As illustrated by the 1872 cartoon from Harper’s Weekly, the Aesopian fable of a mountain laboring to bring forth a mouse has long history in political commentary. It may never have seemed more appropriate than after President Obama’s speech on NSA surveillance. The speech was long on rhetoric and short on substance, addressing only a few of the 46 specific recommendations of his advisory panel. That panel and its recommendations, it appears, may have an even shorter shelf life in Presidential consideration than the Simpson-Bowles commission he created to solve the problem of the federal deficit.
Where the President’s speech did announce decisions or make proposals, it did so in vague and inconclusive terms. Civil liberties activists tended to express disappointment, while those for whom national security is a top priority breathed a cautious sigh of relief. RINOcracy.com is largely in the latter camp, but is dismayed that the President chose to say nothing whatever about the several important recommendations of his advisory panel concerning the need to improve the NSA’s protection of classified material. (See Blog No. 24, Part II). The President was (appropriately, in our view) critical of Edward Snowden. But he said nothing at all about any steps taken, or to be taken, to prevent Snowden II or Snowden III etc. (And the media, for its part, has chosen to say nothing about the President saying nothing on that subject.)
One recommendation that the President did address, and that has been the most widely discussed, was the panel’s proposal that metadata be stored with service providers or a private entity. Here the President engaged in some doublespeak that might make George Orwell blush. He began with a seemingly forthright statement:
I am therefore ordering a transition that will end the Section 215 bulk metadata program as it currently exists, and establish a mechanism that preserves the capabilities we need without the government holding this bulk metadata.
The President, however, immediately went on to explain that the “mechanism” he referred to does not exist, even in concept, and one might reasonably infer that it may never. In Blog 24, Part II, RINOcracy.com had explained why the proposal of the advisory panel did not appear practical, and the President offered a similar explanation:
The review group recommended that our current approach be replaced by one in which the providers or a third party retain the bulk records, with government accessing information as needed. Both of these options pose difficult problems. Relying solely on the records of multiple providers, for example, could require companies to alter their procedures in ways that raise new privacy concerns. On the other hand, any third party maintaining a single, consolidated database would be carrying out what is essentially a government function but with more expense, more legal ambiguity, and potentially less accountability — all of which would have a doubtful impact on increasing public confidence that their privacy is being protected.
Ah, what then, one asks. The President’s reply was reminiscent of the old Jack Benny routine when Benny, confronted by a robber demanding “your money or your life,” pauses at length before replying “I’m thinking, I’m thinking.” Thus:
I have instructed the intelligence community and the Attorney General to use this transition period to develop options for a new approach that can match the capabilities and fill the gaps that the Section 215 program was designed to address without the government holding this metadata itself. They will report back to me with options for alternative approaches before the program comes up for reauthorization on March 28th. And during this period, I will consult with the relevant committees in Congress to seek their views, and then seek congressional authorization for the new program as needed.
One does not envy the “intelligence community” and the Attorney General the task of finding in the next few weeks a solution that has eluded the government for the past several months. In the end, the “transition” may well resemble the notorious Bridge to Nowhere.
In the meantime, the President announced, as a “First Step,” two measures that appear to be more cosmetic than substantive. One measure was to direct that “Effective immediately, we will only pursue phone calls that are two steps removed from a number associated with a terrorist organization instead of the current three.” As explained in Blog 24, Part I, the “third step” was only used in a very few instances and there is no evidence that it was associated with abuse of any sort. On the other hand, intelligence officials appear to acknowledge that it was of only marginal importance.
The second measure was to direct 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 the case of a true emergency.” Under current practice, however, a query is made only after supervisory NSA officials certify that it meets the standard of a “reasonable, articulable suspicion” that it is associated with a foreign terrorist organization. The President did not suggest a change in the standard (to e.g. “probable cause”) and it is unlikely that the FISA Court will reach different conclusions as to the need for particular queries. The principal concern of intelligence officials is the delay that would result from seeking court orders. Recognizing this concern, the President suggested an exception in the case of a “true emergency.” As critics have pointed out, however, the President did not attempt to define a true emergency or by whom its existence would be determined.
Both the President’s speech and the commentary that followed it ignored a fundamental point: The only genuine threat to privacy exists not when numbers are merely collected and compared with other numbers, but only after a number is “tipped” to the FBI for investigation. As described in the report of the President’s advisory panel:
In 2012, NSA’s 288 queries resulted in a total of twelve “tips” to the FBI that called for further investigation. If the FBI investigates a telephone number or other identifier tipped to it through the section 215 program, it must rely on other information to identify the individual subscribers of any of the numbers retrieved. If, through further investigation, the FBI is able to develop probable cause to believe that an identifier in the United States is conspiring with a person engaged in terrorist activity, it can then seek an order from the FISC authorizing it to intercept the contents of future communications to and from that telephone number.
If one is seriously concerned about privacy, the law might be amended to confirm expressly that the NSA has no authority to determine the identity of subscribers and that it must obtain a court order before referring the numbers to the FBI to do so (and to investigate further.) On the basis of available evidence, RINOcracy.com does not believe that such a change is necessary and we are concerned about the delay that it might entail. We point out, however, that if additional measures are deemed necessary to protect privacy, that is a point on which discussion should be focused.
RINOs may well have differing views as to the balance to be struck between national security and privacy. However that may, they will do a service by viewing with a critical eye the pronouncements of the Administration, Congress and the media.