There seems to be no appeasing some folks on the left—let’s not even talk about the Obama-hating libertarians on the right—when it comes to their criticism of President Obama, in terms of his perceived involvement in a vast bipartisan conspiracy to make the Fourth Amendment null and void. 
There is no such conspiracy, of course. We must keep in mind that what most Americans are seemingly worried about is “metadata” collection by the NSA, which President Obama said today,
does not involve the NSA examining the phone records of ordinary Americans. Rather, it consolidates these records into a database that the government can query if it has a specific lead, a consolidation of phone records that the companies already retain for business purposes. The review group turned up no indication that this database has been intentionally abused, and I believe it is important that the capability that this program is designed to meet is preserved.
In other words, the government isn’t recording, or requiring companies to record, your personal phone calls and there has been no demonstrated “intentional abuse.”
Just after President Obama gave his important speech this morning on reforming the NSA (the specific reforms I will leave you to discover for yourself), I heard a guest on MSNBC, Michael Ratner, a prominent human rights lawyer and activist, complain about how the President began his speech by offering “a bouquet of roses to the surveillance community, starting with the history of surveillance since the Revolution.”
Man, when your first criticism of the President’s speech begins with the speech’s structure, you are doing some Olympic-worthy straw-grasping.
The President did begin his speech with the history of “secret surveillance,” from Paul Revere to Union Army reconnaissance balloons to World War II codebreakers and communication interceptors to the Cold War-fighting National Security Agency, technically created by President Truman in 1952, but whose birth can be traced to the Signal Security Agency used to gather intelligence during WWII.
But even though he began with the positive history of our national intelligence gathering efforts, the President throughout the speech warned of the potential for abuse and “the risk of government overreach,” including spying on domestic “dissidents like Dr. King.” The President even said this:
I believe critics are right to point out that without proper safeguards, this type of program could be used to yield more information about our private lives and open the door to more intrusive bulk collection programs in the future. They’re also right to point out that although the telephone bulk collection program was subject to oversight by the Foreign Intelligence Surveillance Court and has been reauthorized repeatedly by Congress, it has never been subject to vigorous public debate.
So, yes, President Obama did begin his speech, which was essentially a rather vigorous defense of the NSA and intelligence gathering, with some history. But he also acknowledged the dangers involved, and he acknowledged the legitimacy of some of the criticism that has been offered since Edward Snowden leaked classified information to the world in June of 2013. More significantly, however, Mr. Obama ended the speech—and some people consider the ending the most important part of any speech—with the following, which I will excerpt in full because it will likely get lost in all the fog of anti-NSA or anti-Obama post-speech analysis:
When you cut through the noise, what’s really at stake is how we remain true to who we are in a world that is remaking itself at dizzying speed. Whether it’s the ability of individuals to communicate ideas, to access information that would have once filled every great library in every country in the world, or to forge bonds with people on the other side of the globe, technology is remaking what is possible for individuals and for institutions and for the international order. So while the reforms that I’ve announced will point us in a new direction, I am mindful that more work will be needed in the future. On thing I’m certain of, this debate will make us stronger. And I also know that in this time of change, the United States of America will have to lead.
It may seem sometimes that America is being held to a different standard. And I’ll admit the readiness of some to assume the worst motives by our government can be frustrating.
No one expects China to have an open debate about their surveillance programs or Russia to take privacy concerns of citizens in other places into account.
But let’s remember, we are held to a different standard precisely because we have been at the forefront of defending personal privacy and human dignity. As the nation that developed the Internet, the world expects us to ensure that the digital revolution works as a tool for individual empowerment, not government control. Having faced down the dangers of totalitarianism and fascism and communism, the world expects us to stand up for the principle that every person has the right to think and write and form relationships freely, because individual freedom is the wellspring of human progress.
Those values make us who we are. And because of the strength of our own democracy, we should not shy away from high expectations. For more than two centuries, our Constitution has weathered every type of change because we’ve been willing to defend it and because we’ve been willing to question the actions that have been taken in its defense. Today is no different. I believe we can meet high expectations. Together, let us chart a way forward that secures the life of our nation while preserving the liberties that make our nation worth fighting for.
I hope everyone, including human rights activists like Michael Ratner, will pay at least as much attention to the end of the speech as Mr. Ratner paid to its beginning.
