DOCUMENT: ACLU Lawsuit Against Obama Administration Spying On American Citizens
SLATE: After the Guardian’s revelation that the National Security Agency is mining the data of Verizon customers on Thursday, some of my colleagues told me to settle down. Some volunteered to be spied on in exchange for reduced rates. I figured that the level of outrage would rise only if people thought the government had access to the actual content of their communications. But apparently I was wrong. The second shock wave about PRISM—the NSA’s program for vacuuming up online content including “emails, file transfers, photos, videos, chats, and even live surveillance of search terms”—has hit. And my Twitter feed and my email inbox are still filled with jokes and shrugs.
Why is that? To me, it’s kind of a mystery. I’m disturbed by all the secrecy—the secret legal interpretation of the Patriot Act that’s behind the court order to Verizon, as Noah Feldman points out, and the secret decisions of the Foreign Intelligence Surveillance Court, which approves almost every request for information it gets from the government. And I’m also with Rebecca J. Rosen, who traces the history of “security-state creep” and worries about how it is increasing. That’s what creep means, after all. She notes, however, that the Supreme Court dismissed a recent challenge to the 2008 amendments to the Foreign Intelligence Surveillance Act—the law that enables PRISM—because no one who sued could prove that he or she had actually been spied on.
President Obama offered two reassurances Friday. “When it comes to telephone calls, nobody is listening to your telephone calls.” Right, except they’re scrolling through emails and online chats. Oh but wait, “With respect to the Internet and emails, this does not apply to U.S. citizens and it does not apply to people living in the United States.” Right, except that NSA agents only have to be 51 percent sure the target they locate in the mounds of data is foreign. Everyone seems to acknowledge that they will inevitably sweep in “incidental” information about Americans. And when they pick up “U.S. content” by mistake, we are told they will put it into a separate database and then “it’s nothing to worry about.” Yes it is, as Amy Davidson points out. And it is depressing to watch this president become a misleading parser of words in the service of arrogating authority. MORE
NEW YORKER: And why did President Obama sign on, not only to the program but also to the idea that it should grow? According to the Post, the N.S.A. briefing “described the new tool as the most prolific contributor to the President’s Daily Brief.” Did all of this appeal most to Obama’s fear, his curiosity, or a certain sense of his own cleverness? He seems to have acted as a steward not of the law but of some of its worst distortions under his predecessor. This Administration seems to have forgotten that Americans have a perfect right to keep secrets. If there is a legal basis for these programs, then something is wrong with the way the laws in question are written or read—in a way that may be up to the Supreme Court and, through political mechanisms, the public to address. The legalistic tools include the findings of the FISA court, which works in secret. At times, the government seems to rely on redefinitions of ordinary words: the Post notes that, in classified orders, the court “defined massive data sets as ‘facilities,’” as if the private information amassed by a technology company was a single terrorist safe house that the N.S.A. could put under continuous surveillance. MORE
SLATE: If President Obama really does welcome a debate about the scope of the U.S. surveillance program, a good first step would be to fire Director of National Intelligence James Clapper. Back at an open congressional hearing on March 12, Sen. Ron Wyden (D-Ore.) asked Clapper, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper replied, “No sir … not wittingly.” As we all now know, he was lying. We also now know that Clapper knew he was lying. MORE
THE GUARDIAN: If Edward Snowden is ever brought back for trial in the US, he would almost certainly be prosecuted under a law dating back to the first world war and which lawyers say is so broadly worded it would leave the National Security Agency (NSA) whistleblower with little room for a defence. The 1917 Espionage Act has gone through some amendments over the years but its language still reflects the security concerns of a century ago, with references to railroads, forts and telegraphs. But its all-encompassing character has stood the test of time. Section 793 of the law makes it an offence to take, retain or transfer knowledge “with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation”.
The law does not stipulate whether the information involved would have to be classified, as that word was not in usage at the time the act was passed. More importantly from Snowden’s point of view, it says nothing about exemptions for leaks claiming to be in the public interest. “As much as some may want Snowden to be applauded for his actions, as a legal matter his self-stated laudable intentions are irrelevant to his criminal liability. He can only hope that it will play a role in his sentencing,” argued Mark Zaid, a Washington attorney who regularly represents national security whistleblowers. “Having publicly self-admitted his guilt for having illegally leaked classified information, he has eliminated any likely meaningful legal defence. Snowden unfortunately went about his efforts all wrong and missed available opportunities to generate public debate of the NSA programs but still avoid criminal culpability.” MORE