So then. On Friday, President Barack Obama gave his first press conference since 30th April, announcing, among other things “the first public review of US surveillance programs since 9/11”. The Guardian sees this as “the president’s first concession that the mounting public concern in response to disclosures by whistleblower Edward Snowden justifies reform.”
More precisely, Mr Obama announced “”four specific steps” designed to reassure the public and improve the US’s reputation abroad. The proposals included a commitment to work with Congress to “pursue appropriate reforms” to Section 215 of the Patriot Act, which has been used to authorise the bulk collection of millions of US phone records.” He also apparently said that FISA court proceedings are biased, “only hear one side of the story” and “may tilt it too far in favour of security.” Mr Obama promised he would “work with legislators to revamp the [FISA] court […] to make it more adversarial,” for example by introducing “privacy advocates” […] to some Fisa court proceedings.”
Hear hear! Sounds almost as if Mr Obama was finally ready to talk to Congress and the public about their uncertainty over Edward Snowden’s revelations, rather than to continue his, by now rather ridiculous, hunt for Snowden or his tantrums regarding Russia’s asylum for the man.
So is this a reason for us to get all exited? No, it certainly isn’t. Okay, the president’s concessions and apparent commitment to review may seem like “a significant climbdown for the White House, which for [the] two months [since the first documents leaked by Snowden appeared] has maintained that it has struck the right balance between privacy and security.”
However, what may seem to some like a change of heart is really not all the US government is cracking it up to be. After all, nothing that Mr Obama said is exactly news. And his addressing the issues raised by Mr Snowden’s revelations is long overdue. The significance of his statements is further diminished because at this point in time he has precious little choice other than to make them, lest people should notice that his government – bolstered by the sinister threat of the ever-looming War on Terror – thinks it justifiable to curtail people’s privacy without asking them whether or not they are willing to sacrifice it.
Ultimately, this is not about addressing the problems with the programmes themselves; it is about addressing issues of confidence. And those are two different things. Implementing measures to make people confident that these programmes are necessary, good and right, and that they are not being abused, is not the same as facing the fact that abuse is likely taking place and then fixing what is going wrong.
This discrepancy hasn’t gone unnoticed, either. Says senator Ron Wyden, “Notably absent from President Obama’s speech was any mention of closing the backdoor searches loophole that potentially allows for the warrantless searches of Americans’ phone calls and emails under section 702 of the Foreign Intelligence Surveillance Act.”
Actually, when you look closely at what Mr Obama has said, you are quite inclined to laugh out loud – that is when your mouth isn’t hanging open in disbelief at the nerve of the man. For example when he says that, “[t]here is no doubt that Mr Snowden’s leaks triggered a much more rapid and passionate response than would have been the case if I had simply appointed this review board, if I had sat down with Congress [and] worked this thing through.”
Now, I am going to repeat this for you because it is magnificent:
“If I had simply appointed this review board, if I had sat down with Congress [and] worked this thing through.”
Implying of course that this was what he would have done anyway, if Edward Snowden [“not a patriot” by the way – just thought he’d mention that again, as if his views on what Mr Snowden is and isn’t hadn’t already been broadcast ad nauseam. For several weeks. Between nations, in interviews, even on talkshows] hadn’t got there first and triggered a
“passionate response” public outcry out of all proportions.
To be fair, none of us can prove that Mr Obama wouldn’t have “appointed this review board, […] sat down with Congress [and] worked this thing through,” if Mr Snowden hadn’t gone and messed things up.
However, I for one am not that sure Mr Obama would even have seen the need for such a review, if Mr Snowden hadn’t been so naughty. After all, Mr Obama still insists that there is “no evidence that the intelligence agencies ha[ve] “abused” their powers.” So, if there is no abuse, why would you need to review anything? Perhaps he is even right, in some twisted way. After all, it turns out that dragnet data collection may have been legal since 2011. Hang on, I hear you say. What’s that?
Yap, consider this: this Friday, 9th August, the Guardian – referencing another document leaked by Edward Snowden – revealed that “[t]he National Security Agency has a secret backdoor into its vast databases under a legal authority enabling it to search for US citizens’ email and phone calls without a warrant.” Think about this; it is big. After all, one of the major arguments that’s been repeated time and again in favour of NSA proceedings is that no US citizens can be targeted without a warrant. Rather, section 702 of the FISA Amendents Act (FAA) “gives the NSA authority to target without warrant the communications of foreign targets, who must be non-US citizens and outside the US at the point of collection.”
