Tuesday, January 21, 2014

Why Rand Paul's Lawsuit against Obama Administration on Spying Could Backfire on the GOP

by Nomad

Exclusive: Rand Paul's latest gimmick about suing the Obama administration over NSA surveillance operations, like PRISM might just backfire.  A thorough review of the legislation of Congress during the Bush era and the mixed messages from the Republican conservatives ever since 2001 could be a major humiliation in the 2014 election year.  But only if American citizens genuinely care about the truth.

The other day Senator Rand Paul of Kentucky announced that he was planning to open a class-action lawsuit against the Obama Administration over the NSA data-collection policies. Never one to miss an opportunity to make an issue into a spectacle, Rand told reporters that people needed to tell the government that it can't have access to emails and phone records without permission or without a specific warrant.  The folks at Brietbart.com and Fox News went all starry-eyed at the news:
This allows the American people to join together in a grassroots manner against President Obama’s NSA for the first time in the legal system, as all other lawsuits have been individuals suing against the agency.
The irony about it is that a quick glance at history will show us that Rand really needs to turn his attention to his own party -even to his own state. The answer to who relaxed the existing (though inadequate) oversight over the NSA is right under Rand's nose.

The Patriot Act and FISA
In the hysteria that followed the terror attacks on New York and Washington in 2001, Americans were more than ready to accept radical measures to thwart further attacks. What resulted was The Patriot Act. How this constitutionally-questionable legislation was ever passed into law reveals so much about how the Bush administration was able to achieve its goals. The techniques used would be used time and time again, right up until the end with the emergency Troubled Asset Relief Program (TARP) bailout.

On October 23, 2001, just over a month after the September 11th attacks, (actually only 25 working days) Republican Rep. Jim Sensenbrenner introduced H.R. 3162 (later to be known as The Patriot Act ) on the House floor. 
In just two days, the bill passed both the House (357 to 66) and the Senate (98 to 1) and was signed into law by President Bush on October 26, 2001.  Thus, one of the most controversial pieces of legislation, one that gave unheard of powers to the executive branch and one that effectively shredded long cherished rights in the Constitution, was passed into law in just three days. 

Had the Congress been a bit less hasty and read the bill more carefully, they might have had second thoughts. Instead most of them were stampeded into approving of legislation which, according to one Congressman, most of them hadn’t even read. Three day is after all a remarkably short time for any legislative process requiring extensive debate, especially one that has been called “an anti-American piece of legislation recognized throughout the civil libertarian community as an assault on American civil liberties.”

(Such expediency- even in the face of possible further terrorist attacks- also opens the door for another question. How could a legal document consisting of 363 pages and 57,896 words have been prepared so quickly? The possibility that the legislation had been prepared in advance I will leave to the conspiracy theorists.)
*    *    *
It is important to note how the Patriot Act was the first step on the slippery slope. A Congressional report published in 2011 explains the effects of The Patriot Act on the FISA, which, as we have seen, attempted to provide oversight on surveillance activities and to prevent the same abuses that resulted before and during the Nixon administration. 
Shortly after the 9/11 terrorist attacks, Congress enacted the USA PATRIOT Act, in part, to “provid[e] enhanced investigative tools” to “assist in the prevention of future terrorist activities and the preliminary acts and crimes which further such activities.” That act and subsequent measures amended FISA to enable the government to obtain information in a greater number of circumstances.
Given the threats involved, that doesn't sound so very terrible. The devil, as the cliche goes, is in the details. 
One of things that the Patriot Act amended was the range of targeted individuals and the criteria for obtaining a court order to conduct surveillance.   It was argued that FISA, through its system of court warrants, restricted intelligence agencies from collecting information on so-called “lone wolves.”   Not terrorist groups, but individuals, anybody willing to resort to violence to make a political point.

Until that time, the evidence for a warrant depended on proof of some kind of “chain of command” from, say, Bin Laden, and any of his sleep cell members. It was argued that El-Qaeda was not structured in this way. Often individuals acted on their own volition and not under orders from the top. 
While it may be true, the loosening of those restrictions had the far reaching effects. Thus, one didn't have to belong to any terror organization to fall under the spotlight. Suddenly your neighbor, your boss, the bus driver, your spouse, your son  or daughter could be put on the invisible terrorist list.  

