Goldilocks Porridge of NSA Reform

Since Obama’s speech on the dragnet, I’ve been skeptical the promise to obtain court review before conducting phone dragnet searches means anything. There’s nothing — not a thing — in the actual speech or the White House fact sheet accompanying it distinguishes the allegedly new court review from the review that already exists.

The President has directed the Attorney General to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding, or in a true emergency.

After all, the FISC quarterly approves which terror (and Iranian) groups NSA can target in the dragnet. That’s a judicial finding! Without more specificity, there’s no reason to believe this is any further review than already occurs.

In off-the-record briefing before speech (I didn’t listen in but saw a transcript), anonymous Senior Administration Officials did insist this meant an individualized review of each identifier to be queried (though there were no details about whether the court had to approve each query using that identifier; also, the SAOs indicated no limits would be put on using Section 215 to engage in bulk collection or querying of other items). Though one reason Executive Branch officials like to do off the record briefings is so their credibility can’t be challenged if their secret assurances prove to be hollow. And how would anyone prove these claims to be hollow, in any case, given that all of these reviews are secret?

That background is one reason I’m intrigued by Siobhan Gorman’s tick-tock of how the White House included this review as a very last minute sop to the Review Group, in response to pushback in a January 15 meeting.

Top White House officials, including National Security Adviser Susan Rice, met the afternoon of Jan. 15 with the members of the NSA review panel, which had issued an influential report a month earlier calling for an overhaul of key surveillance programs. The meeting turned tense, though not combative.

The panel had proposed a restructuring that would store telephone data outside the U.S. government and require NSA to obtain approval from the secret Foreign Intelligence Surveillance Court to conduct a search of the database. Currently, NSA searches are governed by an internal process.

White House officials told panel members at the meeting that they were inclined to move the phone data out of the NSA’s hands. But they didn’t mention judicial review of the searches.

The panel’s response was “that’s half” of their recommendation, according to a person close to the review panel. Some panel members interpreted the White House officials’ failure to mention judicial review as a sign that the recommendation wouldn’t be adopted, said several people familiar with the talks.

Appealing to the White House officials, panel members said that without judicial approval, “there’s no way you can restore trust” from the public, said a person familiar with the talks.


White House officials appeared “rattled” by the pushback, the person said. “It caused them to regroup.”

The next day—the day before Mr. Obama’s speech—White House officials inserted a new section into the speech that required judicial approval of a search from the secret court, which oversees many of NSA’s surveillance programs.

But even that evening, White House officials were struggling with whether the president could singlehandedly impose such requirements on another branch of government. They sought late-night advice from the Justice Department on how to structure the rule, trying to make it more collaborative than compulsory, a U.S. official said.

Which is how, Gorman goes on, they came up with language that on its face doesn’t impose any new review.

But there are several things that don’t make sense with this story.

First, the NSA Review Group didn’t recommend this kind of individualized review for Section 215, though they did say the intent of the law was to permit the government to query providers on individual orders after getting FISC authorization, suggesting such review is implicit.

As originally envisioned when section 215 was enacted, the government can query the information directly from the relevant service providers after obtaining an order from the FISC.


They did recommend judicial review for National Security Letters (and Gorman’s story makes it clear this discussion was wrapped up in a discussion of the Review Group’s recommendations for NSLs). But the Review Group’s recommendations focused on ending bulk collection and moving whatever remained out of government hands. Obama outright rejected the first recommendation and punted the second to a Congress that won’t adopt it.

PCLOB, on the other hand, did recommend something much closer to individualized review for the transition period (though they recommended it come after queries were made).

(c) submit the NSA’s “reasonable articulable suspicion” determinations to the FISC for review after they have been approved by NSA and used to query the database;

Though their last meeting with the White House was on January 8, well before this last-minute addition.

In any case, this last minute changed is pitched — by someone described as a “person familiar with the intelligence-agency discussions” —  as central to a Goldilocks “just right”  solution that left both privacy advocates and the intelligence community placated.

The White House strategy appears to have muted major criticism, both from privacy advocates and intelligence officials.

While privacy advocates said they had wanted Mr. Obama to require more privacy safeguards, their primary message has been that the true effect of the overhauls can’t be known until they are implemented.

Among the spy agencies, there’s relief that Mr. Obama’s speech didn’t criticize the surveillance operations.

“Nobody lost, nobody won,” said one person familiar with the intelligence-agency discussions. “That’s the nature of our government.”

Except the privacy advocate view portrayed here (with no source) doesn’t resemble the view I’m hearing from privacy advocates, who are focusing on Congress and on more pressure. That is, at least the Goldilocks conclusion, that this represents a happy middle, seems to be IC propaganda, perhaps designed to hide how little has actually changed (and unless we can trust Administration officials who would not speak on the record, this last minute solution is useless). It takes a story that claims the Review Group recommendation was to provide judicial review — not to end bulk collection –and declares the Review Group got what they wanted.

