> I don’t think anybody says we’re no longer free because we have checkpoints at airports.
I think there are actually quite a lot of people who do expressly argue that point in nearly those exact words. The point of contention is arguing we are demonstrably less free or more inconvenienced not because of the checkpoints per se, but because of the invasive procedures forced upon the public's expectations of privacy and the protection thereof.
This--invasive violation of public expectations of privacy & protection--is becoming a bit too much of a constant theme.
> [W]e don’t have to sacrifice our freedom in order to achieve security. ... That's a false choice. ... To say there’s a tradeoff doesn’t mean somehow that we’ve abandoned freedom.
The President is an intelligent man with a solid grasp of language and its intricacies of usage. To admit there is a tradeoff is to implicitly assent to the sacrificing of freedom for said tradeoff (this, the achievement of security).
The bit about this being a false choice is interesting. The President invokes the fallacy of the false dilemma, which raises the expectation that there are additional options available--but not considered--where the goal of protecting freedoms and achieving greater security intersect ... and then does not offer any alternatives or exposition on what other options may be (or have been) considered. I'm left quite unsure of how he then considers sacrificing freedom to achieve security a false choice.
Moving on, this statement
> ... the NSA cannot listen to your telephone calls, and the NSA cannot target your emails … and have not.
directly contradicts the followup statement:
> ... if you’re a U.S. person, then NSA is not listening to your phone calls and it’s not targeting your emails unless it’s getting an individualized court order.
This strikes as more talking points rearing their head without substantive difference in an effort to shape public opinion and discourse. If it is said that the NSA cannot target emails and listen to phone calls, that is going to etch itself into the public consciousness that the technological apparatus required is not present. But the follow up clarifies in nearly identical language that the NSA is not listening/targeting "unless it's getting an individualized court order." So now we are at the opposite side--the NSA can target your emails and listen to your phone calls, despite the aforementioned clarification they cannot. The talking points are keeping things intentionally muddled where they could easily make it more plain. So, barring other intricately worded explanations, this pretty much makes it sound like the NSA can indeed listen to your phone calls and target your emails, but only--as long as the existing rules are being followed--if they secure an "individualized court order" after good old-fashioned probable-cause seeking.
Of course, this is an even more bizarre clarification for the President to make when he later turns his attention to the phone records program. The 2015 Program:
> Program number one, called the 2015 Program, what that does is it gets data from the service providers like a Verizon in bulk, and basically you have call pairs. You have my telephone number connecting with your telephone number. There are no names. There is no content in that database. All it is, is the number pairs, when those calls took place, how long they took place.
Okay, so admission that bulk call data is there, as Snowden alleged with his leaks. Once again, the talking points that this is all metadata--without explicitly using that particular word, though. And yet, it is trivial to connect a phone number to its owner. So, your call data is there in the database with all the information required to identify you specifically should intelligence agencies deem necessary.
The President further clarifies the nature of the reporting in that he says "[a]t no point is any content revealed", a perhaps unfortunate, unintended admission that the content is there. I know the President likes to be very clarifying when speaking and interviewing and somewhat sidetracks mid-sentence to clarify a specific phrase or term (note all the em-dashes littered throughout the text of the interview), but this one is particularly interesting because it reads as if he caught himself mid-un-truth when he jumps mid-sentence to say that if the FBI wants content, they then have to go to the FISC to ask for a warrant to get the content.
Any rational person should, therefore, conclude the content is indeed there to be interrogated, regardless of what the policy for such interrogation may be.
His comments on the 702 program are nigh-unintelligible for such a careful speaker as the President usually is. He tries to disqualify concerns about it by saying it "does not apply to any U.S. person", then describes it as a program that produces "essentially [but not actually] a warrant" that compels private companies who hold communications to turn over the content. Then again, the clarifier that this does not apply to U.S. persons and is only in "narrow bands" of criminal/terrorist activity by foreign agents. He further attempts to posit constitutionality and authority by saying "the process has all been approved by the courts"--but these are not publicly accountable courts whose decisions are made available to we the People.
> ... if people are making judgments just based on these slides that have been leaked, they’re not getting the complete story.
Nevermind that we are only getting a partially complete story--being hidden behind curious clarifications and dubious assertions of state secrets privileges--because of leaked slides.
The big kicker:
> It is transparent. That’s why we set up the FISA court ... My concern has always been not that we shouldn’t do intelligence gathering to prevent terrorism, but rather are we setting up a system of checks and balances?
So, 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, not just the intelligence committee and not just the judiciary committee — but all of Congress had available to it before the last reauthorization exactly how this program works.
