Obama: My Overseas Spying Not Constrained by the Law I Passed as Senator

In a democracy in which separation of powers still functioned as intended, this would be a deliberate provocation (my transcription):

The Snowden disclosures have identified areas of legitimate concern. Some of it has also been highly sensationalized and has been painted in a way that’s not accurate. I’ve said before and I will say again: the NSA actually does a very good job about not engaging in domestic surveillance. Not reading people’s emails, not listening to the content of their phone calls. Outside of our borders, the NSA is more aggressive. It’s not constrained by laws. And part of what we’re trying to do over the next month or so is having done an independent review — brought a bunch of folks, civil libertarians, lawyers, and others, to examine what’s being done — I’ll be proposing some self-restraint on the NSA and to initiate some reforms that can give people some more confidence.

Where to start?

First, it is false to say NSA does a very good job of not engaging in domestic surveillance. They’ve been caught doing so, on a programmatic scale, under Obama’s Administration, twice. At least one of those programs simply moved overseas after being caught. The President basically said that being caught twice illegally wiretapping thousands (under the upstream collection) and millions (under the Internet dragnet) of Americans domestically is a good job!

Add in the fact that NSA can read the content of collected US person communications with no Reasonable Articulable Suspicion, with no reporting requirements. That certainly amounts to the authority to conduct fairly unlimited amounts of domestic surveillance via the back door loophole.

And to suggest NSA is “not constrained by laws” overseas is equally false.

First, there’s the Constitution. Under that, even EO 12333 activity should come at the direction of the President. In this passage, the President says Snowden’s disclosures have raised legitimate concerns. I know ODNI and NSA will point to the National Intelligence Priorities Framework as their authorization on these activities the President now finds problematic. But if they’re doing things overseas that raise concerns, then it is an admission from the White House it has inadequate control of the NSA.

More importantly, it is false to say even that NSA is not constrained by mere laws overseas. Section 703 of the FISA Amendments Act — a law which Obama played a crucially important role in passing as a Senator — says NSA can’t wiretap Americans overseas without specific authority from FISC. Section 704 limits physical searches, which NSA uses to authorize collection from servers. As far as I know, no one has considered whether the deliberate collection of US person content overseas — albeit in bulk — complies with Section 703 and 704. But it at least lays out some limits on NSA’s overseas spying.

To all this, Obama’s solution is to propose self-restraint on the NSA.

Again, it is the role of the President — and the White House more generally — to oversee activities conducted under Article II authority. The language Obama uses here suggests an NSA unbound by his control, one he “proposes” to rein in rather than “orders” to do so.

That equates to NSA operating beyond the law, both here and abroad.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

12 replies
  1. bloodypitchfork says:

    quote:”To all this, Obama’s solution is to propose self-restraint on the NSA.”unquote

    Self restraint. right.


    You gotta be fucking kidding. If that don’t cause a wave of gut splitting laughter across the entire planet …nothing will.

  2. C says:

    The claim of being not bound by laws has been tried and repeatedly failed. Indeed as Greenwald and others have noted the U.S. Supreme Court has specifically ruled that the government is bound by the constitution abroad in Reid v. Covert (1957):

    “At the beginning, we reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.”

    Given that Obama seems to ignore this, rather fundamental, decision in constitutional law I wonder at his credentials.

    See: http://www.theguardian.com/commentisfree/2013/mar/15/charles-krauthammer-constitutional-ignorance-foreign-soil

  3. ess emm says:

    Some of it has also been highly sensationalized and has been painted in a way that’s not accurate

    What isn’t accurate??? The only people that are painting this Inaccurately are Alexander, Clapper, Feinstein, Rogers, &c.

