“We’re Not Going to Leave It To the Guy Who Lies to Congress with Impunity Anymore”

The regular outlets for NSA leakers are presenting details of the recommendations the NSA Review Committee has given to President Obama (Gorman, Sanger). Curiously, Siobhan Gorman suggests that because the recommendations closely following the Leahy-Sensenbrenner bill, it bodes well for passage of that bill.

The panel’s idea “aligns very closely” with a bill offered by House Judiciary Committee Chairman James Sensenbrenner (R., Wis.) and Senate Judiciary Chairman Patrick Leahy (D., Vt.), said one person familiar with the report, suggesting it could give ammunition to congressional efforts.

From what I’ve seen so far, I’m not sure that’s actually true. Moreover, that’s not how intelligence reform generally works. Rather, usually the executive adopts changes asked by Congress, thereby dissuading Congress from actually passing those changes into enforceable law. With Jim Sensenbrenner correctly calling Dianne Feinstein’s Fake FISA Fix “a joke” and growing number of co-sponsors for Sensenbrenner’s bill, I can imagine why the Executive would want to pre-empt actual law.

Significantly, the proposed recommendations don’t end the concept of a phone dragnet; they just move administration of it elsewhere — either a third party or the telecoms — equally prone for abuse. The Review Committee apparently didn’t review efficacy of these programs.

Besides, according to David Sanger, the proposals predictably focus  more on Angela Merkel’s privacy than the hundreds of millions of others whose privacy the NSA compromises.

The advisory group is also expected to recommend that senior White House officials, including the president, directly review the list of foreign leaders whose communications are routinely monitored by the N.S.A. President Obama recently apologized to Chancellor Angela Merkel of Germany for the N.S.A.’s monitoring of her calls over the past decade, promising that the actions had been halted and would not resume. But he refused to make the same promise to the leaders of Mexico and Brazil.

Administration officials say the White House has already taken over supervision of that program. “We’re not leaving it to Jim Clapper anymore,” said one official, referring to the director of national intelligence, who appears to have been the highest official to review the programs regularly.

[snip]

[National Security Council spokesperson Caitlin Hayden] added that the review was especially focused on “examining whether we have the appropriate posture when it comes to heads of state; how we coordinate with our closest allies and partners; and what further guiding principles or constraints might be appropriate for our efforts.”

It’s that James Clapper line that ought to be the tell, however: that folks within the Administration are boldly stating that James Clapper won’t be able to run amok anymore.

The same James Clapper, of course, on whom the White House imposed no consequences for lying to Congressional overseers.

Which brings me to my favorite detail, from the NYT:

One of the expected recommendations is that the White House conduct a regular review of those collection activities, the way covert action by the C.I.A. is reviewed annually.

Obama suggested last week he serves in no more than an advisory role for the Deep State, someone who can propose changes, but not someone who can order them. That an advisory committee has to tell the President that the NSA operates with less oversight than the CIA whose covert operations have systematically exceeded the claimed authority granted by the President says something.

I do fear this Review will pre-empt some of the most important legislative fixes.

But I also hope we’ll finally see heightened distance between the Deep State and the Executive that is overdue for reining it in.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

25 replies
  1. orionATL says:

    well, you called this one right, ew:

    http://www.washingtonpost.com/world/national-security/white-house-to-preserve-controversial-policy-on-nsa-cyber-command-leadership/2013/12/13/4bb56a48-6403-11e3-a373-0f9f2d1c2b61_story.html

    there was never much doubt in my mind that obama’s conservatism about “national security” and his timidity in disciplining our secret police agencies would lead to a vote for “no change” by the prez.

    nonetheless, there was still hope of positive presidential action; now there’s none.

    president obama can eulogize the great moral and political leader nelson mandela all he wants, but as a moral and political leader in his own right at a time when our nation desperately need one, he isn’t fit to shine mandela’s shoes.

  2. DWBartoo says:

    Obama’s “suggestion” and what “an advisory committee has to tell” certainly “says something”.

