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NSA Defender Explains How Even Though NSA Spies On Americans, It’s OK To Say They Don’t

Orwell Would Be Proud

By Mike Masnick | Techdirt | February 6, 2014

Benjamin Wittes of the Brooking Institution has become the go-to non-government NSA apologist. One of his most recent articles is a true work of rhetorical artistry, in which he tries to explain why saying “the NSA doesn’t spy on Americans” is acceptable shorthand for the fact that the NSA spies on pretty much every American. It’s a master class in political doubletalk. First, it’s the law’s fault. The law, you see, is too complicated for mere mortals not working for the NSA to understand, so that makes it okay to lie:

The law is so dense and so complicated that it cannot be accurately summarized at a level a citizen can reasonably process.

Any effort to summarize the relevant law necessarily ignores themes sufficiently important to its architecture that the reductionism will partake of serious inaccuracy. The person who told my friend that NSA does not spy on Americans was not lying. He or she was highlighting a crucially-important limitation on NSA’s authority vis a vis US persons. The law and the relevant regulations all contain significant territorial restrictions and significant protections for US persons overseas as well—all designed to separate the foreign intelligence mission of NSA from both domestic intelligence and domestic law enforcement. It’s a sincere and pervasive effort. “We don’t spy on Americans” is a common shorthand for a wealth of law and practice that really and meaningfully keeps the agency out of the business of being a covert domestic intelligence agency.

Got that? Because there are some limitations on all the spying they do on Americans, and it’s too complicated to understand those limitations, so it’s okay to lie and say they don’t spy on Americans. Of course, in the very next paragraph, Wittes tries to effectively brush away the massive amount of surveillance done on Americans.

NSA, after all, does spy on individual Americans with an order from the FISC. It does, moreover, capture all domestic telephony metadata. And most importantly, it does routinely capture communications between Americans and the targets of its surveillance and incidentally capture other material its systems scoop up overseas—subject to rules that limit the retention and processing of US person information. In other words, to say that NSA does not spy on Americans emphatically does not mean, as a reasonable student or citizen might expect it to mean, that the agency does not regularly acquire and process the communications of Americans.

Of course, as Jameel Jaffer from the ACLU points out, this is all nonsense because it’s a simple fact that the NSA does do surveillance on Americans, and to claim otherwise is not acceptable shorthand. It’s a lie. And while Wittes then tries to obfuscate things even more by trying and purposely failing to come up with a concise way of summarizing what the NSA does, Jaffer helps out with a few workable suggestions:

This is nonsense. Perhaps Ben’s right that it’s difficult to come up with a single sentence, or even a single paragraph, that clearly and comprehensively describes the nature and extent of the NSA’s surveillance of Americans. (Can you describe any federal agency’s functions in a single, comprehensive paragraph?) But it’s not difficult to come up with a sentence more accurate than “The NSA doesn’t spy on Americans.” Try this one: “The NSA spies on Americans.” Or this one: “The NSA collects a huge amount of information about Americans’ communications and in many contexts it collects the communications themselves.” Or this one: “The NSA is sometimes described as a foreign-intelligence agency but this label should not obscure the fact that a large part of the agency’s energy is dedicated to collecting and analyzing information about Americans.”

Jaffer further points out that Wittes’s suggestion that those who claim the NSA doesn’t spy on Americans are really trying to tell the truth through shorthand, is actually misleading. As Jaffer points out:

Any official who says the NSA isn’t spying on Americans is seeking to mislead.

And anyone defending that statement is trying to support that fundamental attempt to mislead.

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February 6, 2014 Posted by | Civil Liberties, Deception, Full Spectrum Dominance | , , , , , | Leave a comment

Obama Regime Files Midnight Brief Defending Secrecy Surrounding “Targeted Killing”

ACLU | June 21, 2012

Just before a midnight deadline, the Obama administration filed a 50-page brief this evening defending the secrecy surrounding the “targeted killing” program.  The administration writes: “Whether or not the CIA has the authority to be, or is in fact, directly involved in targeted lethal operations remains classified.”  The case concerns a Freedom of Information Act request filed by the ACLU last year for records concerning the targeted killing program generally as well as the killing of three American citizens in Yemen last year.

The following can be attributed to Jameel Jaffer, Deputy Legal Director of the ACLU:

“The notion that the CIA’s targeted killing program is still a secret is beyond absurd.  Senior officials have discussed it, both on the record and off.  They have taken credit for its putative successes, professed it to be legal, and dismissed concerns about civilian casualties.  If they can make these claims to the media, they can answer requests under the Freedom of Information Act.  The public is entitled to know more about the legal authority the administration is claiming and the way that the administration is using it.  The administration should release the legal memos that purportedly justify the targeted killing program, and it should release more information about the process by which individuals, including American citizens, are added to government kill lists.  It should also release the evidence that led the administration to kill three Americans, including a 16-year-old boy, last year.”

