xPost from BOG: Transcript of the NSA Surveillance Portion of my 6/9-10/13 show

[stevenleser]

http://steveleser.blogspot.com/2013/06/transcript-of-nsa-surveillance-portion.html

What is the Truth and Full Story about the NSA Surveillance scandal that isn’t being reported anywhere else?

Well, in case you haven’t heard, a June 5th article by Glenn Greenwald in the UK Guardian purports to break the story on an NSA Surveillance scandal that per a FISA court warrant, Verizon is providing the NSA the metadata calling records of all of its customers to include originating number, destination number and date and time of the call. Not the actual calls themselves, just the metadata information about the calls.

Immediately you had a blowup of outrage in the media and the blogosphere that this was some kind of new and horrible thing against our privacy and fourth amendment rights by President Obama. Another take was that he had gone back on his promise to make a change on this from the Bush administration.

One of the problems with this so called scandal is that the reporting by Greenwald was woefully incomplete as to the history of this kind of surveillance and I am not just talking about the Bush administration aspect of it. Greenwald’s omissions in this latest article extend to his own prior coverage of NSA surveillance and to administrations before George W. Bush. Greenwald provided less than 15% of the facts that the public needs to be fully informed about what is going on here.

To really understand what this is about and whether the Obama administration did anything wrong in this situation, you have to start at the beginning. I mark the beginning as May 18, 1977, the day Ted Kennedy submitted the FISA bill to the Senate. The FISA bill, also known as the Foreign Intelligence Surveillance Act is describe in Wikipedia as prescribing procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" which may include American citizens and permanent residents suspected of espionage or terrorism. In practice, it sets up secret courts through which intelligence agencies can obtain warrants for surveillance of individuals and groups suspected of engaging in any kind of espionage and foreign sponsored or connected terrorist activities harmful to US National Security.

Six Democrats and three Republicans cosponsored the bill and it was signed into law by President Jimmy Carter October 25th, 1978.

Hearing about FISA in a vacuum without any other information would probably cause most people to believe that FISA has the strong potential to violate the fourth amendment protections against unreasonable search and seizure. In fact, FISA was created to strengthen the fourth amendment and I will explain how.

FISA was created by Ted Kennedy for two reasons. First, it was created as a response to President Nixon using warrantless wiretaps and other searches to target political opponents and activist groups. The other reason it was created was made clear by one of the US Court of appeals decisions that affirmed the constitutionality of FISA, and that is the 1984 US v Duggan decision. Part of the Duggan decision reads:

Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.

The Duggan decision goes on to list six or seven other appeals court decisions where courts concluded that the President has the inherent power to conduct this kind of warrantless electronic surveillance to collect foreign intelligence information.

Senator Kennedy and President Carter did not like the idea of warrantless wiretapping even though it was judged in the case of foreign espionage and terrorism to be Constitutional …so they created FISA which requires the Justice Department and intelligence agencies of the executive branch to get a judge to sign off on a warrant in order to conduct these surveillances. It also gives a number of congressional committees the ability to look over these warrants.

Critics point out that the judges almost always sign off on FISA warrants. That’s right. They sign off because as pointed out in the Duggan decision, appeals courts have already ruled many times that the President has the right to conduct this surveillance and that this surveillance does not violate the fourth amendment provided that the ultimate target of the investigation is a foreign sponsored entity or terrorist organization. FISA does provide additional rules as to how these activities are to be done and also restricts how long the justice department and intelligence agencies can hold onto the acquired information before they must dispose of it.

So to review, the FISA law was created because before FISA, appeals courts had already ruled that Presidents could conduct this surveillance without a warrant and FISA finally brought some level of legislative and judicial branch oversight to these activities. Now for the first time, the executive branch could not legally conduct frivolous or abusive surveillance of people and groups without the other branches of government finding out and potentially taking action.

Now, let’s fast forward to the administration of George W. Bush.

After 9/11 President George W. Bush issued an executive order directing the NSA to start conducting wiretaps and other surveillance without a warrant via FISA or otherwise.

