Richard Clarke: Why you should worry about the NSA

[BlueCheese]

http://www.nydailynews.com/opinion/worry-nsa-article-1.1369705

Richard Clarke, top counter-terrorism official under Clinton and Bush Jr., until his strong criticisms of the latter forced him out of the administration, has an op-ed in the New York Daily News.

So, why is it that many Americans, including me, are so upset with the Obama administration gathering up telephone records? My concerns are twofold. First, the law under which President George W. Bush and now President Obama have acted was not intended to give the government records of all telephone calls. If that had been the intent, the law would have said that. It didn’t. Rather, the law envisioned the administration coming to a special court on a case-by-case basis to explain why it needed to have specific records. I am troubled by the precedent of stretching a law on domestic surveillance almost to the breaking point. On issues so fundamental to our civil liberties, elected leaders should not be so needlessly secretive.

We should worry about this program because government agencies, particularly the Federal Bureau of Investigation, have a well-established track record of overreaching, exceeding their authority and abusing the law. The FBI has used provisions of the Patriot Act, intended to combat terrorism, for purposes that greatly exceed congressional intent.

Clarke goes on to explain how Obama was likely convinced to approve continuing the program, and why the arguments he was given were wrong. He suggests that when it came time to make the decision, Obama only had pro-spying people consulting with him, without dissenting voices from people more attuned to civil liberties.

Edited for formatting.

[Tierra_y_Libertad]

1. Does Clarke have boxes in his garage? Do his neighbors like him?

Just giving the DUsnoops something to look for when they come to discredit him.

[QC]

6. I wonder if he has abandoned any ballerinas lately? n/t

[reformist2]

17. Well, *I* want to know about the stickers on his laptop. You can tell a lot about a person...

[QC]

18. And what about those cardboard boxes in his garage?

I know I could never trust anyone whose garage is not ready for a visit by Martha Stewart at all times.

It's amazing, isn't it, how desperate and transparent is the campaign to make this whole issue a matter of personality? Anything but the real issue, which is dragnet surveillance.

[carolinayellowdog]

43. deflect blame is the #1 objective of personality cultists--grasping at straws

Anyone obsessed with hero worship of one person will stop at nothing to deflect negative implications about that person by blaming another person, whether it's Clarke, Grayson, Snowden, or a typical progressive DUer-- principles mean nothing to personality cultists.

[leveymg]

52. I think Clarke has shown unusually good judgement for a long time - give him Clapper's job.

He's right again when all around him are drinking the Kool-aid.

[ReRe]

64. He wouldn't take it...

But he would sure be a good one to look at if we were to tear the place down and start over again, with a new, improved and REDUCED NSA.

[leveymg]

84. . . . And an accountable CIA.

[ReRe]

86. We really need to abolish something...

... but yeah, the CIA too and actually all secret intelligence offshoots. There's a bunch we don't even know about.

[hlthe2b]

16. I heard he was abrupt and failed to kneel down to pat the neighbor's dog on two occasions...

How could I believe a single thing that comes from such a "monster's" mouth?

[Fantastic Anarchist]

20. I heard he doesn't like petunias!

Fucking goddamned bastard!

He also didn't light a match after using the bathroom once. So says someone "in the know."

[Douglas Carpenter]

57. didn't he lie about his salary?

[Aerows]

58. I've heard it on rumor

that he failed to change the litter box on two occasions. He's not to be trusted!

[sabrina 1]

66. Is he in Hong Kong, has he EVER been in Hong Kong?

[Tierra_y_Libertad]

68. It's rumored that he rents a garage there to stash Hawaiin girlfriends and boxes.

[Ed Suspicious]

2. Sounds alot like Bush and the neocons on the Iraq invasion. History repeats itself.

He suggests that when it came time to make the decision, Obama only had pro-spying people consulting with him, without dissenting voices from people more attuned to civil liberties.

[Floyd_Gondolli]

11. Yes

Except without the, you know, actual invasion of a foreign country.

I know it's a minor detail.

Carry on.