    Either it is critically important and needs to be very broadly understood, or else it will fade out of human consciousness, quickly, as the usual amnesia sets in.

    I guess we can hope for that heightened distance, however, so far, any genuine evidence of more than rhetorical distance is not to be found.

    And, looking forward, wouldn’t that evidence have to be kept secret for national security reasons?

    As well, the courage necessary to set such a stage of actually opposing or limiting the raw power of the Deep State appears, for all realistic and practical, call it “pragmatic” political reasons, to be lacking among those charged with governing and upholding the rule of law beyond what is financially expedient.

    Now, were the populace, the citizenry, mere disappearing middle class and swelling ranks of the poor to become, finally, vexed about this (or even some other) outrage … what mechanism, beyond “public outrage”, would avail them the attentive ears of their “representatives” … them not doing the overseeing, those elected ones on whose watch much of this “failure”, call it what you will, has gone down?

    Frankly, EW, I hope this especially important post of yours may gain widespread consideration, as it seems a preliminary need if your hope is to be even considered as realizable.

    DW

  3. Saul Tannenbaum says:

    I think there’s another kind of preemption going on here.

    We’re really still only in the early days of this scandal, if that’s the right word. Only a small number of the Snowden documents have been released. And the body politic hasn’t really absorbed the implications entirely. Understanding of what’s being done in our name is limited to folks who, for one reason or another, have been steeped in the issues for some time.

    Listening to Chas Freeman yesterday, a guy who spent decades in the Foreign Service, went to China as Nixon’s interpreter, was Ambassador to Saudi Arabia during Desert Storm, and was almost Chair of Obama’s National Intelligence Council, sound like Noam Chomsky as he talked about the NSA and security state, was sobering, in the sense of how out of the ordinary it seemed. I think it’s going to become more and more ordinary, and these reforms are intended to prevent that. You know, the “no, no, we fixed all that, we’re good, move along” strategy.

    But even someone as radicalized as Freeman hasn’t really thought this all through. One of his points was that our security apparatus needs to stand down from its war footing (Joel Brenner, to his credit, agreed) and turn its attention to the real thread, cyberattacks. My question to him was: “The NSA is our lead agency on cybersecurity. What guards against them simply taking much of what they’re doing, relabeling it cybersecurity, and just keep doing it?” I don’t think even he liked his own answer which was, for the most part, these are well meaning professionals of good faith who we should trust. Then he went on to tak about reforming oversight so that it actually works and is trusted. That’s a long road, another one that can be preempted with a “we fixed that” strategy.

  4. emptywheel says:

    @jay ackroyd: WH has been arguing NSA (and Clapper) have been doing things they don’t necessarily approve, but WH will only offer suggestions on how to fix it. That means the President is not in charge, the National Security state is. That needs to change.

  5. jay ackroyd says:

    @emptywheel: But do you see this executive trying to assert that control? I suppose you could argue that Cheney exerted control, but I don’t think we’ve seen that from the POTUS since, what? Nixon? GHWB? although with a more collaborative frame of mind.

  6. jay ackroyd says:

    @Saul Tannenbaum: “these are well meaning professionals of good faith who we should trust ”

    This is the constant refrain when I talk to these people. Glenn Carle. David Kahn. That we should just trust them. They’re patriots. They want to protect us. I suppose this makes more sense for the SIGINT guys, but still, this seems hopelessly, kind of shockingly naive. Can’t they spell Aldrich Ames?

  7. C says:

    One of the expected recommendations is that the White House conduct a regular review of those collection activities, the way covert action by the C.I.A. is reviewed annually.

    It is a testament to how much the permanent election cycle has invaded our politics that this does not take place. And it is a testament to the Obama administration that they admit it openly.

    By testament of course I mean depressing depressing shame.

  8. C says:

    @jay ackroyd: I agree I keep hearing this plaintive excuse as well. The catch is, while it may be acceptable to note that a child who spills milk bringing it to you “meant well” these are the actions of otherwise intelligent adults who are expected to be responsible for their actions, actions that are more than a decade old, cost substantial money, bring in minimal rewards (if any), harm other interests, and oh yes run afoul of basic laws.