A Closer Look
Another critical amendment was the Section 206. This provision allowed intelligence agencies greater flexibility. A court order could be based on the targeted individual and not on his/her phone or IP number. All possible electronic communication linked to the individual would apply. The fact that IP numbers are not a very good means ofidentifying individuals seems to have escaped them. Peer-to-peer networks and hacking both render IP identification null and void.

Finally one key amendment to the FISA laws was Section 215. This broadened the types of records and other tangible things that can be made accessible to the government under FISA. From now on, all private records, from emails, telephone calls, faxes, banking transactions, Facebook pages, Internet activity, medical files, ATM transactions. As we have seen in the history of surveillance, first the violations began with letters, then telegrams, then telephones and finally, under the Patriot Act all electronic communication was unprotected by privacy rights.

But there was even more worrying changes to the laws. From now on, the Fourth Amendment which protects citizens against “unreasonable searches and seizures” no long applied- the constitutional basis of privacy laws in the Constitution did not apply.  In this brave new world, according to the courts, FISA warrants were exempt from any Fourth Amendment analysis. 
Thus, the Bush administration, with the 911 attacks as a pretext, had successfully found a way to circumvent the very constitution the president had sworn to uphold.

Four Years Later
Eventually - and it took an extraordinarily long time- journalists threw a spotlight on the true extent of domestic spying by the NSA. TheNew York Times reported back in December 2005,
Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
As we have seen in other posts, even before the terrorist attacks of 2001, the NSA had its ECHELON program. The attacks gave the Bush administration the excuse to broaden these capabilities much much further.

After the NYT stories, lawsuits followed. Further, the Foreign Intelligence Surveillance Court (which is supposed to oversee NSA operations) forced the now- outed Bush administration to end and explain its spying programs. However, instead of discontinuing the programs as ordered, the administration simply found a way look for other ways to carry on with their surveillance operations. From this morass, PRISM was born.
When it came to disposing of your constitutional right to privacy, Congress was only too happy to help. Republicans have always- at least until now- prided themselves on the perception that the GOP is tough on national security. As the Washington Post reminds us:
Congress obliged with the Protect America Act in 2007 and the FISA Amendments Act of 2008, which immunized private companies that cooperated voluntarily with U.S. intelligence collection. PRISM recruited its first partner, Microsoft, and began six years of rapidly growing data collection beneath the surface of a roiling national debate on surveillance and privacy. Late last year, when critics in Congress sought changes in the FISA Amendments Act, the only lawmakers who knew about PRISM were bound by oaths of office to hold their tongues.
The public was kept in the dark, of course. But the effect of these amendments were disastrous for privacy.
The court-approved program is focused on foreign communications traffic, which often flows through U.S. servers even when sent from one overseas location to another. Between 2004 and 2007, Bush administration lawyers persuaded federal FISA judges to issue surveillance orders in a fundamentally new form. Until then the government had to show probable cause that a particular “target” and “facility” were both connected to terrorism or espionage.
All of this puts into question of reasonable suspicion. As we shall see, this was only the beginning.

A Leak from Above?
In August  2007 Protect America Act in 2007 (PPA) passed both Houses of Congress. As one source puts it:
The administration capitalized on Democrats’ fears of being branded weak on terrorism and on Congress’s desire to act on the issue before its August recess.”
Coincidentally, on July 1 2007, a month before the vote, secret reports from the Department of Homeland Security to news organizations warnings that al Qaeda is planning a terror "spectacular" this summer.
"This is reminiscent of the warnings and intelligence we were getting in the summer of 2001," the official told ABCNews.com.
As if to underscore the value of reliable surveillance collection, the report hinted at possible terror attacks in either Prague or Glasgow. Interestingly, according to the report at the time:
The warnings apparently never reached officials in Scotland, who said this weekend they had received "no advance intelligence" that Glasgow might be a target.
So was the leak referring to a past event or a future one? If this was a serious future threat then the scenario is quite strange indeed. Despite the possibility of a spectacular attack on the scale of 911, nobody saw fit to inform the Scots.
Homeland Security Secretary Chertoff declined to comment specifically on on the report today, but said "everything that we get is shared virtually instantaneously with our counterparts in Britain and vice versa."
Did the British security forces forget to tell the Scots too?
To make matters even more confusing, an attack on Glasgow International Airport had already happened a few days before the leak. The car bomb attack was hardly on a scale anything like the attacks of 2001. One of the three attackers died in the attempt and resulted in minor damage to the outside of the airport.