“We continue to have profound concerns with the power the administration is claiming and with the proposition that the President should be permitted to exercise this power without oversight by the courts. That the administration believes a power so sweeping should be exercised in secret is astounding.”

Today’s filing comes after the government sought several extensions to respond to the ACLU’s lawsuit.  In its last request for an extension, the government stated to the court that it needed further time to allow for “deliberations at the highest levels of the Executive Branch.”

The government’s brief can be found here:
www.aclu.org/files/assets/https___ecf.nysd_.uscourts.gov_cgi-bin_show_temp.pl_file10176016-0–17573.pdf

CONTACT: ACLU national, media@aclu.org

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June 21, 2012 Posted by | Civil Liberties, Progressive Hypocrite | , , , , | Leave a comment

The ACLU and Obama’s Assassination Program

By Binoy Kampmark | Dissident Voice | April 2, 2012

Due process and judicial process are not one and the same.  The Founders weren’t picky.  Trial by jury, trial by fire, rock-paper-scissors – who cares?

— Stephen Colbert, March 6, 2012

The policies around the assassination program of the United States are surreal.

Trafficking in murder while espousing noble things is a habit regimes fall into, though the more sinister ones tend to use weasel words to conceal that fact.  The Obama administration, having long abandoned its role as the knight in shining armour, is now rusting away with the effects of realpolitik.

The ACLU has been trying through Freedom of Information channels to force a disclosure of the guidelines the administration uses in targeting foreign nationals or American citizens through the infamous drone program that has become de rigueur in military circles.  The CIA has insisted that it cannot confirm or deny the existence or non-existence of those records that cover the targeting of individuals, or whether it is even employing such vehicles in the first place.  They are “intelligence sources and methods information that is protected from disclosure by section 6 of the CIA Act of 1949, as amended”. In such circles, the response is termed the Glomar response, after the CIA’s refusal in 1976 to confirm or deny its relationship with Glomar Explorer, a drill ship created at the direction of Howard Hughes for the agency to recover the sunken Soviet submarine, the K-129.

In the words of Jameel Jaffer of the ACLU, as reported by Salon (March 26).  “At this point, the only consequence of pretending that it’s a secret program is that the courts don’t play a role in overseeing it.”  With the courts left out in the cold, the administration can run riot.  This, of course, is its self-appointed prerogative.

The Obama administration is engaging in a lexical game of murder, a game that has certainly silenced many of those who would have expressed outrage at the assortment of abuses perpetrated by the Bush administration.  Tinker with the words, and the result is considered perfectly justifiable in the name of a higher state interest.  This is Cheney with the gloss, Rumsfeld with the polish.  Adjust the terms of reference, and assassination is an entirely rum thing.

Obama’s front man in this entire business, in true tasteless fashion, is Eric Holder.  Instead of defending the law as is the incumbent duty of any Attorney General, he has a nasty tendency to get sick on it.  He brings in his broom to clean up, and in its place he leaves the slime of gibberish. At Northwestern University Law School, he clearly repudiated the position he had taken regarding the Bush administration, whose policies in the ‘war on terror’ had occasioned ‘needlessly abusive and unlawful practices’.  That, however, was in 2008.  The new Holder was a different beast, more prone to splitting hairs.  ‘Due process’ and ‘judicial process’, we are made to realise, ‘are not one and the same’. The President, according to Holder, is not required to seek permission from any court before targeting American citizens abroad (Washington Times, March 12).

Supposedly, the targeting of such individuals is constrained by guidelines.  The problem with such dangerous talk is that guidelines are merely points on paper, the scrawl of the moment. They have a tendency of disappearing as quickly as they appear.  These guidelines tend to revolve around the nature of the target (an operative of a terrorist group seeking to actively kill American citizens, for one; that the target poses an imminent threat to the US; that the capture of the target is impractical; and that the target is to be eliminated on the basis of ‘relevant law of war principles’ (Washington Times, March 12).  Such determinations do not lie in the legal domain.  They are rather matters of political expediency.

An administration up to its eyeballs with legal rhetoric is bound to eventually be told it has no clothes, that its efforts are simply acts of distortion.  The time it seems, courtesy of the ACLU’s efforts, is now.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. He can be reached at bkampmark@gmail.com

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April 2, 2012 Posted by | Civil Liberties, Deception, Progressive Hypocrite | , , , , | 2 Comments