  4. What Constitution? says:

    So, if the activities of the US abroad would be illegal if conducted from/within the US, and if the US is acting in foreign countries presumptively under the guise of doing things that are legal in furtherance of the US government’s actions in furtherance of US interests on that foreign soil, then if you’re the “foreign soil” government that has been allowing the US to be doing what it’s doing… wouldn’t it merit revisiting US activities under the principles of “espionage”? I mean, it doesn’t seem all that farfetched to think that “foreign” governments could have been turning a blind eye to US intelligence presence based upon reflexive or at least “public” “presumptions” that the US was conducting itself in accordance with “US principles”, which would afford some cover to foreign governments in deferring to US government demands and cloaking their acquiescence in US imperialism by reassuring themselves and their populace that the US is, after all, “the good guys” (as distinguished, for example, from The Russkies trying to do the same things on that foreign soil). But here is the President affirmatively defending his spies by saying they don’t play by “US principles” abroad at all — doesn’t that, by definition, constitute an invitation/need for every foreign government to reassess their relationships with the US at an “intelligence” level? And apply the fundamental rule that espionage is criminal conduct?

    “As always, Mr. Phelps, should any of you or your IM Force be caught or killed, the Secretary will disavow any knowledge of your actions.”

  5. klynn says:

    In looking at the timeline, I am still confused as to exactly when we started overseas collecting. I see the dates that confirm/acknowledge we are doing it but is there a more specific time frame beyond the six years after the telecoms?

    I’m trying to clarify because there may be another story that weaves into this timeline…

  6. Mr. Mike says:

    We been doing the spy thing on other governments, friendly and foe, since 1776. The only difference is that technology has taken it to a whole new level. You know that the Pentagon has plans drawn up for the invasion of Canada if they get too uppity about their Single Payer health care delivery system.

  7. Robert Anderson says:

    The Evil of Obama.

    I suggest Obama honor Mandela by returning his own undeserved Nobel Peace Prize, and by supporting the struggle of the Palestinians against Apartheid Israel.

  8. earlofhuntingdon says:

    Mr. Obama loves to muddy the water and call it pragmatic leadership ™. His self-restraint works about as well as BushCheney era environmental and banking self-regulation. Not at all.

    Mr. Obama is commander-in-chief, albeit only of the armed forces of the United States. He is also chief executive of those same United States, the guy to whom the NSA, the CIA, the DIA, and a plethora of alphabet soup agencies ultimately report. He doesn’t have to ask them anything. He just needs to tell them what he wants.

    What Mr. O is saying, in language Richard Nixon would admire, is that he doesn’t want what he’s saying. He wants what they’re already doing.

  9. Teddy says:

    Chris Matthews might have asked President Obama exactly what “checks and balances” he had in mind when speaking about Congressional oversight. Surely not Rogers and Feinstein.

  10. Ghost says:

    While this Section 703 and 704 seems to provide the STRONGEST legal prohibition on overseas ‘executive actions’, I would think (or hope) that legal restrictions go well beyond that. As a ‘creature of the Constitution’ (and law as passed by Congress), the executive sole mandate is to apply that body of law… including in it’s actions over seas. Even when certain actions overseas and not involving US citizens aren’t necessarily held to the same standard as domestic actions, the motivational paradigm for US government actions should remain constrained to what it is directed by law and the Constitution. The point of the executive is that day to day operations of government require a certain degree of latitude in interpretation, but overseas actions that either inherently conflict with congress/law-mandated government policy, or that could simply not be reasonably be inferred as plausible course of action based on actual law, simply no longer have the legitimacy conferred by congressional mandate or the constitution. The latitude of interpretation of course introduces alot of flexibility, but the fundamental point which has been the tendency to avoid acknowledging is that the presidential executive fundamentally should not be free to take any actions it likes overseas “for shits and giggles”, the presidency is meant to EXECUTE the will of congress and the constitution. When Congress themself are not even aware of the scope of the executive’s actions, it’s clear that such a legitimacy is nowhere close to being maintained.

    Now there’s plenty of laws that probably indicate the government is directed by Congress to do “something” akin to it’s spying actions overseas… But on the other hand, there’s also plenty of laws which include restrictions on the government’s actions. Unless an enabling law specifically bypasses or specifically makes an exception to a restriction, then the restrictive law should still take precedent.

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