This is more informative than most everything else in the interview. The President clarifies that--despite much of what campaign rhetoric made people believe he thought--his concern is not whether we should be enacting these intelligence gathering programs that target everyone and attempt to hide behind policy rules, not laws. His concern is the erection of checks and balances that appear good enough, but none of which actually are explicitly in the way of public discourse and notification.
He relies on a "federal court with independent federal judges" that operate in secret and whose decisions are de facto classified, as well as statistically shown to be rubber stamp decisions.
The biggest allegation is that all of Congress had this information available to them before the last reauthorization of the programs, information that told Congress "exactly how this program works".
Either the President is lying, or Congress is putting on a sham of shock when they were already aware of all of this, or the President is throwing them under the bus for not bothering to read and understand the information before reauthorizing--thus making a move to avert public outrage toward their representatives, all of whom allegedly had this information and ignored it when reauthorizing. Or something else.
I still feel like this interview offers a depressing amount of talking points winning over actual disclosure, and yet another advance of creatively assigning words like "transparency" to programs that are clearly not.
It's interesting that they would bandy around the word "transparency" -- with secret unapproachable courts, not all committee members being read into programs, and so on.
That's gotta win for me the "political doublespeak" award for the week. Better to have made a case that the structures were needed (which he feebly does, incongruously), than simply call one thing something else over and over again.
how egregious has Obama been in this regard? winning the Peace Prize while conducting wars? claiming that he is a promoter of transparency, when he's as secretive as any recent prez. claiming "hope & change" when nothing has changed at all and most people are lower on hope than ever? total Doublespeak.
and i would say that Doublethink was the real main point of 1984. Big Brother and surveilance...that was filler compared to the theme of Doublethink. Go ahead and watch what I do, I'm not ashamed, but DO NOT fuck with my thoughts and my words for expressing those thoughts.
ministry of love, ministry of truth, ministry of peace...2+2=5. it was such a bigger part of 1984 than the surveilance bit.
In the US, political correctness is the slippery slope to Doublespeak.
It occurred to me just tonight: I don't think it's doublespeak, I think he uses the word "transparency" in the sense of something that cannot be seen. The acts, policies and judgements themselves are transparent, not the barriers to information that his rhetoric led me (us?) to believe.
> I'm often asked the question, "What's more important – civil liberties or national security?" It's a false question; it's a false choice. At the end of the day, we must do both, and they are not irreconcilable. We have to find a way to ensure that we support the entirety of the Constitution – that was the intention of the framers of the Constitution, and that's what we do on a daily basis at the National Security Agency.
That is a fun question. Convince is a very strong term, and I'm not sure anything political actors can say at this stage can actually attain convincing power of 1.
Here's a quick stab at answering:
On the question of whether or not the ability exists to listen to phone calls:
The programs in question, and all other intelligence operations and agencies, do not possess the technical capabilities or requirements to collect, intercept, parse, translate, analyze, listen, or store the content of any person's voice communications at any point in time. We cannot collect, intercept, read, parse, analyze, translate, transcribe, or store any person's phone calls either in the present or the past without a properly executed warrant. When such warrant is executed, we can only engage in technical operations that allow us to wiretap or request records of private communications from the date of the warrant forward. Every communication record in the possession of intelligence agencies is tied to an executed warrant and does not pre-date the date of the warrant.
On the question of whether or not the ability exists to peruse the contents of people's email and other non-audio comunications (IM, SMS, etc.):
The programs in question, and all other intelligence operations and agencies, do not possess the technical capabilities or requirements to collect, intercept, read, parse, analyze, translate, transcribe, or store the content of any person's data communications at any point in time. We cannot collect, intercept, read, parse, analyze, translate, transcribe, or store any person's data communications either in the present or the past without a properly executed warrant. When such warrant is executed, we can only engage in technical operations that allow us to wiretap or request records of private communications from the date of the warrant forward. Every communication record in the possession of intelligence agencies is tied to an executed warrant and does not pre-date the date of the warrant.
On the question of whether the government does indeed have databases of private communications records:
We cannot collect, intercept, read, parse, analyze, translate, transcribe, or store any person's data communications either in the present or the past without a properly executed warrant. When such warrant is executed, we can only engage in technical operations that allow us to wiretap or request records of private communications from the date of the warrant forward. Every communication record in the possession of intelligence agencies is tied to an executed warrant and does not pre-date the date of the warrant. No person's communications data is present in a database unless that person is expressly mentioned as the target of a warrant.
Of course, I'd accept equivalent answers that say the opposite. Either way, the language would be far less obfuscating and make it clear exactly what the government is or is not doing.