Many of us objected to the Bush administrations warrantless wiretapping program throughout Bush’s time in office. I wrote a number of articles attacking the practice including one in October of 2007 were I called for the Bush administration to go back to using FISA courts and suggested that the NSA, FBI and CIA should push back on any requests to perform surveillance without a FISA warrant.

Bush claimed that he had wartime powers to conduct warrantless wiretapping, but on March 31, 2010 a Federal Appeals court ruled NSA's warrantless wiretapping of an Islamic charity's lawyers in 2004 was illegal because it violated FISA and awarded that charity $2.5 million dollars in damages plus attorney’s fees. If you want to look it up, you will ironically note that the name of the case is Al-Haramain Islamic Foundation v. Obama because even though the warrantless surveillance took place in 2004, by the time the appeal came, Bush was no longer in office.

Speaking of which:

When campaigning for President in 2008, then senator Obama vigorously attacked President Bush’s warrantless wiretapping program and vowed to stop the practice. That is exactly what he did. President Obama returned to the policies before President Bush of using the Ted Kennedy and Jimmy Carter FISA law to obtain warrants wherever this kind of surveillance would be performed.

The other important part of history is that since the September 11, 2001 attacks, the kinds of wide-reaching surveillances of phone records, email and internet postings noted by Greenwald in his article of a few days ago has been constantly going on. This is not new. It has been reported on periodically including an article by Greenwald himself back in October of 2009. Greenwald penned an October 6, 2009 article in Salon titled “The joint Post/Obama defense of the Patriot Act and FISA: where he talks about the Obama administration’s use of FISA warrants that may or may not have led to the dismantling of a significant terrorist plot to bomb the New York City Subways.

There is an October 18 2007 article in NPR by Eric Weiner titled “The Foreign Service Intelligence Act: A Primer” that discusses the Bush administration’s desire not to have to get a FISA warrant to get wiretaps. A May 11 2006 USA Today article by Leslie Cauley is titled “The NSA has a massive database of Americans’ phone calls” and it talks about how what Greenwald reported a few days ago as some sort of revelation has been going on for twelve years.

My point by noting these articles, and there are hundreds, perhaps thousands more where they came from steadily since the end of 2001, is that this is not new stuff. It shouldn’t shock anyone. Journalists and pundits to include Greenwald himself shouldn’t be presenting what Greenwald wrote as new or shocking.

I’m really disappointed at my fellow journalists and pundits in general with the coverage of this story. When you understand the history of when and why FISA came into being and when you understand appeals court rulings regarding Presidential powers with regards to surveillance aimed at foreign directed entities and terrorist groups. When you understand those things and you combine them with the history since 9/11 of the Bush administration attempt to ignore FISA and wiretap without a warrant, a practice that the Obama administration has completely renounced, I think you are left with only one possible conclusion.

President Obama did nothing wrong and there is no scandal here, at least not in terms of the administration. The reporting of this issue by Greenwald and other journalists and pundits, well there you might have a scandal. The history and context matters and not providing those things in this situation completely alters the meaning of the story and is a veritable journalistic crime. Greenwald should be ashamed of himself, and many other journalists and pundits out there should also feel ashamed of themselves.

We can have a good national conversation about whether FISA should still be the law of the land. Understand though that if we repeal it and don’t replace it with anything, existing legal decisions and judicial review would mean that once again warrantless wiretapping ultimately aimed at foreign groups and terrorist organizations would be legal. Ted Kennedy and Jimmy Carter knew what they were doing when they created and passed FISA. Any law can be improved and FISA is no exception, but FISA is a big improvement compared to the situation before it was passed in 1978 and it is a big improvement over the Bush administration’s attempts to go back to warrantless wiretapping.

There is another point that I think we should note. The FISA warrant in question discussed in Greenwald’s article allows the NSA to collect phone records for three months, from April 25th until July 19th. I’m surprised no one has made the obvious correlation to how close the start date is to the Boston Marathon bombings which occurred in April 15th just ten days before. I’m making an educated guess here so you all can determine how much you think this makes sense to you, but it seems likely to me that in the wake of the Boston bombing, someone in the justice department asked the NSA to gather this information with the intent of finding patterns of telephone chatter between as yet undiscovered terrorist cells here in the US who might be discussing the bombing. The timing seems too close to be coincidence.