[Ed Suspicious]

27. I think you missed the point I was trying to make. It was that when an executive is surrounded by

homogenous influences, the executive is likely to make decisions that reflect the advice of those who exert that particular flavor of influence.

This is similar to how the neocons influenced President Bush to invade a foreign country. Similarly there was little opposition to this idea in his administration.

[Floyd_Gondolli]

28. Thanks for clarifying

[Amonester]

88. Except that, they didn't quite influence dimson, since he wanted to avenge poppy...

Re: "Fuck Saddam, we're taking him out" & "Now, go and find me something, anything, that will allow us to do this" & "Saddam tried to killl my dad while he was visiting Koweit" ...

I'd say the chimp was leading the pack...

[East Coast Pirate]

72. Kennedy said he'd never make that mistake again

after the Bay of Pigs invasion.

[truebrit71]

3. Countdown to Clarke being thrown under the bus in 5...4....3...

....Is he a liar, an anti-Obama hater, a disgruntled former employee, he's mean to old people and he kicks puppies...which meme will the True Believers use on Richard Clarke?

[MNBrewer]

5. Yeah, he never REALLY loved Barack

Not like the BOG creatures do.

[cherokeeprogressive]

10. 2... 1... Right wing tool. LOL n/t

[limpyhobbler]

46. I heard he doesn't use deodorant. just sayin. hygiene is important.

[sabrina 1]

69. He can join Alan Grayson, Amy Goodman, Bernie Sanders who is on his way there if he can't explain

an article on his website.

It's not just crowded under the bus, they's no room anymore and they are all over the parking lot, those Liberals we used to love when Bush was in the WH.

[JoePhilly]

79. Why throw him under the bus? If you read the article, he supports the essential elements of

the programs.

The only thing he argues should be changed is who maintains the data. He says the telcos should, by law, store and maintain it, rather than have the government maintain a copy.

I posted about this below ...

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=3003221

[KittyWampus]

90. I had same comment. Most people making stupid, snide comments probably didn't read his article.

[JoePhilly]

92. YUP ... they saw the title and got excited, but then didn't read any of the details.

[KittyWampus]

89. Why would anyone throw him under the bus? He is well informed (unlike reactionary screamers),

doesn't recommend abolishing the NSA but revising laws as written and doesn't demonize Obama.

In other words, he is the antithesis to much of the crap spouted by some on DU right now.

[Politicalboi]

4. If Obama is being told we need these programs

What is HE supposed to do? Obama may not like nukes, can he get rid of ALL of our nukes? One minute he's a figurehead, next he personally is listening to our calls.

[MNBrewer]

7. Yeah, make up your mind

dude.

[WHEN CRABS ROAR]

33. The question is, is Obama capable of his own critical thinking on this matter?

He doesn't seem ignorant on the subject.

[totodeinhere]

50. He should think for himself and not necessarily buy what some of these people are saying.

And he should seek out other contrary opinions.

[JHB]

71. Evidently, wasn't enough rivalry in the 'team of rivals'

[forestpath]

8. Obama consulting PRO-spying people only means he heard what he wanted to hear.

[kenny blankenship]

61. Just like he surrounded himself with people partly to blame for the bank meltdown.

and got the bad advice he wanted from them. Kind of like how he also managed to poochscrew health care reform and Afghanistan...

[forestpath]

63. Exactly. He's shown over and over whose side he's on.

[felix_numinous]

9. K&R

These are the people we need to hear from right now. I am sad (and kind of amazed) that so much actually needs to be spelled out these days...

[avaistheone1]

12. I respect Richard Clarke. And his take may well be right.

If so Obama needs to make some major and serious corrections to our spy programs.

[cali]

13. the rabid attackers of the messenger who ignore the message will

stay away from this thread as if it's a hot stove that will scald them.

[ProSense]

15. Your posting here proves you wrong. n/t

[KittyWampus]

91. Did you even read his editorial? He doesn't begin to recommend dissolving the NSA. He has one

specific recommendation. He also doesn't demonize Obama.