I would also further elaborate that automatic analysis of private communications prior to the date of a warrant can not be used as justification to obtain a warrant to gather information going forward.
Any automatic analysis of content should be considered fruit of a poisonous tree and every single thing that comes from that fruit, including a approval of a warrant and fruit gathered after the warrant was issued should be considered poisoned.
The worst of all this is that the classified nature of all this makes it impossible to determine when evidence was gathered from this poisonous tree.
Absolutely. I'd agree that all conclusions derived from such analysis ought to be thrown out and cause for dismissal of any case/warrant issued. This really is what is at stake--well, beyond the violations of the 4th Amendment and other legal expectations/protections.
This is a dangerous step. Not to go too Hollywood on the subject, but I'm struck by the ways this could increase in effectiveness to the point that the next whistleblower/debacle centers on the ways in which the collection and analysis of private papers/data lead to arguing that such programs aid in the Minority Reportish prevention of impending crimes. We're already (supposedly) using this to prevent terrorism. Next thing could be robberies, murders, "illegal" demonstrations, dissent, civil disobedience, etc.--in other words, thoughtcrime.
Moreover, where juridical proceedings are concerned, how in the hell is Joe/Jane Public supposed to argue that s/he is not guilty of something that is alleged on the basis of data contained in a secret database of dubious legal, but otherwise publicly accepted, nature? How do you prove that incriminating communication records are not yours, or that they do not mean what the government alleges they mean?
I don't know about proof, but in the Zazi case we saw that there were three people who were identified as connected to the plot early on who were quietly dropped from the story as it progressed, leading one to conclude that they were indeed false positives.
As for "robberies, murders, etc.," we know that Section 215 orders have been used against hackers, and the government themselves have described the purpose of the programs to be applied to "criminals" in general:
Your distinction between existing records/data and records created going forward from the time of the warrant is an important one that I haven't seen expressed so clearly before.
Do you think the answer about databases of records should address government access to databases kept by major companies?
I, too, think it is a vital distinction. Sadly, I think the government is relying on ambiguous language in the Patriot Act (and subsequent reauthorization amendments) to bypass typical warrant restrictions.
If I were on the legal team interpreting the laws and their intent as it surrounds intelligence gathering, I'd see one widely open door--the Patriot act allowed for the searching of email and telephone communication records, and National Security Letters allow law enforcement to use these letters to investigate US citizens, even when they are not suspected of committing a crime, and absolve them of the requirement to obtain a warrant before searching "records".
Given that much of the debate is centering on conceptions of records, collecting, intercepting, databases, metadata, etc., I would guess there's a significant probability that the NSA et al. interpret the Patriot Act in such a way that the widespread collection of records is well within the dictates of the law and does not run afoul of the any legal requirements.
Where databases owned by private companies are concerned, I expect those fall under established warrant procedures that require law enforcement to stipulate the need to search and seize such records from the companies when a proper warrant is issued declaring the specific items to be seized and from where. So, I would guess that a legal challenge against government access to databases kept by major companies would be a rather Sisyphean battle, given warrant case law and precedents. Of course, with warrants, the suspected party is, I believe, able to be notified/aware of the warranted search & seizure. With NSLs, however, the Patriot Act lifted that, creating instead a much more attractive (to law enforcement & intelligence agencies, at least) vehicle that carries an automatic gag order.
The real issue is government access to those records en masse and without standing warrants specifically detailing the targets of collection. And here is where we start wading into creative interpretation of (possibly intentional) ambiguously worded legislation granting expansive powers to search records without a warrant, records which can now include telephone and email correspondence, as well as other records which have been commonplace in the last several decades of warrant issues.
> I don’t think anybody says we’re no longer free because we have checkpoints at airports.
I think there are actually quite a lot of people who do expressly argue that point in nearly those exact words. The point of contention is arguing we are demonstrably less free or more inconvenienced not because of the checkpoints per se, but because of the invasive procedures forced upon the public's expectations of privacy and the protection thereof.
This--invasive violation of public expectations of privacy & protection--is becoming a bit too much of a constant theme.
> [W]e don’t have to sacrifice our freedom in order to achieve security. ... That's a false choice. ... To say there’s a tradeoff doesn’t mean somehow that we’ve abandoned freedom.
The President is an intelligent man with a solid grasp of language and its intricacies of usage. To admit there is a tradeoff is to implicitly assent to the sacrificing of freedom for said tradeoff (this, the achievement of security).
The bit about this being a false choice is interesting. The President invokes the fallacy of the false dilemma, which raises the expectation that there are additional options available--but not considered--where the goal of protecting freedoms and achieving greater security intersect ... and then does not offer any alternatives or exposition on what other options may be (or have been) considered. I'm left quite unsure of how he then considers sacrificing freedom to achieve security a false choice.