Perhaps then, this was an example of a surveillance success. But if so, why was it not hailed as such by the Bush administration? On the other hand, if there was actionable intelligence- which is after all what the spying is supposed to provide, then  why  were no special precautions were taken by the authorities to prevent any potential loss of life to travelers at the airport? The reactions to the attack seem to show officials caught unaware, with passengers reportedly "left in aircraft for up to ten hours after the event." Leaving passengers trapped in planes unable to defend themselves- sitting ducks on the tarmac- is hardly proper protocol, I'd think.

Given the suspicious circumstances of the timing of the leak, it's reasonable to ask whether this leaking to a compliant news organization was simply a way to ensure the passage of the PPA in Congress only a month later. If that was the case, that Bush officials essentially stage-managed events by releasing leaks of old news to make it look fresh, then the plan succeeded.

The Protect America Act Stampede
Let's take a closer look at the first of these two bills that led to the PRISM scenario.
As soon as Protect America Act was introduced in the spring of that year, Bush Administration officials registered their disapproval. Not that it violated citizen privacy rights.
Quite the opposite, according to one report:
A joint statement from the Department of Justice and the office of the director of national intelligence said that based on initial reports, "We are concerned that the proposal would not provide the intelligence community the critical tools needed to protect the country."
One of the biggest sticking points was the issue of liability and immunity from prosecution for telecommunication firms that cooperated with the NSA. The statement noted:
"Exposing the private sector to continued litigation for assisting in efforts to defend the country understandably makes the private sector much more reluctant to cooperate. Without their cooperation, our efforts to protect the country cannot succeed"
After much debate that summer, what resulted was much more to the administration's liking. The proposed draft  removed the warrant requirement for government surveillance of foreign intelligence targets "reasonably believed" to be outside of the United States.  It is important to note that the amendments to the law terminated 180 days after its enactment.

Looking that the yeas and neas in the Senate vote, it is clear to how the Republican party felt about privacy concerns during the Bush administration. In a 60-28 vote to pass the bill, the overwhelming majority were Republican: 42 Republican Senators to a mere 17. On the other side, not one Republican Senator voted against this bill. Six Republicans did not vote at all. 

Who was the sponsor of this bill? Well, none other than Republican Senator Mitch McConnell from Rand Paul's home state of Kentucky.

Just to give it that little "oomph" McConnell warned the legislators prior to a summer recess that “Al-Qaeda is not going on vacation this month.” As if the point wasn't already clear, he added  "And we can't either until we know we've done our duty to the American people."

Democrat Joseph Lieberman (D-CT), a supporter of the bill, told his colleagues: “We’re at war. The enemy wants to attack us. This is not the time to strive for legislative perfection.” 

The hysteria from the Right seemed to have no limit. For instance,  Minority Leader Trent Lott (R-MS) told lawmakers  had to pass the PAA because, he suggested, an attack on Washington was imminent. He warned that “the disaster could be on our doorstep" and as if he was privy to some intelligence (in both senses of the word) he told them “I think it would be good to leave town in August, and it would probably be good to stay out until September the 12th.”

Republican House member Lamar Smith of Texas- the man behind the unfortunate Stop Online Piracy Act (SOPA) bill- warned his fellow lawmakers against allowing the provisions of the Patriot Act to expire.
We are safe today because the men and women of our Armed Forces, our intelligence community, and our law enforcement agencies work every single day to protect us. And Congress must ensure that they are equipped with the resources they need to counteract continuing terrorist threats. On Feb. 28, three important provisions of the USA PATRIOT Act will expire. These provisions give investigators in national security cases the authority to conduct "roving" wiretaps, to seek certain business records, and to gather intelligence on lone terrorists who are not affiliated with a known terrorist group. The Patriot Act works. It has proved effective in preventing terrorist attacks and protecting Americans. To let these provisions expire would leave every American less safe.
In a mere five days, the debate was over. The bill passed the House, then the Senate and was signed by Bush on August 5, 2007. 

