the surveillance the government says it needs to continue exercising. They are simply calling for a narrowing of it — one that would better balance the need to protect the American people with the need to guard Americans’ right to privacy.
Here, with the help of Michelle Richardson, legislative counsel for the ACLU, are steps that could be taken to mitigate current government overreach:

Narrow the scope of the relevant statute. This isn’t likely to happen, because it would require an act of Congress, and many members of Congress have staunchly defended the current NSA programs. But narrowing the statute is probably the only way current NSA overreach can be reined in, Richardson tells me. What would that entail?
The gathering of phone records is the result of the government’s interpretation of section 215 of the Patriot Act, which expanded the government’s ability to collect records while lowering the standard required to allow it, in ways civil libertarians believe violates the 4th Amendment. This statute could be narrowed by moving to what Richardson calls a “suspicion-based” standard. Under this standard, the government could not do a massive open-ended dragnet compilation of phone records. Instead, it could get a court’s permission to gather the phone records, i.e., the meta-data, of someone reasonably suspected of being a terrorist or spy — or someone who has been contacted by one of those people, Richardson argues. Info could be gathered on a group of people suspected of those activities, or even on a suspected entity (such as a building out of which terrorists or spies are suspected of operating).

Under this standard, the government could continue collecting the phone records even of Americans not suspected of anything, since such a search would result in the gathering of records on everyone the suspects were contacted by, including innocents. But that search could only be initiated by a reasonable suspicion about a particular person, group, or entity. This would balance national security with a more reasonable — but not perfect — defense of Americans’ privacy rights.
As for true emergency situations, Richardson says, the government’s ability to get emergency orders from the FISA court could be maintained, even amid a statutory fix.

Bring more transparency to the current programs. Ron Fournier writes: “Tell us what our government is doing, and why.” Is this possible? To some degree, yes. Barring the above statutory change, the government could bring more transparency right now to the programs that are currently operating. For instance, Richardson notes, we know phone records are currently being gathered in a data-base? What about, say, emails and financial records? How broad is the program, anyway?
The Director of National Intelligence has clarified that the government does not have the power to listen in on calls or monitor content of communications. However, Richardson notes, the government could be more forthcoming about the guidelines that determine whether it is able to look at meta-data of Americans not suspected of anything. What is done with all of this information, and what dictates how or whether it is accessed?
Key questions remain about the scope and inner workings of this program. The administration — and members of Congress — have said more disclosure could imperil their effectiveness by tipping off would-be terrorists. But as Richardson notes, they are likely proceeding from the assumption that they are being subjected to extensive surveillance already, so that excuse rings hollow. “The 9/11 plotters communicated in code,” Richard says.
Also: The FISA court decisions granting government surveillance authority should be disclosed, with appropriate redactions. “The bottom line is there shouldn’t be secret law,” Richardson concludes.
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To be sure, national security experts might quarrel with the civil libertarian argument that these principles can be safeguarded without compromising security. And far too little is known about how these programs work to be sure about how — or whether — a proper balance can be achieved. But the basic fact that needs to be understood is that civil libertarians are not calling for an end to surveillance. They just want us to at least make a serious effort to get that balance right. Which Obama himself has articulated as a goal, at least in theory.

GEORGE W. OBAMA

THE GUARDIAN

The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America's largest telecoms providers, under a top secret court order issued in April.
The order, a copy of which has been obtained by the Guardian, requires Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.
The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.
The secret Foreign Intelligence Surveillance Court (Fisa) granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19.
Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.
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Under the Bush administration, officials in security agencies had disclosed to reporters the large-scale collection of call records data by the NSA, but this is the first time significant and top-secret documents have revealed the continuation of the practice on a massive scale under President Obama.
The unlimited nature of the records being handed over to the NSA is extremely unusual. Fisa court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.
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The information is classed as "metadata", or transactional information, rather than communications, and so does not require individual warrants to access....While the order itself does not include either the contents of messages or the personal information of the subscriber of any particular cell number, its collection would allow the NSA to build easily a comprehensive picture of who any individual contacted, how and when, and possibly from where, retrospectively.