Moving on, this statement
> ... the NSA cannot listen to your telephone calls, and the NSA cannot target your emails … and have not.
directly contradicts the followup statement:
> ... if you’re a U.S. person, then NSA is not listening to your phone calls and it’s not targeting your emails unless it’s getting an individualized court order.
This strikes as more talking points rearing their head without substantive difference in an effort to shape public opinion and discourse. If it is said that the NSA cannot target emails and listen to phone calls, that is going to etch itself into the public consciousness that the technological apparatus required is not present. But the follow up clarifies in nearly identical language that the NSA is not listening/targeting "unless it's getting an individualized court order." So now we are at the opposite side--the NSA can target your emails and listen to your phone calls, despite the aforementioned clarification they cannot. The talking points are keeping things intentionally muddled where they could easily make it more plain. So, barring other intricately worded explanations, this pretty much makes it sound like the NSA can indeed listen to your phone calls and target your emails, but only--as long as the existing rules are being followed--if they secure an "individualized court order" after good old-fashioned probable-cause seeking.
Of course, this is an even more bizarre clarification for the President to make when he later turns his attention to the phone records program. The 2015 Program:
> Program number one, called the 2015 Program, what that does is it gets data from the service providers like a Verizon in bulk, and basically you have call pairs. You have my telephone number connecting with your telephone number. There are no names. There is no content in that database. All it is, is the number pairs, when those calls took place, how long they took place.
Okay, so admission that bulk call data is there, as Snowden alleged with his leaks. Once again, the talking points that this is all metadata--without explicitly using that particular word, though. And yet, it is trivial to connect a phone number to its owner. So, your call data is there in the database with all the information required to identify you specifically should intelligence agencies deem necessary.
The President further clarifies the nature of the reporting in that he says "[a]t no point is any content revealed", a perhaps unfortunate, unintended admission that the content is there. I know the President likes to be very clarifying when speaking and interviewing and somewhat sidetracks mid-sentence to clarify a specific phrase or term (note all the em-dashes littered throughout the text of the interview), but this one is particularly interesting because it reads as if he caught himself mid-un-truth when he jumps mid-sentence to say that if the FBI wants content, they then have to go to the FISC to ask for a warrant to get the content.
Any rational person should, therefore, conclude the content is indeed there to be interrogated, regardless of what the policy for such interrogation may be.
His comments on the 702 program are nigh-unintelligible for such a careful speaker as the President usually is. He tries to disqualify concerns about it by saying it "does not apply to any U.S. person", then describes it as a program that produces "essentially [but not actually] a warrant" that compels private companies who hold communications to turn over the content. Then again, the clarifier that this does not apply to U.S. persons and is only in "narrow bands" of criminal/terrorist activity by foreign agents. He further attempts to posit constitutionality and authority by saying "the process has all been approved by the courts"--but these are not publicly accountable courts whose decisions are made available to we the People.
> ... if people are making judgments just based on these slides that have been leaked, they’re not getting the complete story.
Nevermind that we are only getting a partially complete story--being hidden behind curious clarifications and dubious assertions of state secrets privileges--because of leaked slides.
The big kicker:
> It is transparent. That’s why we set up the FISA court ... My concern has always been not that we shouldn’t do intelligence gathering to prevent terrorism, but rather are we setting up a system of checks and balances?
So, 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, not just the intelligence committee and not just the judiciary committee — but all of Congress had available to it before the last reauthorization exactly how this program works.
This is more informative than most everything else in the interview. The President clarifies that--despite much of what campaign rhetoric made people believe he thought--his concern is not whether we should be enacting these intelligence gathering programs that target everyone and attempt to hide behind policy rules, not laws. His concern is the erection of checks and balances that appear good enough, but none of which actually are explicitly in the way of public discourse and notification.
He relies on a "federal court with independent federal judges" that operate in secret and whose decisions are de facto classified, as well as statistically shown to be rubber stamp decisions.
The biggest allegation is that all of Congress had this information available to them before the last reauthorization of the programs, information that told Congress "exactly how this program works".
Either the President is lying, or Congress is putting on a sham of shock when they were already aware of all of this, or the President is throwing them under the bus for not bothering to read and understand the information before reauthorizing--thus making a move to avert public outrage toward their representatives, all of whom allegedly had this information and ignored it when reauthorizing. Or something else.
I still feel like this interview offers a depressing amount of talking points winning over actual disclosure, and yet another advance of creatively assigning words like "transparency" to programs that are clearly not.
[edit: spelling/grammar mistakes. sorry]