He, unlike the braying, reactionary screamers, knows what he is talking about.

[ProSense]

14. I have

My concerns are twofold. First, the law under which President George W. Bush and now President Obama have acted was not intended to give the government records of all telephone calls. If that had been the intent, the law would have said that. It didn’t. Rather, the law envisioned the administration coming to a special court on a case-by-case basis to explain why it needed to have specific records.

<...>

If there had been a vocal and well-informed civil liberties advocate at the table, Obama might have been told that all those objections were either specious or easily addressed. Law already requires Internet service providers to store emails for years so that the government can look at them. An amendment to existing law could have extended that provision to telephone logs and given the companies a “safe harbor” provision so they would not be open to suits. The telephone companies could have been paid to maintain the records.

If the government wanted a particular set of records, it could tell the Foreign Intelligence Surveillance Court why — and then be granted permission to access those records directly from specially maintained company servers. The telephone companies would not have to know what data were being accessed. There are no technical disadvantages to doing it that way, although it might be more expensive.

...no problem with Clarke's assessment and expressed concerns. He is basing his opinion on the characterizations of the program, and this:

"the law envisioned the administration coming to a special court on a case-by-case basis to explain why it needed to have specific records."

...is exactly how the President describe the program (http://www.democraticunderground.com/10022965452)

Obama Administration Declassifies Details On “PRISM,” Blasts “Reckless” Media And Leakers.http://www.democraticunderground.com/10022972852

Clarke is also offering solutions.

[Autumn]

19. Richard Clarke laid it all out

recommended for an excellent read by a great man.

[think]

37. He sure did.

I'm so thankful he and others that have worked in this realm are stepping forward and speaking out. It speaks volumes as to the legitimacy and urgency of this matter.

[Autumn]

41. I had hoped he would say something and he sure told it

like it is. I have a lot of respect for that man.

[Laelth]

21. Wow! That's very cool.

People are feeling safe to talk about this. I see this as a significant, positive development.

-Laelth

[quinnox]

22. why that loony leftist Clarke who obviously doesn't know how these things work

in government. What the heck does he know about high level government activities anyway?

[Laelth]

23. This part is key (to me).

I am troubled by the precedent of stretching a law on domestic surveillance almost to the breaking point. On issues so fundamental to our civil liberties, elected leaders should not be so needlessly secretive.

The argument that this sweeping search must be kept secret from the terrorists is laughable. Terrorists already assume this sort of thing is being done. Only law-abiding American citizens were blissfully ignorant of what their government was doing.

Precisely. The only people from whom the government wants to keep this secret is the American people.

-Laelth

[avaistheone1]

24. Amen.

K&R

[JDPriestly]

26. Yes. Thanks for emphasizing this point.

[Little Star]

29. +1

[KoKo]

44. +1

[LuvNewcastle]

53. We're the enemy.

[Aerows]

59. Because they knew

that most people would be as angry about it as they are (and should be).

[SammyWinstonJack]

25. Under the bus for Clarke!

[democrank]

30. Kicking for Richard Clarke

[JNelson6563]

31. Very good article.

I couldn't have more regard for Mr. Clarke's opinions on such matters. Thanks for posting.

Julie

[JoePhilly]

80. I agree ... but doesn't Clarke seem to support the programs, and only have issues with

how the data is maintained, and who maintains it?

I posted about this here: http://www.democraticunderground.com/?com=view_post&forum=1002&pid=3003221

It appears he's trying to create a little more distance between the government and the data, but he does not seem to be arguing that the data not be collected, or that the government should not be using the FISA court to access it.

[Bluenorthwest]

95. Seems? Not sure how things seem to you, seems is not is, here is what he said

"I am troubled by the precedent of stretching a law on domestic surveillance almost to the breaking point. On issues so fundamental to our civil liberties, elected leaders should not be so needlessly secretive.

The argument that this sweeping search must be kept secret from the terrorists is laughable. Terrorists already assume this sort of thing is being done. Only law-abiding American citizens were blissfully ignorant of what their government was doing."