The Erstwhile Conservative: A Blog of Repentance 
Sedate Me
/ January 17, 2014“No one expects China to have an open debate about their surveillance programs or Russia to take privacy concerns of citizens in other places into account.”
Because, for some strange reason, people expect MORE from America, the self proclaimed inventor of democracy & human rights. Shit, man! If China & Russia represents our new threshold of acceptability, then prepare for a very long, cold, human rights nuclear-winter folks!
I’ve been waiting for, not just an open discussion of America’s Surveillance State, but merely an acknowledgement of its very existence for about 20 years. This shit has been implemented without any debate, without passage of appropriate laws, without judicial opinion and without warrant (pun intended) long before a few idiots flew planes into buildings in an attempt to snag some postmortem virgin tail. This was underway before enough collective shit was scared out of us that we’d be willing to hand over every right we ever thought we had on the off chance that it might “keep us safe” from
Old NickJoe StalinThe Ottoman Empire 2: Electric Boogaloo.This isn’t Obama’s turd by any stretch of the imagination, but he’s sure trying to polish the hell out of it.
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Sedate Me
/ January 17, 2014Whups, the NSA intercepted my message and buggered up my HTML.
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Herb Van Fleet
/ January 17, 2014Duane,
It’s hard not to agree with what you say here and, even though I didn’t hear or see Obama’s speech today (Jan 17), I’m pretty sure I would have agreed with most of what he said as well. But, IMHO, Obama’s elocution re NSA, America’s spying programs, and the 4th amendment is all rhetorical. I assume there was lots of “feel good” stuff about our “great nation.” All well and good. But platitudes and cliches don’t work for me.
In fact, Obama’s speech merely underscores the problem that these days that what we need is a Harry Truman but what we have is a Woodrow Wilson. I’m not sure, but I don’t think Obama has ever fired anybody in his administration, including in the intelligence agencies, or in the military. There are plenty of candidates who should have been asked to not let the door hit ‘em on the way out. I’d start with the head of NSA.
You quote Obama as saying the “metadata collected by the NSA, “does not involve the NSA examining the phone records of ordinary Americans. Rather, it consolidates these records into a database that the government can query if it has a specific lead.” That’s just not true. The NSA collects the number called from, the number called to, the date, and the duration. He then contradicts himself by saying the NSA doesn’t examine “the phone records of ordinary Americans,” and then says “the government can query [the database] if it has a specific lead.” What? Is the NSA not part of “government?”
I don’t know if Obama was correct, but he mentions “telephone data,” so I don’t know if he meant to leave out cell phones. Of course, he also left out NSA’s collection of emails, text messages, website visits, web search history, skype calls, credit card information, and travel plans – electronic breadcrumbs as they are called. So, yes, we’re going to limit the NSA’s collection of phone data. But that’s only a relatively small portion of the data collected that the government can query.
And it’s not just the NSA. Remember we also have the CIA, the FBI, the Department of Homeland Security, the Treasury Department, and the intelligence divisions within the DOD. How will the president protect us from the overreach of these spy agencies?
Now, I don’t know if Obama said anything about the 4th amendment in his recitation of the nation’s history of spying. I’m guessing, probably not. So I’ll do it: During the Revolutionary War, the Red Coats went door to door looking for anything that would tell them who the loyalists were and who were not, and where Washington’s troops might be, and often seize weapons and gunpowder. Fortunately for us, the founders recognized that such reckless disregard for citizens’ personal property and private documents by the government was untenable as a threat to liberty. Such searches and seizures were to be justified ONLY by probable cause with items specifically identified in a warrant and then authorized by a judge.
Now, I, for one, do not think the 4th amendment should be given short shrift just because we are in the era of electronic communications and cybernetics. That provision in the Constitution is one that gave us some protection against the Red Coats, which today we call the police.
We should recall too that the F word in FISA is “Foreign.” National security should be focused on foreign nationals in foreign nations, which apparently now includes the presidents of Germany and Brazil.
I’m willing to bet that the vast majority of Americans, more that 99%, are NOT spies and have NO intention of blowing stuff up or flying planes into tall buildings. And I resent like hell being put in the same category as a terrorist and then allowing my government to eviscerate one of the most important rights I have — we all have — under the Constitution.
