Things Barack Obama Doesn’t Consider “Abuse”

Unauthorized suspected terroristsPresident Obama will shortly give a speech in which he’ll make cosmetic changes to the NSA dragnet, but will continue, in many ways, the accessing of personal data from Americans with no probable cause.

As part of his cosmetic effort, he will also say there has been no evidence of abuse in these programs. That means he does not consider any of the following abuse:

  • The NSA spied on the porn and phone sex habits of ideological opponents, including those with no significant ties to extremists, and including a US person.
  • According to the NSA in 2009, it had a program similar to Project Minaret — the tracking of anti-war opponents in the 1970s — in which it spied on people in the US in the guise of counterterrorism without approval. We still don’t have details of this abuse.
  • When the NSA got FISC approval for the Internet (2004) and phone (2006) dragnets, NSA did not turn off features of Bush’s illegal program that did not comply with the FISC authorization. These abuses continued until 2009 (one of them, the collection of Internet metadata that qualified as content, continued even after 2004 identification of those abuses).
  • Even after the FISC spent 9 months reining in some of this abuse, the NSA continued to ignore limits on disseminating US person data. Similarly, the NSA and FBI never complied with PATRIOT Act requirements to develop minimization procedures for the Section 215 program (in part, probably, because NSA’s role in the phone dragnet would violate any compliant minimization procedures).
  • The NSA has twice — in 2009 and 2011 — admitted to collecting US person content in the United States in bulk after having done so for years. It tried to claim (and still claims publicly in spite of legal rulings to the contrary) this US person content did not count as intentionally-collected US person content (FISC disagreed both times), and has succeeded in continuing some of it by refusing to count it, so it can claim it doesn’t know it is happening.
  • As recently as spring 2012, 9% of the NSA’s violations involved analysts breaking standard operating procedures they know. NSA doesn’t report these as willful violations, however, because they’ve deemed any rule-breaking in pursuit of “the mission” not to be willful violations.
  • In 2008, Congress passed a law allowing bulk collection of foreign-targeted content in the US, Section 702, to end the NSA’s practice of stealing Internet company data from telecom cables. Yet in spite of having a legal way to acquire such data, the NSA (through GCHQ) continues to steal data from some of the same companies, this time overseas, from their own cables. Arguably this is a violation of Section 702 of FISA.
  • NSA may intentionally collect US person content (including Internet metadata that legally qualifies as content) overseas (it won’t count this data, so we don’t know how systematic it is). If it does, it may be a violation of Section 703 of FISA.

Rather than discussing any of these violations, the NSA has waved around a few cases of LOVEINT (most, if not all, of which have not been prosecuted) as part of a successful ploy to distract from much more systemic abuses of its authority, affecting far more Americans.

But there has been abuse, even beyond practices (like back door searches) that gut the Fourth Amendment or (like NSA’s approach to encryption) that hurt Americans’ security.

President Obama will spend a lot of time saying there have been no abuses. He’s wrong.

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.

7 replies
  1. Frank33 says:

    President Obama will announce in an 11am ET Friday speech that he will end the National Security Agency’s practice of storing practically all American phone records, a White House representative told the Daily Dot.

    Good news. The President promises that will no longer store our phone data. That is obviously unconstitutional. The bad news is that the other four of the “Five Eyes” will be storing it.

    They are so clever.

    TThe NSA and the other Secret Governments of the world, all work together for the One Percent.

  2. orionATL says:

    is this a column of political reportage and analysis

    or a bill of indictment?

    put me on that grand jury – please.

  3. orionATL says:

    our wise and always deeply reflective president solomon has cut the baby cleanly in half.

    this foolish decision could, and i believe will, cost president obama a great deal of grief.

    benghazi, the irs, who lost afghanistan and iraq (coming soon at a teevee screen near you), the affordable care act’s computer sign-up program will all prove minor nuisances in his presidency compared to what a right-wing/progressiv/corporate media attack on the president’s dishonest, palliative treatment of this paramount constitutional issue of his presidency.

    this really is impeachment material.

  4. Curmudgeonvt says:

    After reading this litany of crimes – all valid – I’m left with but one thought: nothing will come of this. Even with Leahy reiterating that he will sponsor a bill to end the mass collection of data, it will be defeated and then things will quiet down and the crimes of yesterday will continue – with little if any front-page coverage. You can see it coming in the responses of the media coverage and commentary throughout the remainder of yesterday’s post-speech. Admissions that Obama actually said nothing but that it’s not worth the press/MSM getting all sweaty over. Business as usual will continue. The last thing the government wants to do is disable programs that MIGHT stop an terrorist attack (but probably won’t) and then have something happen. Of course, Bush managed to escape blame-free for the “failures” of 9/11.

    Does anyone still doubt that there are different rules for different classes of people?

  5. earlofhuntingdon says:

    Mr. Obama’s record as an apologist for political excess, legitimizing and domesticating it while obsessively punishing those who expose and critique it, precedes him. He is an enforcer of the power status quo. His reform of intelligence practices will be as welcome by the intelligence industry as his health care reforms were welcomed by the insurance industry.

  6. CYFEDPIG says:

    Hussein Obama is a un-American traitor, liar, and puppet dictator. Hussein Obama should be impeached immediately for crimes against the Constitution and Bill of Rights.

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