They didn’t.

All of this in an article published in the news hole of a Friday night.

8 replies
  1. What Constitution? says:

    It would appear that the game plan is cultivate a reaction to Obama’s speech which identifies the bar of “success” at the level of “he didn’t do nothing, so that’s something.” The number of “pundits” who are trying to characterize the speech as “half a loaf” in an effort to divert attention from the absence of any meaningful implementation of effective analysis or correction of legal and constitutional infirmities in the existing structures is pretty disheartening. Having “one [anonymous] person familiar with the intelligence-agency discussions” effectively try to take a bow for achieving nothing and calling that acceptable raises the art of “false equivalency” to a new low.

    Now, to the courts. To the Article III “adversarial-presentation-of-competing-arguments” courts. Judge Leon has it right, and the more one reads of the actual “rulings” in the other direction the more clear that becomes. Thanks, EW. Obama and his Clapper/Alexander chorus are making this up as they go along in an effort to try everything they can to avoid having to actually deal with the fundamental flaws inherent in this construct of “gee, we can technologically do this and isn’t it cool” without regard for whether it’s legal. When Obama’s own “blue ribbon panels” advise him of this and he responds with a speech as elliptical and diversionary as he did, there’s not much the PTB can do other than offer up “it could have been worse, he might have said nothing” to divert attention from the glaring inadequacies of the speech and the gaping holes it leaves for the NSA establishment to continue business as usual.

  2. Bay State Librul says:

    Off topic… but can someone do a post on Christie, e-mails, lawyering
    up, cover-ups, redacts, con men, liars, and our favorite lawyer and Rove’s man about town, Robert Luskin?

    Where is Fitzy?

  3. thatvisionthing says:

    Tell me when “reasonable articulable suspicion” is able to identify ApacheTrout’s concerns so that Obama and the NSA etc can swing into actually useful protect-America action:

    Because this all looks like hamsters running on wheels. Adding a Goldilocks court hamster wheel to keep the contraption finely balanced and still running, well, good luck I guess, but gearwise the clutch is in and nobody’s home anyway. But it keeps the hamsters occupied and their little feet from ever touching ground. Their freedoms are protected! Pellets and sawdust and clean water will be provided, until it isn’t.

    My mind wanders… to the day they levitated the Pentagon… …at least the absurdism was joyous. And Goldilocks was observed:

    The action’s absurdism extended even to the process of securing a permit beforehand; the authorities finally agreed to allow the Pentagon to be elevated three feet in the air, down from the 300 feet that organizers had initially requested — but three feet is not nothing when you’re talking about the largest office building in the world!

  4. john francis lee says:

    Is the speech of Obama the beginning of a serious regulation?

    It was clear from the President’s speech that he wanted to make minor changes to preserve authorities that we don’t need.

    The National Security agency operates under the President’s executive authority alone. He can end or modify or direct a change of their policies at any time.

    He can end or modify or direct a change of their policies at any time. He hasn’t. He won’t.

    Ed Snowden will.

  5. john francis lee says:

    In the end, of course, it’s all about the money …

    You worked for the NSA through a private contractor with the name Booze Allen Hamilton, one of the big ones in the business. What is the advantage for the US Government or the CIA to work through a private contractor to outsource a central government function?

    The contracting culture of the national security community in the United States is a complex topic.

    It’s driven by a number of interests between primarily limiting the number of direct government employees at the same time as keeping lobbying groups in Congress – typically from very well funded businesses such as Booze Allen Hamilton.

    The problem there is you end up in a situation where government policies are being influenced by private corporations who have interests that are completely divorced from the public good in mind.

    The interests of private corporations are making as much money as possible and growing larger. They’d sell all the information they collected to ‘al Qaeda’ if they could turn a buck doing so. And not get caught …

    The result of that is what we saw at Booze Allen Hamilton where you have private individuals who have access to what the government alleges were millions and millions of records that they could walk out the door with at any time with no accountability, no oversight, no auditing, the government didn’t even know they were gone.

  6. john francis lee says:

    @john francis lee:

    You know it makes you wonder just why Obama seems such a gelding … he’s the POTUS … he could end the NSA abuses, the drone assassination program, the American Gulag in one New York minute … yet he does nothing. I realize he’s a 21st Century Ronald Reagan in more ways than one, a b-actor selling change without changing while harboring his own gut reactionary politics, but you’d think that any warm body would eventually realize that the POTUS does have the power …

    I think he’s run by the CIA, John Brennan tells him what to do and not the other way around. And so do all the other ‘security’ agencies … and the really ‘smart’ bankers like Jamie Demon.

    Like Ronald Reagan but unlike him … Barack Obama is not just an empty suit, he’s wearing the suit of a ‘Manchurian Candidate’ … he’s the CIA’s plant in the White House.

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