Democrats Playing Dead
Many Democrats at the time expressed their concerns about the way things were handled. They felt they had been railroaded by the Bush administration and its allies in Congress. For example, House Democrat Jane Harman of California warned that PAA would lead to  “potential unprecedented abuse of innocent Americans’ privacy.”
Even one Republican add his voice, as one source tells us:
Representative Jerrold Nadler (R-NY) says lawmakers were “stampeded by fear-mongering and deception” into voting for the bill.
It was, in fact, the Patriot Act scenario all over again. As the ACLU spokeperson said of the Democrats:
“Whenever the president says the word terrorism, they roll over and play dead.”
The Democrats had been outmaneuvered by the Republicans and the NSA was now free to do as it wished without fear of repercussion.

Even at the time of the signing there were warnings about what the bill would do to civil liberties. The Center for National Security Studies (CNSS) issues a warning about the Protect America Act. The PAA, the organization warned, would allow the NSA conduct warrant-less surveillance against US citizens “without any meaningful judicial oversight.”  It also provided  the NSA almost unlimited access to almost all international communications that originate in, pass through, or terminate with a US citizen, again without oversight.
According to the CNSS statement, the  Bush administration refused to countenance any suggestion that the NSA should be restricted to focusing on foreigners, terrorist targets, or conducting surveillance that could be construed as necessary to national security, as well as refusing to allow any meaningful judicial or Congressional oversight. 

Among the many names that warned about the Republican-led crusade to give the NSA virtually unlimited powers was a familiar one. Former White House counsel during the Nixon administration and the man whose testimony played such a crucial role in bringing about reforms, John Dean.
He voiced his private concerns about returning to an era of free-wheeling executive power:
“Congress was not even certain about the full extent of what it has authorized because President Bush and Vice President Cheney refused to reveal it.”
Where was the Republican outrage over government snooping then? Nowhere to be seen. 
*   *   *
The FISA Amendment Follow Up
The Bush administration was not quite finished with its assault on privacy rights. As the PAA sunset approach, the debate began anew with FISA Amendments Act of 2008. This legislation was a continuation of the Protect America Act of 2007, which had a limited duration. 
The draft bill was sponsored by House Democrat from Texas' 16th district Silvestre "Silver" Reyes who at that time was Chairman of the House Permanent Select Committee on Intelligence (2007 -2011). In some ways, the bill was the answer to the GOP claim of Democrats being soft on security. That version passed the House vote by a 293 to 129 vote.

The Senate version of  the FISA Amendments Act was controversial to say the least. Importantly, the two versions  differed in one key respect.  The Senate version  gave telecommunications companies legal immunity for agreeing to participate in the surveillance. The Democrat's House version, on the other hand, gave no such immunity and proposed that lawsuits against the phone companies could move forward through U.S. district courts. It was thought (hoped?) that the possibility of legal action would have a chilling effect on telecommunication firms collaboration with the government.

After much wrangling, a compromise of sorts was worked out. Basically some fine-print foolery. According to the Washington Post:
The agreement gives telecom companies the ability to have privacy lawsuits thrown out if they demonstrate to a federal judge that they received written assurance from the Bush administration that the spying was legal.
The written assurance, in theory, allowed telecommunication firms to escape prosecution for violations. It could be argued that his oversight was a mere formality. Nevertheless it did exist.
The bill requires approval by the secret FISA court of procedures for intercepting foreigners' e-mails and telephone calls. Spying on U.S. citizens, including those overseas, would require individual warrants from the same court.
Without those assurances- as weak as they were- Democratic Senators would probably never have passed it. There in fact, already more than three dozen civil lawsuits pending against AT&T as well as America's largest telecom providers. Journalist, activists and customers were claiming - with some validity- that telecoms had been violating their constitutional right to privacy. (The very same charge made by Rand Paul today.)