I hate to keep repeating it, and maybe it needs to be carved into Obama’s desk, but ol’ Ben Franklin put it best: “Those who surrender freedom for security will not have, nor do they deserve, either one.”
Herb
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Sedate Me
/ January 17, 2014Good points there.
And it’s not just the NSA. Remember we also have the CIA, the FBI, the Department of Homeland Security, the Treasury Department, and the intelligence divisions within the DOD. How will the president protect us from the overreach of these spy agencies?…..We should recall too that the F word in FISA is “Foreign.” National security should be focused on foreign nationals in foreign nations, which apparently now includes the presidents of Germany and Brazil.
And do they even tell Obama what they’re doing? I seriously doubt it. Every time something comes out, it looks likes this is the first he’s heard of it.
Speaking as a no-good foreigner who requires his every action to be monitored & recorded for forever,(not to mention having a boot placed on my face for forever) I too resent being treated as an enemy of America merely for having a pulse. This is really no way to make friends. Just ask world renown terr’ist Angela Merkel. After all the tapping of her phone and that sneak attack Bush pulled on her at that G20 meeting, who could blame her for wanting to strap on a bomb-vest?
Which reminds me of other international angles. As America pretends it doesn’t have blanket surveillance on its own people when it clearly does, there’s a couple of loopholes that generally go unmentioned.
1) The “right” to spy on foreigners and vice-versa. This allows for the “accidental” spying on Americans communicating with dangerous for’ners like me (Sorry guys.) However, it also means for’ners can spy on Americans…and then buy/sell/trade the info with anybody…including US agencies? After all, that’s not “active spying” it’s merely “compiling data”.
Thanks to a Snowden leak, it seems my pissant nation of Canukistan was not just ruthlessly violating the rights of its own citizens during the Toronto G20 meetings. It was using some of that meeting’s BILLION dollar plus security budget to assist American agencies to illegally spy on attendees, aka the best friends they have.
2) Private spying. Loserbook is the world’s largest for-profit spy agency. It’s very business premise is selling anything on its members to anybody with a chequebook. Private companies spy on Americans like there’s no tomorrow. It’s digital gold. They know more about you than you do. Not only do American spy agencies intercept that “data” (aka YOU) all they would have to do to get it is right a cheque for it…which is probably why Loserbook, Google, etc are so pissed about their servers being invaded. They missed out on a big payday.
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R. Duane Graham
/ January 20, 2014Your use of the term “blanket surveillance” is, of course, quite tendentious. And since “surveillance” denotes some degree of “observation,” it is quite inaccurate. No one is being observed by the NSA here in America, if by observed you mean, well, observed. Phone bill data is being stored. How that amounts to observation or surveillance is beyond me.
It’s been commonly understood since the widespread use of technology that countries all over the world spy on each other. Even our friends try to spy on us. We’re just better at it than everyone else, or we like others to think we are. And that pisses off the rest of the world. But they are pissed off publicly, not, I suspect, privately. I assume they knew they were being spied on, to some degree, all the time. That’s one of the ways this superpower tries to keep meaningful both the super and the power in the term. Hacking into the personal phones of Merkel and others is obviously going too far, since there has to be some degree of personal trust involved in international relations with your “friends.” But spying on countries, even our friends, is not going to stop in the larger sense.
Finally we agree on something. I think. People surrender much more personal data to private companies online (who then do obnoxious and greedy things with it) than anything the government might be interesting in knowing these days.That’s why I don’t understand the hysteria surrounding the NSA metadata collection. Yes, I know the government having your private information is much more potentially dangerous than private companies having it, since the government can imprison you, but no one, not even you in your deepest, darkest, most cynical moments is suggesting that the government is about to imprison 100 million Amazon shoppers.
And I find it quite ironic that some left-wingers I have seen on TV, those who are worried to death about the abuse by the NSA, have lately been talking about how companies like Google are getting financially hurt outside the U.S. because people don’t “trust” our government. No, it’s not ironic. It’s goddamned hilarious. For lefties to worry about the financial well-being of multinational corporations, who make tons of money off selling data on Americans and others, is an amazing part of this whole strange fascination with phone bills.