Laughable, troubled, needlessly secretive and aimed at the People. That's what he's saying.

[KittyWampus]

96. Wrong. He is saying exactly as explained to you. He argues the data should be stored by the business

side so that Govt can access via court order.

[frylock]

32. must be lunch break judging by the notable absence of certain surveillance supporters..

kicking for exposure.

[Fuddnik]

35. The Spanish Inquisition will arrive shortly.

Nobody expects them.

[grasswire]

67. guffaw!

well played.

[Aerows]

60. They are probably busy

counting the number of boxes in Clarke's garage and consulting with his neighbors to find out if they like him before coming into this thread.

[NRaleighLiberal]

34. Kick and Rec. n/t

[Hell Hath No Fury]

36. Much love for Clarke -

and thanks to him for speaking out on this issue.

[Uncle Joe]

38. Kicked and recommended.

Thanks for the thread, BlueCheese.

[xchrom]

39. du rec.

[longship]

40. This is the guy I wanted to hear from.

R&K

[JoePhilly]

42. At the end, doesn't Clarke actually argue that the government should have direct

access to this data rather than copies of it?

Early in the piece, Clarke says ...

And we know that the just-revealed National Security Agency program does not actually listen to our calls; it uses the phone numbers, frequency, length and times of the calls for data-mining.

So he agrees this is not wire tapping we're talking about. I point this out because many seem to think that's what's happening. Clarke appearently doesn't think so.

And then later, in his conclusion, Clarke also says this ...

If there had been a vocal and well-informed civil liberties advocate at the table, Obama might have been told that all those objections were either specious or easily addressed. Law already requires Internet service providers to store emails for years so that the government can look at them. An amendment to existing law could have extended that provision to telephone logs and given the companies a “safe harbor” provision so they would not be open to suits. The telephone companies could have been paid to maintain the records.

If the government wanted a particular set of records, it could tell the Foreign Intelligence Surveillance Court why — and then be granted permission to access those records directly from specially maintained company servers. The telephone companies would not have to know what data were being accessed. There are no technical disadvantages to doing it that way, although it might be more expensive.

Would we, as a nation, be willing to pay a little more for a program designed this way, to avoid a situation in which the government keeps on its own computers a record of every time anyone picks up a telephone? That is a question that should have been openly asked and answered in Congress.

Now, as I read that second section, Clarke is not saying that the government should not have access to these same records. He's saying that the government should not have copies, but should instead have direct access to the data while it is being maintained by the companies who collected it.

His concern seems to be that having government copies of the data makes it easier for some one to abuse the data. So, the government should not have copies, but should be able to use the FISA court to access the data while that data remains on servers that are maintained by the companies that collect it initially.

Am I wrong?

[Hell Hath No Fury]

48. I read it as -

the US having to go through the courts to access records stored by companies on special servers we pay them to maintain, thus creating a wall between the government and the info.

[JoePhilly]

74. Right, but its still the same court ... all that changes is the location of the data.

And the telecos would be required, by law, to maintain the data. And the government would still pay for it.

From what I can tell the only real distinction Clarke is making is the location of the actual data.

[Hell Hath No Fury]

87. Yes, I think that is it.

My problem is what the FISA court has already OKed -- that doesn't give me much confidence that any real difference will be made with a location change of the servers.

[dreamnightwind]

70. Looks to me like he's trying to limit the telco's involvement

either to protect them from liability or to prevent them from having any knowledge of which specific records are being looked at. Only FISA and the government would "need to know".

I don't really understand the importance of this distinction. It might be about cost, those data centers they're building are ginormous.

But I don't get why the full archives wouldn't need to be stored, whether it's by the telcos or by the government. How do they know they wont need a record sometime years from now? They don't, so they keep it all, plus they're no doubt running massive analysis of all of the communications endlessly, checking new data against historical data, algorithms flagging suspicious threads and the whole system gets more accurate as more historical data accumulates, though by now it's pretty mature with what, about 7 years of data?