Obama's Fatal Flip
To the dismay of his liberal supporters, then-Senator Obama, who had months earlier publicly denounced the legislation- now  supported the draft bill with one exception: the immunity clause. He was careful to qualify that support.
"Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as president, I will carefully monitor the program."
Whether you agree or not, it sounds like a well-thought-out position at least. In June of that year, Obama had this to say about the surveillance program.
“It is a close call for me but I think the current legislation with exclusivity provision that says that a president — whether George Bush, myself or John McCain — can’t make up rationales for getting around FISA court, can’t suggest that somehow that there is some law that stands above the laws passed by Congress in engaging in warrantless wiretaps.”
It was in fact considered at the time a flip-flop from his earlier position, rejecting the bill altogether. Presidential candidate Obama, in the end, didn't cast a vote at all and instead hit the campaign trail. From there, he issued a statement saying he was proud to stand with "a grassroots movement of Americans who are refusing to let President Bush put protections for special interests (telecoms) ahead of our security and our liberty." 
(Ironically and against all logic, this role of rebel against the evil administration is now being taken up by Republican Rand Paul.)

At the time, some claimed that the 114-page bill was pushed through the House so quickly that there was no real time to debate its many complex provisions. (Echoes of the Patriot Act, echoes of the PPA.)

The fine print was not so fine that some sharp-eyed journalists couldn't see the far reaching consqences of the legislation. Timothy B. Lee, writing for Ars Technica, explained:
Specifically, the new legislation dramatically expands the government's ability to wiretap without meaningful judicial oversight, by redefining "oversight" so that the feds can drag their feet on getting authorization almost indefinitely. It also gives the feds unprecedented new latitude in selecting eavesdropping targets, latitude that could be used to collect information on non-terrorist-related activities like P2P copyright infringement and online gambling. In short, the FISA Amendments Act of 2008 opens up loopholes so large that the feds could drive a truck loaded down with purloined civil liberties through it.
(This is probably the best link in this post, by the way.)

Sen. Hillary Clinton voted against the bill. Senator John McCain supported the Senate bill in its entirety but, like Obama, did not show up for the vote. The numbers overall clearly show that the debate closely followed party lines. The Republicans were in nearly full support for giving greater power to the NSA, the Democrats were less sure.
"The Democrats believed they were giving the administration the powers it needed to fight terrorism while preserving some measure of oversight and privacy protections for Americans."
The Ever-Changing Position of the GOP
Now here's the kicker.
At that time, support for the bill was considered such a winning cause that one conservative source advised the Republican candidate to make a centerpiece of McCain's presidential campaign.  Republican campaign ads ran with the ominous phrase:
"The terrorist threat to America never expires."
But there's so much more. Take a look at this:
Andy McCarthy and the editors of National Review that Senator McCain should come out loudly, forcefully and publicly in favor of immediate passage of bipartisan legislation now being debated on the Senate floor to reauthorize and modernize procedures for gathering intelligence on foreign terrorists. Without immediate action by the Senate, our nation will face gaps in our ability to track and interdict terrorist plots - yet left-wing activists and bloggers want to stall the bill and are pressuring Democratic Senators, including Senator Clinton and Senator Obama, to prevent the bill's passage or water it down through onerous amendments.
Holy Mirror-world, Batman! That's hardly the position that the Republicans (and all of the foxes at Fox News) take today following the Snowden disclosures.

Upon signing the FISA reform bill, President Bush gave his approval of the passage of the increased powers of NSA by these so-called reforms, saying:
"It's vital that our intelligence community has the ability to learn who the terrorists are talking to, what they're saying and what they are planning."
Referring to the immunity provision, Bush went on to say:
"It will ensure that those companies whose assistance is necessary to protect the country will, themselves, be protected from lawsuits for past or future cooperation with the government."
And that, as they say, was that. That's how Americans lost their privacy for the sake of security.
Most voters never knew the difference.

Complainer's Conumdrum: Sarah Palin and Paul Rand

This brings us up to date. 
We suddenly find the conservatives in 180 mode and quite a spectacle it is. Where once they crusaded for less restrictions to surveillance, they are now condemning Obama's snooping. Fox News once rallied behind President Bush as his administration methodically removed all of the oversight designed to protect the average citizen from unwarranted surveillance. All in the name of getting tough on terrorism. 
Now, it is all about protecting constitutional rights- something they didn't give a hoot about during the panic-stricken Bush years.