Duane
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R. Duane Graham
/ January 20, 2014Herb,
Perhaps you have access to better information than I have, but I wasn’t aware that the government is collecting “emails, text messages, website visits, web search history, skype calls, credit card information, and travel plans” from Americans. Please elaborate or provide evidence for this claim.
I know that the NSA collects such information on “valid foreign intelligence targets,” and it is possible some Americans who communicate with those suspected of being terrorists might get caught up in that collection—even though the NSA reportedly washes all “U.S.-related” messages from that international database. But it is not the practice of the NSA (as far as we know) to collect such things here at home. That is why the President’s speech focused on the phone data. You think he would leave out the other stuff if it were going on domestically? He would have been mercilessly hammered day and night.
As for your Fourth Amendment argument, do you really think the “unreasonable searches and seizures” language applies to phone records—and remember, we are talking about just the records, not the content of the calls—that are collected and initially held by private companies? Sure, now that the thing is out in the open, now that Edward Snowden has told the world, including our Allah-fearing enemies, what is going on, I’m all for having the Supreme Court decide if “unreasonable” applies to what the NSA is doing with its phone data collection program. If the Court finds it unreasonable, though, it would also have to find that a lot of what modern government is doing is similarly unreasonable, like, say, checking my luggage at the airport.
I recently traveled to Arizona on an airplane. I was required to submit to an inspection of my carry-on items. My body was scanned. Once I was safely home, I found in my checked bag a notice from the Transportation Security Administration. The notice said the agency had opened and inspected my bag for “prohibited items.” In fact, in the notice were these words:
Did the government violate my right to privacy? When it was rummaging through my socks and skivvies, did it violate my Fourth Amendment rights? It seems to me that such a government action carried out by the TSA is much more egregious than what the NSA is doing with my phone records, which is to say it is storing them on a computer somewhere without looking at them. Yet millions upon millions of us tolerate such action by the TSA at our nation’s airports, and some of us even welcome such action. I know I do. I don’t mind it a bit. I’m not the least worried about it. Why? Because I value—I highly value—having at least some confidence that someone checked to see whether some Allah-loving fanatic, or some other suicide-bombing nut, tried to smuggle something deadly aboard the plane. In other words, I worry much more about my security on the airplane, where I am helpless as can be, than I worry about some TSA employee gazing at my underwear, whether in my bag or on my body.
Let me explain where I would draw the line. I had a laptop in my checked luggage, the same luggage the TSA opened and inspected. If a TSA employee had attempted to turn on my laptop and check its contents, or if the employee had gone through my personal papers in my luggage (I didn’t have any this trip), I would have had a major problem with that. Why? Because such actions are unrelated to what the mission of the TSA is. A search like that would involve going way beyond a legitimate security purpose. Thus, I would also oppose the NSA’s actions if it were collecting the kind of data you suggested it was collecting, not to mention querying it without a court order.
You wrote,
I agree that most of us aren’t spies or terrorists. That is why President Obama rightly said that the NSA is not “examining the phone records of ordinary Americans.” I think it is fair to say that ordinary Americans aren’t plotting to kill innocent people in the name of Allah. But to say that because the NSA is holding your personal phone records in a database somewhere means that the government has eviscerated “one of the most important rights” you have, sounds to me to be a little, well, melodramatic. The government is not looking at most of those records; it certainly is not listening to your phone calls or reading your texts and emails, no matter how interesting they might be. So I am at a loss to figure out how your phone bill records are so sacrosanct. I know mine aren’t.
Maybe the Supreme Court will one day find that what the NSA is doing, collecting and storing but mostly not looking at uncountable numbers of phone records from the various phone companies, is unconstitutional. But we shouldn’t kid ourselves that if it does, if the Court kills the metadata program, we might technically believe ourselves to be more free, but at what future price? You see, most of the objections to the NSA program involve the potential for future abuse, just as the program itself is designed to prevent future attacks. And just as I am willing to trade some minor privacy intrusions at the airport in return for reasonable assurances that some crazed killer won’t blow up my airplane or fly it into the nearest skyscraper, I am also willing to trade the minor privacy intrusion of having my phone records resting on some hard drive in some government-owned building in exchange for reasonable assurances that terrorists will have a tougher time doing today what they did on September 11, 2001.
