{"id":1850,"date":"2014-01-06T06:30:57","date_gmt":"2014-01-06T11:30:57","guid":{"rendered":"http:\/\/www.dougsbriefcase.com\/blog\/?p=1850"},"modified":"2014-01-10T07:42:03","modified_gmt":"2014-01-10T12:42:03","slug":"detached-president-obama-just-nsa-needs","status":"publish","type":"post","link":"https:\/\/www.dougsbriefcase.com\/blog\/detached-president-obama-just-nsa-needs\/","title":{"rendered":"A Detached President Could Be Just What the NSA<\/span> Needs"},"content":{"rendered":"
\"President

Pres\u00adi\u00addent Oba\u00adma was described as \u201cimpa\u00adtient\u201d and \u201cdis\u00aden\u00adgaged\u201d dur\u00ading brief\u00adin\u00adgs on last year\u2019s Syr\u00adia cri\u00adsis. That sense of detach\u00adment could lead him to a con\u00adstruc\u00adtive res\u00ado\u00adlu\u00adtion of the NSA<\/span> snoop\u00ading con\u00adtro\u00adver\u00adsy. [Cred\u00adit: Pumas Unleashed]<\/p><\/div>\n

Even as the debate about arm\u00ading the [Syr\u00adi\u00adan] rebels took on a new urgency, Mr. Oba\u00adma rarely voiced strong opin\u00adions dur\u00ading senior staff meet\u00adings. But cur\u00adrent and for\u00admer offi\u00adcials said his body lan\u00adguage was telling: he often appeared impa\u00adtient or dis\u00aden\u00adgaged while lis\u00adten\u00ading to the debate, some\u00adtimes scrolling through mes\u00adsages on his Black\u00adBer\u00adry or slouch\u00ading and chew\u00ading gum.<\/em><\/p>\n

New York Times<\/a>,<\/span> Octo\u00adber 22, 2013<\/p>\n

A Pres\u00adi\u00addent has enor\u00admous demands on his time and atten\u00adtion. He can\u2019t focus on every\u00adthing. He must choose. Pres\u00adi\u00addent Oba\u00adma, if the New York Times<\/em> account is to be believed, chose to be \u201cimpa\u00adtient\u201d and \u201cdis\u00aden\u00adgaged\u201d as his advis\u00aders last year pre\u00adsent\u00aded him with options on Syr\u00adia, per\u00adhaps explain\u00ading why he fol\u00adlowed what the Times<\/em> termed \u201can uncer\u00adtain path amid Syr\u00adi\u00adan bloodshed.\u201d<\/p>\n

The dis\u00aden\u00adgage\u00adment from mat\u00adters of nation\u00adal secu\u00adri\u00adty that served him so poor\u00adly through\u00adout the Syr\u00adi\u00adan affair might unique\u00adly suit him to resolve the con\u00adtro\u00adver\u00adsy over whether the gov\u00adern\u00adment should con\u00adtin\u00adue to gath\u00ader large vol\u00adumes of data about US<\/span> citizens.<\/p>\n

The NSA<\/span>\u2019s tele\u00adpho\u00adny meta\u00adda\u00adta col\u00adlec\u00adtion pro\u00adgram, recent\u00adly renewed<\/a> for an addi\u00adtion\u00adal three months by the For\u00adeign Intel\u00adli\u00adgence Sur\u00adveil\u00adlance Court [FISC<\/span>], has been con\u00adtest\u00aded in Con\u00adgress and the courts since it was made pub\u00adlic by for\u00admer NSA<\/span> con\u00adtrac\u00adtor Edward Snow\u00adden last June<\/a>. Fed\u00ader\u00adal Dis\u00adtrict Court Judge Richard Leon last month found the pro\u00adgram like\u00adly uncon\u00adsti\u00adtu\u00adtion\u00adal<\/a> but stayed his own order to ter\u00admi\u00adnate pro\u00adgram, pend\u00ading appeal. The gov\u00adern\u00adment on Fri\u00adday for\u00admal\u00adly asked an appeals pan\u00adel<\/a> to over\u00adturn Leon\u2019s ruling.<\/p>\n