The Right Wing clearly wants to have it both ways. Until very recently -conservatives claimed -without much merit-  that Obama was soft on terrorism. Weak, weak weak was the Republican drum beat. And why not? That tactic had always worked before. As late as 2010, Fox News' Sean Hannity said of Obama's approach to combating terrorism,
Obama is weak. He's an appeaser. Obama is making this country and every citizen vulnerable to attack."
Around the same time, following Obama 2010 State of the Union speech, former CIA official Gary Berntsen told Fox & Friends audiences that Obama's "performance has been weak in national security. " 

Always one to snatch a little undeserved attention, Sarah Palin in her role as Fox News analyst told viewers in 2010:
President Obama's meeting with his top national security advisers does nothing to change the fact that his fundamental approach to terrorism is fatally flawed. We are at war with radical Islamic extremists and treating this threat as a law enforcement issue is dangerous for our nation's security.
In the same rant she goes on to suggest that anybody accused of being a terrorist had no right to due process in court where they can "publicly grandstand" (smell the irony in that phrase!) or defense attorneys who "can manipulate the legal process to gain access to classified information." This would imply that she feels that security measures -beyond merely enforcing the law- are in order. But doesn't enforcement of the law require that the executive power also follow the law? 

According to Palin, therefore, President Obama, in following the constitution, was being too soft on terrorists. Prohibitions on executive power were always the reason for careful oversight on surveillance, back to the Shamrock Program.

But in 2014, in a complete reversal, the same people are claiming that the president has allowed the NSA to get out of control. Even more strangely, there are people- like Palin- who now seem unable to decide and therefore choose to criticize the Obama administration for both allowing NSA to spy a bit too freely as well as being soft of terrorism. During the height of the Snowden debacle when the winds of public opinion were changing, she told audiences:
“Our government spied on every one of your phone calls, but they couldn’t find two pot-smoking deadbeat Bostonians with a hotline to terrorist central in Chechnya,
But hold up, there. Bristol Palin, her own daughter, had a love child with a pot-smoking, dead-beat and Mama Palin was not able to detect that.. in her own home.
And it’s built an apparatus to sneak into all of the good guy’s communications, but whoopsie daisy, it missed the Fort Hood mass murder of our troops despite this Islamic terrorist declaring his ideology in numerous army counseling sessions and even on his own business cards.”
(As we have seen, the Obama Administration did not "build an apparatus" at all. That began long ago and it was the Bush administration completed its construction. She herself during the 2008 campaign was one of the strongest supporters for that strengthening that apparatus for sneaking into all of the good guy's communication.)

Those kind of folksy mannerisms might play well enough at a bar over beers but there's one problem for Sarah. Which is it? More snooping or less snooping? As usual, Sarah tends to be big on complaints but short of recommendations.

However, even analysts in her own party disagree with her idea that the number of terrorist attacks has anything to do with who is president. Ted Bromund, a senior fellow at the conservative Heritage Foundation called such backward thinking "solipsism" -- that is, extreme self-centeredness -- "for any American to assume that our own short- to medium-term actions will have much of an impact on jihadist recruiting."
Extreme self-centeredness would fit pretty accurately with all things Palin. Bromund threw another bucket of cold water on Palin's grumbling:
"Islamists have their own ideology, and states like Iran have their own interests, which are not simply a mirror reflection of us and our actions. Therefore, we should carry out policies that are in accord with our interests and values and not fall into the habit of believing that the problems of the world are really all about us."
Of course, as we have seen, not every terrorist is a member of the Islam faith. Are presidents supposed to tailor their policies based on every hate-filled ideology? 

Republican Senator Rand Paul is now attempting to take legal action against the Obama administration for NSA spying. Perhaps we should welcome a full disclosure of the true timeline, naming the names and shedding more light on how privacy rights slipped from our hands. 
Allowing the truth to come out could go along way in fulfilling the Tea Party dream of destroying what's left of the Republican party.
In past post, we have gone back still further into the history of America's surveillance network. A prequel to PRISM. Here is PART ONE and PART TWO.