If true, it needs to be pointed out that Greenwald’s article certainly disrupted that effort.

Getting back to the Obama administration, I can envision what happened when President Obama took office in 2009. I’m sure there was a discussion with white house counsel and the Attorney General where national security surveillance was brought up and the President probably asked a question along the lines of “OK, we want to be better than the Bush administration was on this. We certainly don’t want to wiretap without a warrant. What is the constitutionally accepted remedy that respects the fourth amendment.” And the answer from any lawyer familiar with the law and the history of this issue would say the remedy is to go back to the law that Ted Kennedy and Jimmy Carter enacted to provide oversight over these kinds of activities. Go back to getting FISA warrants for them. In fact when Ted Kennedy died, the American Civil Liberties Union put out a glowing press release about him, saying:

The civil rights community lost one of its giants today. Senator Kennedy’s lifelong commitment to racial justice and the rule of law has been an inspiration to the ACLU and Americans everywhere,” said Anthony D. Romero, Executive Director of the American Civil Liberties Union. “On a personal level, we will miss his wise counsel and encouragement in the ongoing struggle to preserve civil liberties. Senator Kennedy’s legacy will live on to inspire generations of civil libertarians to come.”

In this same press release honoring Kennedy, among the legislative accomplishments the ACLU praised from Senator Kennedy as protecting Civil Liberties was FISA. It’s therefore also disappointing to note that the ACLU is getting after President Obama for using… wait for it… yes, FISA.

Folks over at the ACLU, I love you guys, but you made a mistake here. It’s OK, you rarely make mistakes, you’re entitled to a few, this is definitely one of them and you are in good company. Most of the folks that consider themselves civil libertarians missed it on this one and failed to take into account the history and judicial decisions and review that frame this issue.

As the beginning of this segment I accused the coverage of this issue by my fellow journalists and pundits as woefully incomplete and I promised to give you all the full story and that once you heard it, you would think differently about this issue. Now that you have heard what I had to say, I hope you agree and I hope you all think I kept that promise. Feel free to let me know. Write to me at [e-mail] and tell me what you think of this issue and my coverage of it.
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Full show with audio at: http://www.blogtalkradio.com/lesersense/2013/06/09/making-sense-with-steve-leser--nsa-spying-war-on-women

[sheshe2]

1. Thanks for the cross post, Steve.

The FISA warrant in question discussed in Greenwald’s article allows the NSA to collect phone records for three months, from April 25th until July 19th. I’m surprised no one has made the obvious correlation to how close the start date is to the Boston Marathon bombings which occurred in April 15th just ten days before. I’m making an educated guess here so you all can determine how much you think this makes sense to you, but it seems likely to me that in the wake of the Boston bombing, someone in the justice department asked the NSA to gather this information with the intent of finding patterns of telephone chatter between as yet undiscovered terrorist cells here in the US who might be discussing the bombing. The timing seems too close to be coincidence.

If true, it needs to be pointed out that Greenwald’s article certainly disrupted that effort.

The connection to the Boston bombing (your educated guess) fits like a glove. If the investigation is disrupted or compromised and innocent lives are put in harms way, then I damn the person responsible.

Greenwald will have blood on his hands, and Bostonian's will be denied the truth. He did it for his Ego. He posted a misleading story that were absent of the facts.

The hero worship for Greenwald appalls me. He cares nothing about the truth and willing to sacrifice the protections of this country for his personal gain. It was about fame and accolades, never the truth.

Once again, thank you.

[stevenleser]

2. You're welcome!

[freshwest]

10. Thanks for a great show and discussion and the transcript! Will get to it tomorrow.

[JaneyVee]

14. Obama actually switched his stance on FISA while he was still a candidate, in July 2008

http://www.nytimes.com/2008/07/02/us/politics/02fisa.html

[Cha]

3. I'm still reading.. I keep getting interrupted!

But, I do really appreciate it.