Doesn’t sound so bad, does it? After all, this is what the government has been saying all along: the FAA – as a necessary measure in the ever-evoked War on Terror – allows the NSA to collect the data of anyone who isn’t a US citizen and not located within the US. We have already been made aware that there are a couple catches to this rule. For example, the FAA says something about the Spooks not being allowed to collect anything unless they are 51% certain that their target is a non-US person outside the US. Now, correct me if I’m wrong but just over half-certain is not actually very certain at all. Much more importantly though, an “update” to the same section 702 then goes on to state that “the FAA 702 minimization procedures approved on 3 October 2011 now allow for use of certain United States person names and identifiers as query terms.”
Now, I admit this is a bit obscure so let me try and make it more transparent. What the FAA was supposed to do was to allow the collection of data from non-US citizens outside the US without a warrant. So in theory, the NSA are not supposed to collect US citizens’ data. What the FAA does not prevent though, is for data of US citizens to be swept up in the NSA’s dragnet, if these people happen to be speaking to non-US citizens outside the US. And once they have the data, they can do an awful lot with it. Store it, for example, for up to five years, and reference or search it later on.
Edward Snowden himself mentioned this in one of his interviews. I believe he said something to the effect that if you raise a red flag at some point in the future, the NSA can then go back over all your data and search it for evidence to bolster their case against you.
Two white papers released by the Obama administration state that dragnet collection serves precisely that purpose. One of the papers says that US citizens’ data is regarded as relevant (i.e. worth collecting), if there are “reasonable grounds to believe” that when all the data is collected, “when queried and analysed consistent with the [surveillance] Court-approved standards, [it] will produce information pertinent to FBI investigations of international terrorism.” So, importantly, the NSA can collect data based on the belief that there might be some information in it that they might be able to use. Senator Ron Wyden points out that this creates a “loophole […] potentially allowing ‘warrantless searches for the phone calls or emails of law-abiding Americans’”. The NSA and FBI can then get their warrant later and sift through it at their leisure. The important point is that they sweep it up and retain it.
You might argue that section 702 calls for so-called “minimization procedures” that are in place to ensure that US citizens aren’t target without a warrant. The update to section 702 states that “analysts may [NOT] implement any USP [US persons] queries until an effective oversight process has been developed.” The catch is that no one knows if an effective oversight process has been developed. When asked about such oversight processes, government and NSA like to mention the FISA court that the NSA is supposed to go to for warrants. The problem is that FISA court proceedings are secret and that, thus, effectively, we cannot know or prove whether or not processes of oversight are working.
Mr Obama still insists that there is no evidence of abuse of these programmes. That is, in itself, debatable. For example, “James Sensenbrenner, […] primary Patriot Act author, told the Guardian last month that the administration was abusing a law that has itself attracted criticism for being overbroad: ‘I would advise the president to reconsider his misinterpretation of Section 215 and rein in abuse.’” This is Sensenbrenner, who wrote the Patriot Act. It should give us all pause that even he is unhappy with the way it’s being
And even if we were, for the sake of the argument, taking Mr Obama’s statement that there is no evidence of abuse at face-value, we’d still have to take two things into consideration.
One, the NSA “divid[e] their efforts up and us[e] many different code names in an attempt to disguise what they’re doing. It allows them to deny that a specific program is doing something, while conveniently omitting the fact that another program is doing the thing and the two programs are talking to each other.”
Two, the president himself has significantly altered the tone and content of his statements regarding the NSA revelations in between June, just after the first leaks, and now. For example, on 7th June, President Obama said that “surveillance programs were “fully overseen not just by Congress but by the Fisa court, a court specially put together to evaluate classified programs to make sure that the executive branch, or government generally, is not abusing them”.
Given the massive opposition to dragnet collection in Congress that statement rings hollow. Also, his repeated invocation of the FISA court as a medium of reliable oversight does not inspire much confidence. Jameel Jaffer, the deputy legal director of the American Civil Liberties Union, takes issue with precisely that. “The intelligence agencies say you can’t point to instances of abused authority. The fact that the government is collecting all this information is itself a form of abuse. But even if you take their narrow definition of abuse, we don’t have the information to evaluate that. It’s all secret.”
