President Obama "goes further than he has before" in explaining "the balance between security and freedom," the Charlie Rose Show tweeted to hype its 45-minute interview with Obama that airs Monday night. And while Obama does go into further detail than he has before, we've already heard most of these defenses. They are: 1) the programs only collect metadata — no wiretaps! 2) the programs are overseen by an independent "transparent" court and Congress, and 3) there haven't been abuses, because abuses are against the law.
According to a partial transcript of the president's PBS interview posted by BuzzFeed, Obama said the NSA's program of grabbing all phone call metadata amounted to looking at "call pairs." It was an echo of his "no one is listening to your phone calls" statement from two Fridays ago, when he first spoke out about a series of leaks. In today's words, that's: "You have my telephone number connecting with your telephone number. There are no names. There is no content in that database." But as we've pointed out, with metadata, which includes geolocation, you don't need content. The NSA can pinpoint stories in a building. That means if your friend calls you for 10 seconds from the street in front of your apartment, the NSA can conclude your buzzer is broken and you had to let her in. Obama conceded, but implied there hadn't been abuses of that awesome big data power, because they're against the law:
...What you’ll hear is people say, “Okay, we have no evidence that it has been abused so far.” And they say, “Let’s even grant that Obama’s not abusing it, that all these processes — DOJ is examining it. It’s being renewed periodically, et cetera — the very fact that there is all this data in bulk, it has the enormous potential for abuse,” because they’ll say, you know, “You can — when you start looking at metadata, even if you don’t know the names, you can match it up, if there’s a call to an oncologist, and there’s a call to a lawyer, and — you can pair that up and figure out maybe this person’s dying, and they’re writing their will, and you can yield all this information.” All of that is true. Except for the fact that for the government, under the program right now, to do that, it would be illegal. We would not be allowed to do that.
The executive branch has abused its surveillance power. The Foreign Intelligence Surveillance Court has ruled, on at least one occasion, that the information the government collected violated the Fourth Amendment. The non-profit Electronic Frontier Foundation tried to find out what that violation was. But as The Atlantic Wire's Philip Bump explained in May, the Justice Department claimed the secret court's rules prevented that info from becoming public, while the court said the info was subject to a Freedom of Information Act request. In other words, "The judicial branch (FISC) says to ask the executive branch (DOJ). The executive branch says to ask the judicial." When defending the agency, former NSA director Michael Hayden told The Daily Beast "he remembered a collector who was fired for trying to snoop on his ex-wife overseas."
Further, Obama tells Rose, "...on this telephone program, you've got a federal court with independent federal judges overseeing the entire program. And you've got Congress overseeing the program." But the FISC, which Obama called "transparent," is a secret court. And Congress hasn't been so great at providing oversight. Many in Congress claim not to know the things the NSA said it briefed them on. Only 47 senators showed up for an NSA briefing last week. Rep. Jim Sensenbrenner, who wrote the Patriot Act, called the phone program an "abuse" even though such abuse appears to have been going on for about a decade.
As for the NSA's collection of emails, Obama said that's "called the 702 program. And what that does is that does not apply to any U.S. person. Has to be a foreign entity... Those — and the process has all been approved by the courts — you can send to providers — the Yahoos or the Googles, what have you." Don't worry — it doesn't apply to you! But in a question-and-answer session with readers of The Guardian on Monday, NSA leaker Edward Snowden was not very enthusiastic about those warrants approved by courts:
NSA likes to use "domestic" as a weasel word here for a number of reasons. The reality is that due to the FISA Amendments Act and its section 702 authorities, Americans’ communications are collected and viewed on a daily basis on the certification of an analyst rather than a warrant. They excuse this as "incidental" collection, but at the end of the day, someone at NSA still has the content of your communications. Even in the event of "warranted" intercept, it's important to understand the intelligence community doesn't always deal with what you would consider a "real" warrant like a Police department would have to, the "warrant" is more of a templated form they fill out and send to a reliable judge with a rubber stamp.
Obama denied that he was Dick Cheney Part II — "some people say, 'Well, you know, Obama was this raving liberal before. Now he's, you know, Dick Cheney'" — because the secret court is transparent. "I continue to believe is that we don't have to sacrifice our freedom in order to achieve security. That's a false choice," Obama said. "That doesn't mean that there are not tradeoffs involved in any given program, in any given action that we take." How do we know we're getting a balanced deal if we don't know what's on each side of the scale? Obama says he's asking the intelligence agencies "much of this we can declassify without further compromising the program."
The president goes on to tell Rose that he wants "to set up and structure a national conversation, not only about these two programs, but also the general problem of data, big data sets, because this is not going to be restricted to government entities." Both the government and big business have these massive data sets. But only Silicon Valley, it seems, can talk about it publicly — Congress cannot. Too bad the federal government is the side with police power.
This article is from the archive of our partner The Wire.