Duane
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Jim Wheeler
/ January 18, 2014Interesting discussion on the privacy matter, you guys, but it seems to me some context lacks emphasis. I’m talking not only about how technology has changed what is possible to monitor but how 9/11 changed the culture. It was seminal. Because of 9/11, broadcast in living color, live, fear became ubiquitous and it enabled the busting of the budget with two ill-conceived wars and all the bureaucratic excesses detailed in the book, “Top Secret America”. That included the creation of two massive and completely unnecessary bureaucracies, the DNI and the DHS, not to mention the expansion of the NSA.
But, we all know this, so what’s my point? It is this. We can’t reverse 9/11 and we can’t put fear back in the bottle. Terrorism is real and it isn’t going away. The public is what it is, mainly distracted and uninvolved but reactionary. Because any small group of terrorists can damage the nation badly, we are forced to seek them out before they act and that can’t be done effectively without access to their communications.
I think the president has the right take on the problem, which is to put just the right amount of control on the collection process. The problem of course is, who will watch the watchers? It’s classic. After the next attack, and there will be one, the public will be demanding to know why the president didn’t prevent it.
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King Beauregard
/ January 18, 2014“After the next attack, and there will be one, the public will be demanding to know why the president didn’t prevent it.”
Yep. Do we really want a president who didn’t use the tools at his disposal to keep the country safe? We had one of those already and look how well that turned out. Sure it’s easy to quote Ben Franklin, but as with absolute statements in general it fails at the point of actual application. The very existence of a police force and a legal system, for example, is an example of trading liberty for security, yet Franklin didn’t feel those were inherently wrong. “Oh well Ben Franklin didn’t mean it like that” … well then, the guy should have said what he meant. Same with Thomas Jefferson’s “governs least” statement (which if taken as stated calls for anarchy): how can you be so skilled with words that your writings are enshrined for hundreds of years, yet you come up with material that sounds like a teenager just starting down the road of political awareness?
I won’t be enshrined even for 15 minutes for saying so, but: there is a tradeoff between liberty and security, and that government is best which manages that tradeoff and other tradeoffs to provide the best outcomes for the people, where “best” is subject to interpretation.
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Jim Wheeler
/ January 18, 2014King B, I don’t see how it could be put any better than you just did.
In my own comment I did neglect to make one more observation, i.e., that the “war on terror” really ought not be a “war” at all, but rather something more of an (international) police matter. Had our leader realized and articulated that 12 years ago, things might have been much different.
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King Beauregard
/ January 18, 2014“King B, I don’t see how it could be put any better than you just did.”
Well that’s depressing!
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R. Duane Graham
/ January 20, 2014During the 2004 presidential campaign, John Kerry tried to make that exact point, Jim. He was almost roasted alive for it by the right-wing. They used it against him by claiming that he was the typical “liberal” Democrat who was “weak” on defense. That attack worked in the past against Democrats, but after all these years at war, I don’t think it has anywhere near the power it used to have.
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R. Duane Graham
/ January 20, 2014King,
I think you, Jim, and I are essentially on the same page here, in terms of the NSA issue. Our security arrangements have changed over time and will continue to change. Thus the tension between freedom and security, which will always be a part of civilized life, will change too. Hopefully we will get it right most of the time, but there will be excesses each way, I suppose.
I especially like what you say about Franklin and Jefferson and the Founders in general. I, too, have found some of the things they have written to be, well, rather unimpressive, especially as we look back from the 21st century. I admire much of what the Founders were able to accomplish, especially considering they didn’t have the Internet (!), but there is much to criticize and, more important, much to ignore in their writings. When I was a conservative, I was taught to almost apotheosize that founding generation of Americans. Now, I know better.
Duane
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R. Duane Graham
/ January 20, 2014Jim,
“Who will watch the watchers?” That is a classic problem, especially in the case of the NSA. At some point it simply comes down to a basic trust that our governmental institutions, especially Congress and the courts, will do what they are supposed to do, in terms of keeping in check any potential abuse of these highly secretive (at least they were highly secretive) and sophisticated efforts.
It’s either that or expose ourselves to the kind of attacks we see daily in places like Iraq. We have to use our national technical means to keep our country relatively free of the kind of violence we see around the world right now, as we have many, many enemies who hold what they believe is Allah-inspired vengeance in their hearts.
Duane
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