And I can give you another reason for why we shouldn’t get too excited about Mr Obama’s speech: he insists that he is not reacting to any evidence of abuse of the programmes in question but instead addressing a problem of public perceptions. What he is saying is that the NSA is doing just fine, it’s just that the public is getting it all wrong and that therefore they need to be reassured.
Let us be clear here; the reason anything is being re-viewed at all now, are not so much the problems with the programmes as such. This is about saving face – and once again trying to shift attention away from what the NSA is doing by talking about the public’s lack of confidence in these programmes and portraying it as basically unjustified. This removes the debate to a different level and is actually quite
devious clever; by addressing it in this way, the government makes it look as if it was taking the concerns seriously without actually reviewing the programmes as such. Says Obama: “If you are outside of the intelligence community, if you are the ordinary person, and you start to see a bunch of headlines saying ‘US, Big Brother, looking down on you, collecting telephone records, etc’, well, understandably people would be concerned. […] I would be too, if I wasn’t inside the government.”
Translation: “I understand that you are worried, considering how this has been portrayed in the press. I would be too, if I were you, but you don’t know what we know, so let me reassure you: everything is just fine.” This isn’t really much help at all, is it? As the president kindly reminds us, none of us are inside the government, nor are we likely to ever get inside government. So unless the government declassifies a lot of information and tells us exactly what it knows, we will hardly get into a position that allows us to make a judgement that is any more informed than that which we deduce from what we read in the media. It is, essentially, the media’s (and Edward Snowden’s) word against the government’s.
Now, we could hope that the government will indeed provide us with the information we need to make an informed judgement about whether or not we want these programmes to continue the way they are. However, it is not very likely that they will do that because that would require a lot of information to be declassified and if they did that, all the evil-doers in the world would know what they were up to. Make no mistake, the government would rather risk infringing the privacy of the good guys (i.e. you and me and everyone we know) than to show their hand to whatever potential bad guys out there might want to see it.
You might say that in return for protection from the baddies, you are willing to allow the NSA to snoop around your phone calls a bit. Fair enough, that’s up to you, but be aware that it’s not actually clear that the bad guys don’t already know all these things and that, more fundamentally, this is about our very right to privacy. Think it over, thoroughly, and consider the boundaries that have already been crossed, that might still be crossed and what that could ultimately mean.
By the way, I am indebted for the use of good-guy bad-guy rhetoric to none other than NSA director General Keith Alexander who conceded that the NSA may “incidentally in targeting a bad guy hit on someone from a good guy” when asked about NSA collection of information about American citizens at a technology convention in Nevada. Mr Alexander also said that collection is to be minimized so that “nobody else can see it unless there’s a crime that’s been committed”, prompting Senator Wyden to write him a letter asking him to amend the statement because it made these procedures look stronger than they are.
And just so you know, Senator Wyden has been fighting for over a year now to have US citizens’ data removed from the NSA’s data trawls and to remove the loophole in the law that allows for American’s data to be searched. With regard to Mr Obama’s Friday press conference, the same Ron Wyden observes that “[n]otably absent from President Obama’s speech was any mention of closing the backdoor searches loophole that potentially allows for the warrantless searches of Americans’ phone calls and emails under section 702 of the Foreign Intelligence Surveillance Act.” To this day, Mr Wyden is still fighting to close that loophole and I, for one, am not very reassured that he is going to get a lot of help from Mr Obama.
In other news, if you want more evidence that Mr Obama’s choices are very much dictated by what suits him and not so much by what is morally right or what public opinion suggests, consider this: last week Mr Obama cancelled his bilateral summit with President Putin. Mr Obama said that this was not about the Edward Snowden situation but about other differences the US currently has with Russia. Well, the differences still do not seem to weight heavily enough for him to “think it[…] appropriate” to boycott the Sochi Olympics in 2014.” Instead, “[h]e’s looking forward to some “gay and lesbian athletes” bringing home medals as a rejection of the Russian government’s anti-gay policies.”
Ah well, I suppose it’s fair enough for the president of the US to snub Russia by cancelling a bilateral summit over one single person, especially if he is the most wanted man in the world. But to snub Russia by cancelling the US appearance at the Olympics over a whole section of society would clearly be taking it a bit too far.
Everything put together, this week sadly has not seen evidence of growing humility or a change of heart on the part of the US government. Rather, if you look a little more closely, what becomes obvious is that in addition to exposing the NSA’s questionable surveillance programmes, Edward Snowden’s revelations have also led to a process that increasingly lays bare the double standards at work within the US government.
Show of hands who is fooled.