I've seen several people in media comment on how they think the whole system will choke on its own massive storage. I think they underestimate the determination and resources of our security agencies. They'll just keep refining it and their processing power will increase exponentially.

And I wouldn't make any assumptions from Clarke's remarks about whether call contents are stored. I'd be surprised if they are NOT being stored. My guess is they're stored under something with a different name, or a different agency does it but the info is made available for reports from the database. That's strictly speculation on my part, maybe we'll find out some day. I just think they created some separation so they can plausibly deny that they are doing it.

[JoePhilly]

75. Exactly ... I don't see the importance of the distinction either.

In either case ...

All of the data is still stored (even potentially call content).

The government goes through FISA to dig into it.

The Telcos are not involved in the sense that they are not involved in the specifics of any request.

The government pays the cost of storing and maintaining it.

The only difference seems to be that the government doesn't have direct control over the data, private companies do.

Clarke seems concerned only about having government employees who should not have access, getting access. But his solution, I think, still allows people in private companies to have access. Which is something else people are flipping out about in the Snowden case.

[LondonReign2]

77. My take on what he was saying was

that the government should not have access to a broad set of data, i.e., they should not be able to have a full database of records at their fingers tips, presumably because that situation is ripe for abuse. Instead, I think he is saying the government shoudl have to adhere to the 4th amendment and only have access to records when and where there is probably cause.

[JoePhilly]

78. I agree with the first part of what you said ... but I don't see the second part in

what Clarke wrote.

On the agreement part ... right, the data should not be "at their finger tips". Clarke is creating some physical distance by using private company servers rather than government "controlled' servers. However, even that is a bit thin because the government would (a) legally require that the data be captured and maintained, and (b) the government would still pay for it's maintenance, (c) access the data without the telco knowing what they look at.

On the second part. Clarke does not seem to be suggesting that the FISA court not be secret, or that it not be used. at all. As far as I can tell, it would work pretty much exactly as it does now. You go to the FISA court if you need or want access into that data and you have probable cause. That's how it works now. And I don't think I see Clarke arguing that aspect change. Maybe I'm missing it.

[LondonReign2]

81. Nor did I suggest that

"On the second part. Clarke does not seem to be suggesting that the FISA court not be secret".

I didn't suggest that he did. What I said was that my take on what he said (and I agree with) was that the government should only be able to access phone records where there is probable cause. Yes, can be through the FISA courts. However, collecting every piece of data going through the Verizon network (and, one can logically presume that if they got it for Verizon they got it for all carriers) is not probably cause.

I think your argument has been that the government only accesses those records specifically permitted under FISA warrant. Both Snowden and Drake have stated that isn't true, and frankly to believe the NSA isn't mining that data broadly is far harder for me to believe than that they, and the private contractors, are following the letter of the law. The shear magnitude of their datacenter makes it pretty certain that they are doing more than just temporarily storing Verizpn (only) records and then deleting them.

[JoePhilly]

82. Ok, that makes you view a little clearer.

Your first paragraph. From what I read Clarke is not suggesting in that article that all of the data not be collected. In fact, he seems to be saying that its OK to collect it, and that he government can require it by law. He refers to email records as an example. So all of the data would still be collected under what Clarke describes. But the private companies would store and maintain it.

Second paragraph. From what I see in Snowden's statements, he's talking about people who have signed agreements to NOT look at the data, unless under warrant, taking advantage of the fact that they have access. Kind of like a bank teller looking at how much money some one they know has in the bank. The teller has access to all of the account data, but is only supposed to look at it while working with a specific customer.

And so Clarke's recommendation to prevent this, or other inappropriate access by the government, is to have the private companies maintain the data, rather than have the government copy and maintain it. Doing so would ensure that a government employee can only look into the data in very specific, approved situations. That might be better, but you still have the employees of the private company having access. Snowden was an employee of BooZ Allen (private company), and he (agree with him or not) overstepped his authority in the data and info he accessed.