    In cases such as these good intentions mean nothing and the response should fall heavy on those who organized and led them.

  9. What Constitution? says:

    I have resisted the urge to abide the terminology “Deep State” because it seems so, so “Trilateraist/bogeymen/tinfoil hat” -ish, in an uncomfortably paranoiac yet resignedly accepting kind of way. But then, there’s the axiom that “just because you’re paranoid doesn’t mean there aren’t really people out to get you.” And when Obama glibly advises he’s not in control of somebody unnamed, and the next thing you know we’re droning another wedding party in the Middle East while the “focus” of US “review” of NSA is said to be focusing on what we’ll be changing on foreign head-of-state surveillance, the thought that occurs is mostly what new technologies we need to replace the tinfoil hats — those must be useless by now given all the other technologies we’ve been shown. “Deep State” may well deserve to stick, not that that’s much in the way of progress or hope. So can we at least start by clapping Clapper in leg irons — or at least fire him?

  10. orionATL says:

    @Saul Tannenbaum:

    i too am intensely sceptical of the “well, we will take care of your cyber security needs, for you.”

    1. what very specific cyber security event/attack/defense (or multiples) can the nsa point to having prevented/protected us from?

    2. why should we believe that the nsa as currently organized, lead, and focused as a bureaucracy is any more competent at “cybersecurity” than it has proved to be at “terrorism security” which is to say, not at all.

    3.leaders from the military, and still within the military bureaucracy, may not have the best perspective for acting to protect “cybersecurity”. the current structure and extreme abuses of the nsa were the result of a direct expansion by a military leader from success of a smaller spying program employed in the iraq occupation.

    4. very specifically, what is this thing we call “cybersecurity”?

    sure, i can think/worry about electrical tramsmission lines, water aqueduct controls, fighter plane contracting, computerized banking systems, nuclear weapons controls,

    but then 5 decades ago i could think about nuclear weapons, russian tanks rolling west with a headstart from poland, communism taking over governments in south asia, latin american, and, of course, communists infesting the american government.

    there will always be some boogie-sashquash to try to scare us children with until, as freeman notes, we step down from war footing,

    and as i note, we become willing to accept risk and stubbornly unwilling to be scared into taking secirity flyers and funding questionably competent security bureaucracies.

    at the moment, i see “cybersecurity” as just another boo! rather than a serious reality. sheldon whitehouses’ histrionics not withstanding.

  11. Saul Tannenbaum says:

    @jay ackroyd: In Chas Freeman’s case, he’s certainly been in situations where the SIGINT guys have helped protect him. That, of course, makes the rest of his remarks even more striking. I think that I had caught him flat-footed with the question and he gave a reflexive answer, one that came from his 30 years of government service. And really believe that, by the time it came out of his mouth, he didn’t like it anymore than you or I did.

  12. jay ackroyd says:

    @orionATL:

    The growing concern I have is that the intelligence community’s threat assessment matches up pretty closely to ew’s–that the most pressing security threat is climate change, and that the risk involved is domestic insurrection. We’ve already seen the apparatus at work in a couple of instances. The first was the imposition of martial law and forced evacuation of refugees in New Orleans. The second, not related to a climate emergency but illustrative of where the security apparatus sees a threat, was the coordinated shutdown of OWS.

    The massive gathering of metadata, and the implementation of retroactive surveillance happens to dovetail very well with a security apparatus fearful of future events that lead to domestic conflict.

    “cybersecurity” in this instance doesn’t refer security for US citizens–we’ve already seen such security violated wholesale and retail, but security for the ruling elite, Deep or not.

  13. Saul Tannenbaum says:

    @orionATL: I’ve always believed that the greatest trick Bill Gates ever pulled was to make us forget that security vulnerabilities were product defects for which the producer should be held liable.

    It’s certainly the case that everything digital has some sort of security vunerability. And it’s certainly the case that includes software that’s connected on one side to critical infrastructure. And it’s also certainly the case that, for some of that software, the other side of that connection is the public internet, which renders the critical infrastructure vulnerable to cyber attack. People do stupid things, including those we entrust with dangerous things.

