Monday, January 20, 2014

Sad but True: If the President Gets a Power, He's Loath to Let It Go

True to his word on spying? We'll see.
That is a defining sad truth about Barack Obama, that what the NSA does is patently unconstitutional, but he doesn't want to give up that unconstitutional power once it's in his quiver. It's in the very nature of his office. That's what George W. Bush did, especially with torture. And I don't have any example to point to, but I'd be surprised if Barack Obama wouldn't use "enhanced interrogation techniques" in the event of a situation perceived as "extremely vital" for America's national security because, again, they're in that quiver, a weapon grandfathered in. I could, of course, take him at his word, that he'd forgo torture, but we didn't think he was overseeing the largest data collection program in the world, did we?

It's just the nature of presidential power, at least as I've observed it. I'd bet there are millions of Americans who'd like to go back to a simpler day when we didn't just start wars and then get a resolution to authorize the use of force later, or set up an illegal collection of data violating the 4th Amendment and then later pass a law that legalizes it -- with a bandaid or two added to make it look less intrusive. But that's the way we do business today.

Snowden, for better or for worse,
 the Ellsberg of our day.
And there may be many millions more of Americans that hope our government violates our every constitutional right, as long as it keeps us safe because national security is paramount and we have to trust our government and our armed forces to do their duty. Only liberals and hippies worry about those things. We're real Americans, and we trust the generals.

To the more important case at hand, being Barack Obama's attempt to mollify the American people over their concerns with the powers the NSA have essentially accumulated for themselves, which, if you track the continuing stream of revelations from Edward Snowden, don't seem to have any boundaries. With each revelation, it's "they have our text messages, too?!?" and so forth.

Obama's concessions, offered in his speech last week, as I saw them, were:
  1. We should be concerned about our privacy.
  2. So maybe the government shouldn't have our data (he says meta-data from emails and phone calls, but we really don't know the extent of just exactly what all they collect, so we should assume, without paranoia, that we don't know the half of it). So let's look for a place to store it out of government hands.
  3. Maybe secret courts without people's advocates weighing in on the decisions is a bad idea. Let's somehow create a group of lawyers as privacy ombudsmen on behalf of the people. Funny thing is that's what judges are already supposed to be.
  4. Then there seemed to be a strain of doubt that maybe the NSA doesn't have to, you know, collect EVERYTHING. But that's a train that's hard to stop rolling.
Hoover: a real case in point...
Maybe Obama will figure out where to store the data. Maybe Obama will design a decent watchdog group that works with the FISA court in ways that satisfy the harshest critics. Maybe we find a way to restore a semblance of our 4th Amendment rights.

I have my doubts, but there are supporters of Obama's efforts in the press. Fred Kaplan in Slate, for example:
Few critics of the NSA will find much satisfaction in President Obama’s speech this morning or in the set of reforms that he announced. They will say that the reforms aren’t sweeping enough, and it’s true, his steps aren’t exactly trailblazing.
But these reforms were always going to be about stiffening the oversight of key NSA programs—not greatly altering, much less scuttling, the programs themselves.
The presidential commission’s Dec. 12 report made this point explicitly. The panelists found no evidence that the National Security Agency had used its surveillance technologies in ways that violated the civil liberties of American citizens. Their big warning was that, in the future, some high-level officials—a Nixon-like president or a J. Edgar Hoover-like director—might “decide that this massive database of extraordinarily sensitive private information is there for the plucking.”
Nixon: another president like him and...
It's clear, don't you think, that Americans who are worried about the NSA excesses fear exactly this, that this data hoard is ripe for abuse? I do. On goes Kaplan:
By that standard, Obama’s reforms are fairly significant. He didn’t adopt all 46 of his
commission’s recommendations, including a few that I would have liked to see him accept. But he did endorse some of the most far-reaching proposals and added at least one of his own.
He adopted what might be the report’s most drastic recommendation, which is to take the vast collection of metadata out of the NSA’s hands and store it either with the phone companies (where the data originated) or with some third party.  Under Obama’s reform, if the NSA wants to gain access to this data, it will have to file a request with the Foreign Intelligence Surveillance Court. In other words, no NSA official will be able to rummage through the records on his or her own authority. This is a major step to curbing the “potential for abuse.”
Obama also seeks to limit the number of "hops" investigators can make, e.g. if an American talks to a known terrorist, we then look at 100 Americans that American called to see who he might be speaking to. The second hop is 100 Americans that each of those Americans have talked to. Obama wants to stop at this second hop, or 10,000 Americans. A third hop equals the phone and email records of 1 million Americans, and in six degrees of Keven Bacon fashion, that third hop might include everybody, if taken enough times.

Orwell: Are we there yet?
I'll accept Kaplan's notion that Obama's proposed reforms are significant, limited, but significant. How they're implemented with tell the tale. Still, it's hard to trim around the edges of the greatest database of citizen's information in the history of the republic. We can hope that data is managed by the good guys, and the access to which is guarded by a court that contains a real watchdog function, and that future presidents or National Intelligence Directors don't resemble Richard Nixon or J. Edgar Hoover, or Dick Cheney, for that matter. But that's an awful lot to hope for.

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