President Obama did nothing wrong and there is no scandal here, at least not in terms of the administration. The reporting of this issue by Greenwald and other journalists and pundits, well there you might have a scandal. The history and context matters and not providing those things in this situation completely alters the meaning of the story and is a veritable journalistic crime. Greenwald should be ashamed of himself, and many other journalists and pundits out there should also feel ashamed of themselves.

Like they give a shit.. they never have to be held accountable to anything. they always seem to have a built in donor base. But, would the donations be as many if the context and history were related in their big story!!!?

thanks Steve!

[LeftInTX]

4. Kick!! And thank you Steven!

[Control-Z]

5. K&R. A must read! (nt)

[JDPriestly]

6. Read this Atlantic article.

http://www.democraticunderground.com/10022973186

FISA was not written for an era in which computers have the power they have today.

FISA is no longer sufficient to protect our freedom. We've come a long way since 1977.

The ability to collect and analyze massive amounts of data did not exist in 1977.

And we didn't have drones in 1977.

We are in a very different world. 1977 is as far away in terms of technology as the Wright Brothers were from the planes of WWII.

Sorry, but these programs are not harmless or comparable to anything that existed in 1977.

The court order I saw from the Guardian article by Greenwald that set this scandal off was just a blanket order with no regard for due process. This is a far cry from what was intended with FISA in my opinion.

[pnwmom]

8. And the ideal of almost total freedom that we had when the Constitution was written

doesn't fit with the world today, when nuclear bombs can be carried in backpacks and people easily cross oceans to attack us.

[JDPriestly]

9. Are you in favor of doing away with the Bill of Rights?

Because your post seems to suggest that.

What would your version of the Bill of Rights look like?

Could you write something that guarantees less than the total freedom that we had when the Constitution was written and submit it to DUers for their opinions?

I'd like to see it because I like the one we have and I think we should defend it.

In addition, I would like to point out that, if the majority of Americans agree with you, then we should formally change our Constitution. I disagree with you and want to keep our Constitution the way it is with one change and that is to eliminate corporate influence in elections. But that would not be nearly the huge, fundamental change that would occur if we changed it so that it did not totally protect our freedom of speech, press, our right to be free from blanket searches of our calls and e-mails and other electronic communications.

The Bill of Rights pretty much guarantees only the most basic rights. It is not overdone.

[pnwmom]

11. No. I'm in favor of tracking phone numbers and if links to terrorists appear,

going to a judge, providing probable cause and getting a warrant seeking a wiretap or further information.

I disagree with you that this conflicts with our Constitution.

[snappyturtle]

26. The government has that ability withoout kettling the rest of us. This willy nilly

collection of media data on millions of citizens is over kill.

[pnwmom]

28. No, it doesn't, since the govt. doesn't know BEFOREHAND who might be connected

to terrorists. The computers sort through all the phone numbers, including yours and mine, looking for connections and patterns that could associate users with terrorists. If connections are found, then approval must be sought from the judge for further investigation.

[snappyturtle]

29. Please, look. All they have to do is get a warrant for the phone records of their suspect.

They don't need to have pre-mined my number, or yours, in case they may need it in the future.
And, think about it....what terrorist in this environment is going to use a traceable phone to begin with? This is not news to the terrorists that we do this stuff. imho

[stevenleser]

31. They dont have a suspect yet. They are looking for suspects. nt

[snappyturtle]

33. Oh, that makes me feel better.

I don't know how to explain my disgust, distaste, and most of all my fear of this blanket surveiling without using an example. I know that I'm no way affiliated with what today is regarded as a terrorist unless, of course, I have an innocent and unknown association with one and then I could become a suspect (disgusting). But, let's say the next regime decides the new terrorist is an OWS sympathizer (which I am)....what we're allowing today may be bigger trouble in the future.

I regard my phone number a belonging that I am not offering up in surrender of the 4th Amendment. If the gov't would get off it's butt and consolidate all the various departments' and agencies' data they have my phone number which I voluntarily gave to them for their use at the IRS and Social Security, et. al. However, I object to them taking it to put me in the possible suspect file. That taking is an unlawful seizure and obstacle to my pursuit of happiness. imho

[stevenleser]

34. Domestic political activities are not part of the foreign espionage or terror exemption

If country X started funding OWS with the intent of overthrowing the government, then the government would have the right to use FISA warrants for searches and seizures aimed at OWS.