Big Brother is listening to you.

HUFFINGTON POST

The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio, video, photographs, e-mails, documents and connection logs that enable analysts to track a person’s movements and contacts over time.
The highly classified program, code-named PRISM, has not been disclosed publicly before. Its establishment in 2007 and six years of exponential growth took place beneath the surface of a roiling debate over the boundaries of surveillance and privacy. Even late last year, when critics of the foreign intelligence statute argued for changes, the only members of Congress who know about PRISM were bound by oaths of office to hold their tongues.



N.Y. TIMES

.... Together, the unfolding revelations opened a window into the growth of government surveillance that began under the Bush administration after the terrorist attacks of Sept. 11, 2001, and has clearly been embraced and even expanded under the Obama administration.

Government officials defended the two surveillance initiatives as authorized under law, known to Congress and necessary to guard the country against terrorist threats. But an array of civil liberties advocates and libertarian conservatives said the disclosures provided the most detailed confirmation yet of what has been long suspected about what the critics call an alarming and ever-widening surveillance state.

The Internet surveillance program collects data from online providers including e-mail, chat services, videos, photos, stored data, file transfers, video conferencing and log-ins, according to classified documents obtained and posted by The Washington Post and then The Guardian on Thursday afternoon.

In confirming its existence, officials said that the program, called Prism, is authorized under a foreign intelligence law that was recently renewed by Congress, and maintained that it minimizes the collection and retention of information “incidentally acquired” about Americans and permanent residents. Several of the Internet companies said they did not allow the government open-ended access to their servers but complied with specific lawful requests for information.

“It cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States,” James Clapper, the director of national intelligence, said in a statement, describing the law underlying the program. “Information collected under this program is among the most important and valuable intelligence information we collect, and is used to protect our nation from a wide variety of threats.”

The Prism program grew out of the National Security Agency’s desire several years ago to begin addressing the agency’s need to keep up with the explosive growth of social media, according to people familiar with the matter.

The dual revelations, in rapid succession, also suggested that someone with access to high-level intelligence secrets had decided to unveil them in the midst of furor over leak investigations. Both were reported by The Guardian, while The Post, relying upon the same presentation, almost simultaneously reported the Internet company tapping. The Post said a disenchanted intelligence official provided it with the documents to expose government overreach.

Before the disclosure of the Internet company surveillance program on Thursday, the White House and Congressional leaders defended the phone program, saying it was legal and necessary to protect national security.

But while the administration and lawmakers who supported the telephone records program emphasized that all three branches of government had signed off on it, Anthony Romero of the American Civil Liberties Union denounced the surveillance as an infringement of fundamental individual liberties, no matter how many parts of the government approved of it.

“A pox on all the three houses of government,” Mr. Romero said. “On Congress, for legislating such powers, on the FISA court for being such a paper tiger and rubber stamp, and on the Obama administration for not being true to its values.”

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On Thursday, Senators Dianne Feinstein of California and Saxby Chambliss of Georgia, [above pic of them] the top Democrat and top Republican on the Intelligence Committee, said the court order appeared to be a routine reauthorization as part of a broader program that lawmakers have long known about and supported.

“As far as I know, this is an exact three-month renewal of what has been the case for the past seven years,” Ms. Feinstein said, adding that it was carried out by the Foreign Intelligence Surveillance Court “under the business records section of the Patriot Act.”

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The Internet company program appeared to involve eavesdropping on the contents of communications of foreigners. The senior administration official said its legal basis was the so-called FISA Amendments Act, a 2008 law that allows the government to obtain an order from a national security court to conduct blanket surveillance of foreigners abroad without individualized warrants even if the interception takes place on American soil.

The law, which Congress reauthorized in late 2012, is controversial in part because Americans’ e-mails and phone calls can be swept into the database without an individualized court order when they communicate with people overseas....

