Civil-liberties board: NSA phone-surveillance program likely illegal, should be stopped
posted at 9:21 am on January 23, 2014 by Ed Morrissey
Yesterday, I wrote about the difficulties of putting Barack Obama’s ambiguous pledges for “reform” at the NSA into concrete action, and concluded that no one at the White House had bothered to do any groundwork before giving a speech. As it turns out, the White House didn’t even bother to wait for all of the evidence to come in before setting policy — even as murky as the policy in the speech was. The Privacy and Civil Liberties Oversight Board (PCLOB) investigated the Section 215 metadata collection and surveillance programs and concluded that they are illegal, a threat to privacy, and should be cancelled rather than reformed:
An independent executive branch board has concluded that the National Security Agency’s long-running program to collect billions of Americans’ phone records is illegal and should end.
In a strongly worded report to be issued Thursday, the Privacy and Civil Liberties Oversight Board (PCLOB) said that the statute upon which the program was based, Section 215 of the USA Patriot Act, “does not provide an adequate basis to support this program.”
The board’s conclusion goes further than President Obama, who said in a speech Friday that he thought the NSA’s database of records should be moved out of government hands but did not call for an outright halt to the program. The board had shared its conclusions with Obama in the days leading up to his speech.
The divided panel also concluded that the program raises serious threats to civil liberties, has shown limited value in countering terrorism and is not sustainable from a policy perspective.
Why not wait for the PCLOB to finalize its conclusions before making a decision on policy? Maybe Obama figured the PCLOB would agree with him; it has a certain lapdog reputation, enhanced by the fact that it hadn’t ever acted from its inception in 2004 until the Snowden revelations prompted its first substantive action in November of last year. If so, why not wait for the political cover?
More likely, Obama decided that he wanted to keep the Section 215 programs no matter what the PCLOB concluded. Again, though, the better option here is to wait for the PCLOB to report and then announce that he will follow the recommendations of his own presidential commission (which had an even stronger lapdog sensibility) while paying lip service to whatever concerns the PCLOB might raise.
The PCLOB took more care with its public case than did Obama. The administration used the case of al-Qaeda operative Khalid al-Midhar, who coordinated the 9/11 attack while in San Diego via cell phone. The White House argued that the current Section 215 surveillance would have allowed the NSA to detect the entire 9/11 cell, but the PCLOB report concludes that the problem wasn’t detection — it was communication:
“The failure to identify Mihdhar’s presence in the United States stemmed primarily from a lack of information sharing among federal agencies, not of a lack of surveillance capabilities,” the report said, noting that in early 2000 the CIA knew Mihdhar had a visa enabling him to enter the United States but did not advise the FBI or watchlist him. “…This was a failure to connect the dots, not a failure to connect enough dots.”
Second, the report said, the government need not have collected the entire nation’s calling records to identify the San Diego number from which Mihdhar made his calls. It asserted that the government could have used existing legal authorities to request from U.S. phone companies the records of any calls made to or from the Yemen number. “Doing so could have identified the San Diego number on the other end of the calls,” though, it noted, the speed of the carriers’ responses likely would vary.
Now, the White House is stuck with having to answer this unexpectedly harsh blast from a panel that few thought was capable of independence, after making his grand NSA speech last week. Obama’s back on the defensive instead of controlling the media space, thanks to this unforced error. And this time, as McClatchy notes, Obama will have to explain himself in a lot more detail:
President Barack Obama’s response to the international uproar over the nation’s surveillance programs is leaving Americans with more questions than answers.
Where will millions of phone records be stored? What protections will foreigners have? Which secret documents will be declassified?
In what was designed to be his defining speech on the issue last Friday, Obama announced few specifics.
“For every answer he gave, there are several new questions about how he plans to implement these changes,” said Elizabeth Goitein, a co-director of the Brennan Center for Justice’s Liberty and National Security Program. “Ultimately, the full effect of these reforms remains to be seen.”
The Pew poll that McClatchy features shows just how poorly that speech went.
President Obama’s speech on Friday outlining changes to the National Security Agency’s collection of telephone and internet data did not register widely with the public. Half say they have heard nothing at all about his proposed changes to the NSA, and another 41% say they heard only a little bit. Even among those heard about Obama’s speech, few think the changes will improve privacy protections, or make it more difficult for the government to fight terrorism. …
Reflecting the limited impact of Obama’s address, overall approval of the program and opinions about whether adequate safeguards are in place were no different in three nights of interviewing conducted after the speech (Jan. 17-19) than during the two nights of interviewing conducted prior to the address (Jan. 15-16).
Only 21% thought Obama’s “reform” would increase privacy protections, and only 13% thought it would adversely impact the ability to fight terrorism. More than seven in ten on both questions think it made no difference at all. That’s what happens when speeches substitute for real action, and assumptions are made before all the facts are in.