I talk more about why these kinds of surveillance are a 4th amendment exception in my upcoming show.

[snappyturtle]

35. What if I was an OWS sympathizer before country x's involvement?

What if I had no knowledge of the funding by country x? I could become a suspect at great expense to myself for essentially being a patriot. NO (pre) surveillance. Let the gov't do it the ol' fashioned way.

[stevenleser]

37. So let's parse it out

You are a member of Organization A while Organization A is acting lawfully within the Constitution.

Organization A decides to morph into an organization that is working to overthrow the Constitution and the government and in doing so obtains money and/or arms support from a country or external group that is hostile to us in that effort.

The 4th amendment exemptions would apply, and I think that is appropriate. I discuss why more in my show this weekend.

[snappyturtle]

36. I just re-read what you wrote. It hit me in another way:

Are you saying that domestic political activities are fair game? If so, then I am also losing my right to free speech. This just keeps getting better and better.

[stevenleser]

38. Nope, I am not saying that. nt

[snappyturtle]

39. My bad. I shouldn't try listening to immigration reform discussion on teevee

and read at the same time. I'm so embarrassed!

[reusrename]

44. Kind of far fetched.

How about country X starts funding congress in order to overthrow the govenment?

Oh, sorry, that's perfectly legal so long as one of the people involved is a corporation.

[stevenleser]

12. That is a totally different conversation from what we are seeing from Obama critics but...

one that is very worth having as I noted in my piece. We can and should have a national conversation about FISA but as I also noted in my piece, beware. If we repeal FISA today without replacing it with anything, warrantless wiretapping by the executive branch would be legal.

[ananda]

13. So basically FISA needs to be modified and modernized ...

... for a more extensive high tech datamining capability.

[stevenleser]

15. I don't think creating straw men is the way to discuss anything. That person did not say that. nt

[Sheepshank]

17. *never mind*

delete

[pnwmom]

7. Bookmarking. Thank you, Steven! n/t

[stevenleser]

16. You're welcome!

[SidDithers]

18. DU Rec...nt

Sid

[Sheepshank]

19. The truth of the matter.........

...won't fit everyones paradigm and subsequent stance already established and touted loudly.

It's too bad, really.

[Jamaal510]

20. It was actually my first time listening to your show

yesterday. You really hit it out of the park and cut through the madness on the NSA non-scandal. I'm disappointed myself that not only so many DUers got suckered into this false outrage, but also many media pundits (on both sides). People need to let all the facts come in before rushing to conclusions.

[msanthrope]

21. Thought you might enjoy this blast from the past on Greenwald....

http://www.democraticunderground.com/1002101211

[stevenleser]

22. Wow, so he is trying to accuse others of something he himself did. Interesting. I also

was curious to note his support for Bush going to war in Iraq.

This is an interesting fellow, this Greenwald.

[msanthrope]

23. Well, not only did, but he truly managed to screw over his client in the process...

one of the issues on appeal was how Greenwald managed to violate attorney-client work product privilege. A pretty incompetent move, IMHO.

[JI7]

32. looks like someone didn't notice that was from over a year ago

[DevonRex]

24. Glenn Greenwald actually wrote about it before but now acts outraged. Go figure.

And he's asking for donations for himself on the website! Hmm. Wonder if the two things are related.

Thank you for the excellent background. There's a lot of information in there.

[msanthrope]

25. Hong Kong costs. The Mira isn't cheap. nt

[snagglepuss]

27. to read later

[stevenleser]

30. Two days later after this post and no criticism. I find that fascinating. You would think that those

people claiming with such enthusiasm that terrible things were done would take this opportunity to attack some of what I said on the air.

The only response I have received in another thread from one of those folks criticizing the President on this is that they read and listened and that all of my facts are right but that they are still upset about it.

[NoMoreWarNow]

40. for one thing, you are wrong about the date of the FISA warrant having to do with the Boston bombing

since Feinstein said they have been renewing this same warrant for a long time now, every six months or so.