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Section 215 is among the sections of the Patriot Act that have periodically come up for renewal. Since around 2009, a handful of Democratic senators briefed on the program — including Ron Wyden of Oregon — have sought to tighten that standard to require a specific nexus to terrorism before someone’s records could be obtained, while warning that the statute was being interpreted in an alarming way that they could not detail because it was classified.

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But just as efforts by Mr. Wyden and fellow skeptics, including Senators Richard J. Durbin of Illinois and Mark Udall of Colorado, to tighten standards on whose communications logs could be obtained under the Patriot Act have repeatedly failed, their criticism was engulfed in a clamor of broad, bipartisan support for the program.

“If we don’t do it,” said Senator Lindsey Graham, Republican of South Carolina, “we’re crazy.”

 

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Glenn Greenwald currently writes for The Guardian.

 

N.Y. TIMES

 

After writing intensely, even obsessively, for years about government surveillance and the prosecution of journalists, Glenn Greenwald has suddenly put himself directly at the intersection of those two issues, and perhaps in the cross hairs of federal prosecutors.

Late Wednesday, Mr. Greenwald, a lawyer and longtime blogger, published an article in the British newspaper The Guardian about the existence of a top-secret court order allowing the National Security Agency to monitor millions of telephone logs. The article, which included a link to the order, is expected to attract an investigation from the Justice Department, which has aggressively pursued leakers.

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“The N.S.A. is kind of the crown jewel in government secrecy. I expect them to react even more extremely,” Mr. Greenwald said in a telephone interview. He said that he had been advised by lawyer friends that “he should be worried,” but he had decided that “what I am doing is exactly what the Constitution is about and I am not worried about it.”

 

Being at the center of a debate is a comfortable place for Mr. Greenwald, 46, who came to mainstream journalism through his own blog, which he started in 2005. Before that he was a lawyer, including working 18 months at the high-powered New York firm Wachtell, Lipton, Rosen & Katz, where he represented large corporate clients.

“I approach my journalism as a litigator,” he said. “People say things, you assume they are lying, and dig for documents to prove it.”

Mr. Greenwald’s writings at The Guardian — and before that, for Salon and on his own blog — can resemble a legal brief, with a list of points, extended arguments and detailed references and links. As Andrew Sullivan, a frequent sparring partner and sometime ally, put it, “once you get into a debate with him, it can be hard to get the last word.”

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.... Because he has often argued in defense of Bradley Manning, the army private who was charged as the WikiLeaks source, he said he considered publishing the story on his own, and not for The Guardian, to assert that the protections owed a journalist should not require the imprimatur of an established publisher.

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Mr. Greenwald grew up in Lauderdale Lakes, Fla., feeling like an odd figure. “I do think political posture is driven by your personality, your relationship with authority, how comfortable are you in your life,” he said. “When you grow up gay, you are not part of the system, it forces you to evaluate: ‘Is it me, or is the system bad?’ ”

By the time Mr. Greenwald was studying law at New York University, “he was always passionate about constitutional issues and issues of equal justice and equal treatment,” said Jennifer Bailey, now an immigration lawyer with a nonprofit organization in Maine, who shared a tiny apartment with Mr. Greenwald in the early 1990s.

She emphasized that his passion did not translate into partisanship. “He is not a categorizeable guy,” Ms. Bailey said. “He was not someone who played party politics. He was very deep into the issues and how it must come out. He was tireless and relentless about pursuing this. Nobody worked longer hours.”

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Gabriel Schoenfeld, a national security expert and senior fellow at the Hudson Institute who is often on the opposite ends of issues from Mr. Greenwald, called him, “a highly professional apologist for any kind of anti-Americanism no matter how extreme.”

Mr. Sullivan wrote in an e-mail: “I think he has little grip on what it actually means to govern a country or run a war. He’s a purist in a way that, in my view, constrains the sophistication of his work.” ...