The surveillance state comes apart at the seams

While we’re understandably preoccupied with the astonishing spectacle of ObamaCare’s collapse, there are some other strange things going on in Washington.  The past few weeks have seen a number of dismaying developments in the story that riveted America before HealthCareDotGov blew up on the launch pad: NSA surveillance.  In a rapid series of events, the legal and practical justifications for the surveillance state have fallen apart.

The White House set up a review panel that was widely expected to whitewash claims from the other parts of the White House, but instead everything faded to black.  As related by NBC News, panelists openly expressed their surprise at what they found:

???It was, ???Huh, hello? What are we doing here??????? said Geoffrey Stone, a University of Chicago law professor, in an interview with NBC News. ???The results were very thin.???

While Stone said the mass collection of telephone call records was a ???logical program??? from the NSA???s perspective, one question the White House panel was seeking to answer was whether it had actually stopped ???any [terror attacks] that might have been really big.???

???We found none,??? said Stone.

Under the NSA program, first revealed by ex-contractor Edward Snowden, the agency collects in bulk the records of the time and duration of phone calls made by persons inside the United States.

Stone was one of five members of the White House review panel ??? and the only one without any intelligence community experience ??? that this week produced a sweeping report recommending that the NSA???s collection of phone call records be terminated to protect Americans??? privacy rights.

The panel made that recommendation after concluding that the program was ???not essential in preventing attacks.???

???That was stunning. That was the ballgame,??? said one congressional intelligence official, who asked not to be publicly identified. ???It flies in the face of everything that they have tossed at us.???

Stone hastened to add he was no fan of Edward Snowden’s pilfering of classified data:

???My emphatic view,” he said, “is that a person who has access to classified information — the revelation of which could damage national security — should never take it upon himself to reveal that information.???

Stone added, however, that he would not necessarily reject granting an  amnesty to Snowden in exchange for the return of all his documents, as was recently suggested by a top NSA official. ???It???s a hostage situation,??? said Stone. Deciding whether to negotiate with him to get all his documents back was a ???pragmatic judgment. I see no principled reason not to do that.???

Wonderful.  Ironically, this is the same Administration that loves to describe its domestic political opponents as “hostage takers.”

What the panel findings are “flying in the face of” are repeated claims by President Obama that “lives have been saved” by these surveillance programs, which he said were responsible for averting “at least fifty threats.”  That turns out to be – brace yourself – a lie, because the panel found there was not a single incident in which “NSA could say with confidence that the outcome would have been any different.”

This is more than just another scene from Barack Obama’s long and tortured relationship with the truth, because a judge brought up the same lack of results when declaring the NSA data-collection program unconstitutional.  CNN details the rather stern decision of U.S. District Judge Richard Leon:

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval,” said Leon, an appointee of President George W. Bush. “Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment.”

Leon’s ruling said the “plaintiffs in this case have also shown a strong likelihood of success on the merits of a Fourth Amendment claim,” adding “as such, they too have adequately demonstrated irreparable injury.”

He rejected the government’s argument that a 1979 Maryland case provided precedent for the constitutionality of collecting phone metadata, noting that public use of telephones had increased dramatically in the past three decades.

Leon also noted that the government “does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature.”

The Administration plans to appeal the ruling.  Recognizing “the significant national security interests at stake in this case and the novelty of the Constitutional issues,” Judge Leon withheld action on his ruling until the government’s appeal has been resolved.

The legal issues in this case parallel the popular debate over these bulk surveillance programs: Are they really necessary?  Is proper care being taken to ensure they don’t get out of hand?  There is a broad level of public sympathy for using fairly extreme measures in the pursuit of suspected terrorists, but that’s a lot different than casting surveillance nets over just about everyone.  The argument that such indiscriminate tactics are necessary in the fast-moving world of Information Age asymmetrical warfare is hard to make when nobody can produce a solid example of success.

It’s also interesting to note Judge Leon’s mention of how much our lives have changed over the past generation.  Our relationship to information technology is vastly different now.  We carry incredibly advanced computers in our pockets, and they’re always online, constantly moving data that can be used to monitor our activities.  It’s an environment wholly different from just a few decades ago, when the average person only made a couple of phone calls a day, and was otherwise largely “off the grid.”  Concepts of privacy from 1983, or even 1993, have become obsolete.

It’s not surprising that intelligence officers see opportunities to enhance national security in this new world.  It’s also not surprising that it makes people nervous, especially since we also happen to live in a hyper-legalized environment where almost all of us are technically guilty of breaking some law or other on a regular basis.  Who knows what uses today’s seemingly innocuous metadata might be put to by adventurous agents in the future… especially given the equally troubling trend toward the abuse of government power for political purposes?