The other thing is you seem to be content that because a FISA warrant is issued, everything is all hunky-dory. I think there are still issues about how far this program goes, and is it truly constitutional.

One big problem is we don't even know the extent of what is going on.

I agree that the Greenwald piece is kind of vague though, about all this. Overall, I'm not sure I trust any of them-- Greenwald or Snowden or the NSA.

[stevenleser]

41. Three months worth of surveillance renewed every six months or so?

Other than that, as I noted it was an educated guess. I present my guesses as exactly that and my facts as facts.

The reason I am barely content when a FISA warrant is issued is because it has oversight in both the judicial branch and the legislative branch. In terms of the legislative branch, committee members of both parties get oversight.

The Constitutionality of FISA is pretty clear. Before its existence, warrantless wiretapping in the same cases was upheld dozens of times and since FISA was passed, it has been upheld every single time it made its way to federal appeals courts.

[redqueen]

42. Perhaps engaging with you about the facts of the matter is too much to expect.

There are childish insults and lots of nasty adjectives to be used, that seems to be very popular.

[stevenleser]

43. I've always felt that Liberalism and Progressivism were first and foremost fact based ideologies

It's OK to feel a lot of emotions about an issue, but the facts have to be there first.

The folks here with whom I seem to be disagreeing have gone right to the emotional part and disregarded the facts. Even worse, when the facts are pointed out, they say they disagree without having anything to back them up.

What is sad about that is that DU and much of the left in this country could probably coalesce around a suggestion that what is currently happening is less than ideal and we need to have a conversation about what should really be the law and the kinds of things a President should do in these cases.

But we cannot get there, because certain folks can't seem to get beyond the visceral emotional and fact-challenged reaction they have to information we should all have known about twelve years ago.

[stevenleser]

45. Kick nt

[Benton D Struckcheon]

46. The legal underpinnings aren't rock solid, and will be subject to challenge

There was a dissenting opinion written in the case that underlies the justification for metadata not being protected by the Fourth Amendment, written by Justices Stewart and Brennan. Their logic here:

The numbers dialed from a private telephone -- although certainly more prosaic than the conversation itself -- are not without "content." Most private telephone subscribers may have their own numbers listed in a publicly distributed directory, but I doubt there are any who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person's life.
I respectfully dissent.

Those of us who think vacuuming up metadata wholesale is not a good thing are basing it on that logic: that it would "reveal the most intimate details of a person's life."
Further, there is a second technologically related problem here.
At the time of this ruling, which was Smith v Maryland, the only thing the pen register which was the point of controversy in that case could do was record the phone numbers that had been dialed from Smith's home phone. As noted in the decision, the pen register couldn't tell the police anything about the call: whether it had been completed, and if so, how long it had been, for instance.
The metadata being collected presently by the NSA has that data. Call records obtained using present technology would be able to tell if a call was completed and if completed how long it went on for.
I am firmly of the belief this practice needs to be brought before the court again, as is presently being done by the ACLU, so that it can be re-argued in the light of present-day technology. I think the results would be different. That dissent brought up a legitimate concern, and the technology now present brings up the question of sheer scale: a pen register was very limited in the scale and scope of what it could capture. The scope of present day technology is much larger, and the scale of the data is certainly also much larger. It's like the difference between a wooden bridge over a creek and a suspension bridge over a bay or major river.

[stevenleser]

47. Smith v. Maryland does not involve a National Security Issue. The rules are completely different.

The appeals courts have consistently held that the executive branch's need to safeguard the country provides it an exception to the fourth amendment in matters of national security like foreign espionage or terrorism and that goes back to well before 9/11.

US v Duggan is the case you should read.

[Benton D Struckcheon]

48. Just FYI, I am reading it now,

it's long, so it's taking a while.
I appreciate your fact-based approach, just to let you know. While I am (for now, anyway) on the side of those who want to see this be more restricted, I find the yelling and screaming that goes on about this to be just silly. The SC's Voting Rights decision had a lot more effect on the real world and our rights in the real world than this does.