So even that distinction is not clear, because Clarke also says that the government, when accessing the data (when approved to do so) would be able to do so without the telco employees knowing about it. Here he seems to be trying to ensure that the private companies are not involved in the investigation, which by law, they are not supposed to be part of already. But if the government can access the data without the telco knowing about it, hows that really different. When people thought that the government had direct access to the data on private company servers, they screamed about that too.

From what I can tell, Clarke is trying to fix one specific problem ... preventing someone in the government from slipping into the data and snooping around, when they don't have approval (ie., FISA warrant).

[Progressive dog]

83. That is what he says

You are not wrong.

If there had been a vocal and well-informed civil liberties advocate at the table, Obama might have been told that all those objections were either specious or easily addressed.

I'll even bet that he actually meant reasonable when he said reasonable.

[JoePhilly]

85. That shot at Obama aside, what specific changes does Clarke recommend to the programs?

The only thing I see is leaving the data with the private companies.

Everything else (see this link) stays basically the same.

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=3007541

[Progressive dog]

93. Wasn't intended as a shot at Obama

I only see the same thing that you do.

[blkmusclmachine]

45. How will the next GOP White House use these powers, and against whom?

[totodeinhere]

51. And when they are called on it they will cite this administration as a precedent. n/t

[golddigger]

47. I don't know about Clarke.

I heard that he shaves his balls.

[Hell Hath No Fury]

49. OK, that made me laugh.

[azurnoir]

94. and drinks milk straight from the carton

and wears tube socks where the colored stripes don't match

[usregimechange]

54. send this to franken

[Fuddnik]

76. Are you insinuating Franken needs to shave his balls?

[liberal_at_heart]

55. K&R

[90-percent]

56. I've respected Clarke as an honorable man for some time

He is the only person in the entire Federal Government that apologized to the Americna People for the failure of 9-11.

I've always found the GWB White House aggressive disinterest in his pre 9-11 warning to be very disturbing. I cannot envision myself as President ignoring a PDB stating "Osama Bin Laden determined to strike in the United States." For 9-11 the buck stopped at; "frankly, Richard, I don't give a shit."

Funny response from a guy who's job one is to keep Americans safe.

-90% Jimmy

[Douglas Carpenter]

62. knr

The argument that this sweeping search must be kept secret from the terrorists is laughable. Terrorists already assume this sort of thing is being done. Only law-abiding American citizens were blissfully ignorant of what their government was doing.

Secondly, we should worry about this program because government agencies, particularly the Federal Bureau of Investigation, have a well-established track record of overreaching, exceeding their authority and abusing the law. The FBI has used provisions of the Patriot Act, intended to combat terrorism, for purposes that greatly exceed congressional intent.

Even if you trust Obama, should we have programs and interpretations of law that others could abuse now without his knowing it or later in another administration? Obama thought we needed to set up rules about drones because of what the next President might do. Why does he not see the threat from this telephone program?


Read more: http://www.nydailynews.com/opinion/worry-nsa-article-1.1369705#ixzz2W3qyotix

[radiclib]

98. I'm stunned by that first paragraph

because last night on REAL TIME, he told the panel that he blamed Snowden for revealing to the terrorists that their emails were being intercepted. I'll look for a link.

[Douglas Carpenter]

65. knrf

[libdude]

73. The Constitution

and the collection of data on phone calls. Was the done in accordance with the Constitution proscribed process? According to case law used to obtain.search warrants? Based on probable cause? In compliance to the Patriot Act? I understand President Obama is a constitutional scholar, he should lay out the justification for this program and why it is not a violation of the Constitution, what terrorist threat the individuals whose data has been collected present to the United States.
If the only justification for this is only a little violation, what other little violation will come along, how about the 1st Amendment, 2nd, 5th, etc. Do you fully trust whatever the government says or does? I don't.

[markpkessinger]

97. Here's the paragraph that really stood out for me . . .

The argument that this sweeping search must be kept secret from the terrorists is laughable. Terrorists already assume this sort of thing is being done. Only law-abiding American citizens were blissfully ignorant of what their government was doing.

Which frankly flies directly in the face of all the hysterical bloviating about Snowden's betrayal of such 'secrets.'