    How great is the risk? I have no idea. I have heard from someone whose role and clearance level gives him access that, if I knew what he knew, I’d be scared. I didn’t believe him. Was I right? Still, I have no idea. I believe in his general intellectual honesty, but who knows what he’s being told?

    The best response I’ve seen to this has been from a Google engineer who deals with threats to its infrastructure and who, outside his employment, provides support to journalists/dissidents who gain the attention of repressive forces. He says that the best way to think about this is not that you have a cybersecurity problem, but that you have an adversay problem. Someone is after you and you need to deal with that. That perspective gives you a wider range of responses beyond cybersecurity ones.

  14. orionATL says:

    @Saul Tannenbaum:

    nicely said. thanks.

    yeah, i’d feel better if nsa, or some other responsible entity, would say, for example, “o.k., our problem is internet bank theft. this is why it is a problem. we are going to focus on that problem and reduce its impact. this is what we are going to do about it.”

    or …

    or …

    or …

    after decades of listening to my government and leaders tell me time and again of a problem that could indeed be bad but rarely turns out to be so, i am now intensely reactive to such claims. i want specification of dangers, concretization of operations to reduce a specfic danger, and some readily verifiable success at remedying, case by case.

  15. orionATL says:

    @jay ackroyd:

    your’s is my assessment.

    much of what is being done in the name of “national security” actually seems best suited for policing – of national unrest, of political speech, and of violence suppression. this includes the tight co-operation between the doj, fbi, dhs, and, i suspect, dod.

    i hadn’t thought of katrina this way, but crushing ows was clearly a co-ordinated national effort, perhaps viewed as practice, a war game by those with their hands on the levers of power.

  16. The QVC Deep State Fashion Hour says:

    Obama’s not an advisor, no one gives a rat’s ass what he thinks. Obama is Clapper’s spokesmodel. Obama reads his script and tells you how it slices and dices and chops all in one.

    Obama parrots the Big Lie that foreign surveillance is not constrained by law. This is the deep state’s solipsistic perversion of ICCPR Article 17, which contradicts General Comment No. 16, para 8, of the Human Rights Committee. It also ignores the letter, spirit, and purpose of Article X of the American Declaration Of The Rights And Duties Of Man, which is binding in the jurisprudence of the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights. It also ignores the American Convention on Human Rights, Article 11, which is binding as conventional international law for states parties to the Organization of American States. The security apparat struggles to ignore the consensus of treaty bodies, charter bodies, and the overwhelming majority of UN members.

    This is not just international law, this is the supreme law of the land, equivalent to federal statute, with which US law at all levels must be brought into compliance, reinforced by UDHR Article 12, which, as customary international law, is part of federal common law and the common law of every state. This is the governing authority for security-state oversight. Obama’s trying to lie it all away.

  17. jay ackroyd says:

    @orionATL: When I’ve had conversations with Ian Welsh or Gaius Publius (at Virtually Speaking) we speak fairly offhandedly about Mad Max scenarios. I’ve started to think we need to explain that the way you end up there is through a series of confrontations between deteriorating state actors and citizen insurrectionists. New Orleans wasn’t a case of insurrection obviously. But moving out potential troublemakers strikes me as a pre emptive response.

    I see climate change as the source of tipping points, and believe that a 10-15 year threat assessment would identify those potential tipping points and relate them to population centers.

    There’s clearly no plausible external threat, certainly not one to justify the degree of fear propaganda we’re experiencing. it’s also hard to separate propaganda from graft. The cops stationed to search bags at the Columbus Circle subway stop are evidence of both for instance, as are the pornoscanners.

  18. JoeP says:

    @Saul Tannenbaum:

    awww! thanks! you made me feel special and sophisticated (And elite!)!

    re. “Understanding of what’s being done in our name is limited to folks who, for one reason or another, have been steeped in the issues for some time.”

Comments are closed.