Monitoring international communications is still said to be effective by the White House panel – “the record is very impressive” for such intercepts according to Professor Stone, who said there is “no doubt the nation is safer and spared potential attacks because of them.”  Of course, those aren’t the intercepts American citizens are really worried about, although there have been a few international embarrassments recently.

Despite all their unease about the NSA programs, and surprise at how the claims of effectiveness used to justify them turned out to be false, the White House panel recommended leaving the programs in place, but with more accountability and tighter controls.  Accountability was very much on the minds of House Republicans when they asked Attorney General Eric Holder to investigate national intelligence director James Clapper for lying to Congress about the extent of NSA surveillance programs, as reported by the Washington Examiner:

???Congressional oversight depends on truthful testimony ??? witnesses cannot be allowed to lie to Congress,” several members of the House Judiciary Committee wrote in a letter to Holder. The letter is signed by Rep. Jim Sensenbrenner, R-Wis., who introduced the Patriot Act, House Oversight and Government Reform Committee Chairman Darrell Issa, R-Calif., Rep. Trent Franks, R-Ariz., Rep. Ted Poe, R-Texas, Rep. Trey Gowdy, R-S.C., Rep. Raul Labrador, R-Idaho, and Rep. Blake Farenthold, R-Texas.

“Accordingly, we request you investigate Director of National Intelligence James Clapper???s ???erroneous??? statements to the Senate Select Committee on Intelligence earlier this year.???

The letter notes that Ronald Reagan’s former National Security Advisor John Poindexter went to jail for lying to Congress, among others who lied to Congress.

Yes, kids, there was a time when lying to Congress was actually treated as a crime.  It seems kind of mind-blowing now, doesn’t it?  Obama Administration officials do it on a fairly regular basis; it’s easier to list the parts of ObamaCare-related testimony that weren’t deliberately misleading.  The past is a strange and distant land.

Clapper told Sen. Ron Wyden, D-Ore., that the NSA did not collect any bulk data on millions of Americans, despite the existence of the phone records surveillance program.

“Senator Wyden had warned Director Clapper prior to the hearing that he would ask the question,” the letter states. “Following the hearing, Wyden privately offered Clapper the opportunity to correct the record. Clapper declined.”

Clapper said later that he answered in the “least untruthful” way that he could. “And certainly if any member, whether on the Intelligence Committee or the Judiciary Committee or any other committee would — who had asked for specific briefing or follow-up questions, we certainly would — would’ve responded,” Clapper told NBC’s Andrea Mitchell.

So oversight is now basically a big game of liar’s poker, in which Administration officials might be willing to admit the truth if they’re summoned to the necessary series of follow-up meetings.  Maybe the third time Congress asks a question, they’ll get an honest answer… or maybe the fourth.  You just never know.

I don’t suppose anyone has high hopes for Attorney General Holder – among the most politicized Attorney Generals in history – to start hauling his Administration associates off to the hoosegow for protecting regime secrets from those dratted congressional Republicans with their pesky questions.

While we wait for the case Judge Leon ruled upon to make its way through appeals – and quite possibly end up at the Supreme Court – the Washington Post judges that official defenses of the NSA’s phone surveillance program “may be unraveling.”

The president is ???faced with a program that has intelligence value but also has political liabilities,??? said Mark M. Lowenthal, a former senior CIA official. ???Now that he has a set of recommendations from a panel he appointed, if he doesn???t follow them people are going to say, ???are they just for show???? Or if he does follow them, he scales back a program that he supported.???

Members of the panel met with Obama on Wednesday and said he was receptive to the group???s findings.

???Obama didn???t say, we accept this on the spot,??? Clarke said in an interview. ???But we didn???t get a lot of negative feedback. They???re going to talk to the agencies and see what the agencies??? objections are and then make their decisions.???

White House officials declined to comment on specific recommendations Thursday, but press secretary Jay Carney signaled that the administration remains reluctant to dismantle the data-collection program. ???The program is an important tool in our efforts to combat threats against the United States and the American people,??? Carney said.

But the White House’s own panel found little evidence to support that assertion.  If they plan to keep making it, they’ll have to do a better job of backing it up.  In the end, law enforcement and national security power is always tempered by the public’s faith in accountability and due process.  We are asked to trust the government, with the understanding that many of the actions it takes on our behalf must be kept secret, or else effective intelligence gathering becomes impossible.  When dealing with programs on the NSA scale, it becomes difficult to see how the checks and balances we expect could be implemented… and the consequences fall not just upon a few suspect individuals who nevertheless deserve due process, but upon all of us.