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Posted by on Jan 17, 2014 in Law, Politics, Society, Terrorism | 5 comments

Obama’s NSA Reforms: Half A Loaf

It is said that half a loaf is better than none. More on that in a bit.

Before the President’s presentation on NSA reforms, I wrote down a number of issues, each of which could be answered yes, no, or limited. Here is my list, with the short answers. More in depth comes after.

1. Appointment/Confirmation of FISA judges by someone other than Chief Justice: No.
2. Judicial review/approval for issuance of National Security Letters: No.
3. Public Disclosure of FISA court opinions: Limited.
4. Addition of a Privacy Advocate before FISA courts: Limited.
5. Private Storage of section 215 data: Yes.
6. Warrant for government access to section 215 data: Limited.
7. Changes to foreign surveillance: Limited.

Others may have looked for other things or may disagree with how I designate yes, no or limited. Bless you if you do; this is just my approach. Now some additional depth.

National Security Letters. The President did allow for continuing conversation with Congress on National Security Letters. He also called for additional transparency. Specifically he called for an end to indefinite secrecy and wants it time limited. He also responded to corporate requests that companies have increased ability to disclose NSL’s and their responses. The real key, however, is judicial review, and that did not change other than getting punted to Congress which is remarkably unlikely to make any change.

FISA Court Transparency. On the issue of making FISA court opinions public, the answer of “limited” would have been “very limited” if I had given myself that option. What he said is that the Justice Department, in coordination with the court would review the court’s opinions and report to the President and Congress. There was no promise of release of any opinions going forward. While it is nice to know that certain members of Congress and the White House will be able to review select opinions picked by the Attorney General, that strikes me as less than transparency. The idea of having secret laws and/or secret interpretations of laws that the people don’t know about has always struck me as troublesome in an ostensibly open society.

Privacy Advocate. Having a privacy advocate also got a “limited” response. This is because of the caveat that such advocates would be permitted to comment on “significant cases”. There was no explanation of what constitutes a “significant case”, who gets to make that determination or why the presence of privacy advocates should be limited to only select cases.

Private Storage of Meta-Data. On moving to private storage of section 215 data (telephony meta-data), this is in transition and awaits further recommendations on how to achieve it, but there seems to be a commitment to doing it.

Warrant Requirement. Whether a warrant would be required for government access to section 215 data may be a “No” in the minds of some, though I gave it a “limited.” What was actually said was that it would require a judicial “finding” except in cases of “true emergency”. The legal issue is that a “judicial finding” can mean a lot of things, many of which are very different from warrant standards. What constitutes a “true emergency” is also not defined. It still gets a “limited” from me because it is a step forward. My opinion is tempered by saying that I remain skeptical about whether the privately held data, subject to some sort of undefined judicial finding for access meets Constitutional muster.

Foreign Intelligence. On foreign intelligence, the President gave comfort to heads of state of our friendliest allies. There wasn’t much more that was specific though there were general assurances to ordinary citizens of foreign nations that we would only search for security purposes and would not generally invade their privacy. That strikes me as only as good as the willingness of foreign nationals to believe it. I suspect that belief factor to be relatively low, but will wait for foreign reaction.

Closing Thoughts. Is half a loaf better than none? I think both yes and no. On one hand issues were recognized publicly. Certain processes were amended, though mostly in a limited or very limited manner. The ball was inched forward in that regard. The down side of half a loaf is a false sense of security, believing that more was accomplished than really happened. General Michael Hayden, appearing on Morning Joe earlier today, said that the President’s job was to continue the surveillance programs with little change, but to increase the people’s trust in the programs and confidence in transparency and their privacy being protected. That’s paraphrasing the General. And, that’s what I think the President tried to do for the most part.

One takeaway that jumped out from the speech and the reforms announced or proposed. The wealthy and the powerful got concerns addressed. Friendly heads of state got their concerns addressed. Corporations got relief from some of their principal concerns about National Security Letters. There was far less concern from my perspective for the ordinary citizen.