Late last month, in a sep\u00ada\u00adrate but relat\u00aded case, anoth\u00ader fed\u00ader\u00adal judge upheld the pro\u00adgram<\/a>. Judge William Pauley\u2019s opin\u00adion is a curi\u00adous one, devot\u00ading just 7 of its 54 pages to the ques\u00adtion of whether col\u00adlect\u00ading phone records on all Amer\u00adi\u00adcans vio\u00adlates the Fourth Amendment\u2019s<\/a>  pro\u00adhi\u00adbi\u00adtion against unrea\u00adson\u00adable search\u00ades and seizures. For Pauley, the Supreme Court\u2019s 1979 rul\u00ading in Smith v. Mary\u00adland<\/a> jus\u00adti\u00adfies that pro\u00adgram. In that case, police obtained the phone records of a rob\u00adbery sus\u00adpect who had made threat\u00aden\u00ading and sex\u00adu\u00adal\u00adly harass\u00ading phone calls to his vic\u00adtim, help\u00ading them obtain a con\u00advic\u00adtion. The court ruled that the sus\u00adpect had no rea\u00adson\u00adable expec\u00adta\u00adtion of pri\u00adva\u00adcy with respect to those phone records. The facts in that case are indis\u00adtin\u00adguish\u00adable from those sur\u00adround\u00ading the NSA<\/span> pro\u00adgram, accord\u00ading to Pauley, despite the fact that the pro\u00adgram involves what he termed \u201cthe col\u00adlec\u00adtion of breath\u00adtak\u00ading amounts of infor\u00adma\u00adtion\u201d [p. 42].<\/p>\n

Hav\u00ading brushed aside con\u00adsti\u00adtu\u00adtion\u00adal con\u00adcerns, Pauley devotes much of his opin\u00adion to defend\u00ading the pro\u00adgram, begin\u00adning with an account of the 9\/11 ter\u00adror\u00adist attacks. Crit\u00adi\u00adcal infor\u00adma\u00adtion in advance of the attacks, he opines, \u201cwould have fur\u00adnished the miss\u00ading infor\u00adma\u00adtion and might have per\u00admit\u00adted the NSA<\/span> to noti\u00adfy the [FBI<\/span>] of the fact that [one of the sus\u00adpects] was call\u00ading the Yemeni safe house from inside the Unit\u00aded States\u201d [pp 1\u20132]<\/p>\n

That spec\u00adu\u00adla\u00adtion \u2013 that the gov\u00adern\u00adment might have acquired infor\u00adma\u00adtion that it might have used to foil an act of unspeak\u00adable destruc\u00adtion \u2013 per\u00adme\u00adates the rul\u00ading. The pro\u00adgram, Pauley writes:<\/p>\n

Vac\u00adu\u00adums up infor\u00adma\u00adtion about vir\u00adtu\u00adal\u00adly every tele\u00adphone call to, from or with\u00adin the Unit\u00aded States. That is by design, as it allows the NSA<\/span> to detect rela\u00adtion\u00adships so atten\u00adu\u00adat\u00aded and ephemer\u00adal they would oth\u00ader\u00adwise escape notice. As the Sep\u00adtem\u00adber 11th attacks demon\u00adstrate, the cost of miss\u00ading such a thread can be hor\u00adrif\u00adic. Tech\u00adnol\u00ado\u00adgy allowed al-Qae\u00adda to oper\u00adate decen\u00adtral\u00adized and plot inter\u00adna\u00adtion\u00adal ter\u00adror\u00adist attacks remote\u00adly. The bulk tele\u00adpho\u00adny meta\u00adda\u00adta col\u00adlec\u00adtion pro\u00adgram rep\u00adre\u00adsents the Government\u2019s counter-punch: con\u00adnect\u00ading frag\u00adment\u00aded and fleet\u00ading com\u00admu\u00adni\u00adca\u00adtions to re-con\u00adstruct and elim\u00adi\u00adnate al-Qaeda\u2019s ter\u00adror net\u00adwork [p. 52].<\/p><\/blockquote>\n

I\u2019ve writ\u00adten pre\u00advi\u00adous\u00adly<\/a> about why I believe the pro\u00adgram to be uncon\u00adsti\u00adtu\u00adtion\u00adal. The Fourth Amend\u00adment secures our right \u201cto be secure in [our] per\u00adsons, hous\u00ades, papers, and effects, against unrea\u00adson\u00adable search\u00ades and seizures.\u201d Before col\u00adlect\u00ading infor\u00adma\u00adtion about us, the gov\u00adern\u00adment must show \u201cprob\u00ada\u00adble cause\u201d in order to obtain a war\u00adrant \u201cpar\u00adtic\u00adu\u00adlar\u00adly describ\u00ading the place to be searched, and the per\u00adsons or things to be seized.\u201d War\u00adrants issued by the secret FISC<\/span> are any\u00adthing but spe\u00adcif\u00adic. They autho\u00adrize, as Judge Leon wrote, \u201ccon\u00adtin\u00adu\u00adous, dai\u00adly search\u00ades of vir\u00adtu\u00adal\u00adly every Amer\u00adi\u00adcan cit\u00adi\u00adzen with\u00adout any par\u00adtic\u00adu\u00adlar\u00adized sus\u00adpi\u00adcion\u201d [p. 58], a pow\u00ader that \u201cno court has ever recognized.\u201d<\/p>\n

Con\u00adsti\u00adtu\u00adtion\u00adal infir\u00admi\u00adties aside, Pauley\u2019s opin\u00adion is inter\u00adest\u00ading for the depth of its faith in the gov\u00adern\u00adment. The gov\u00adern\u00adment must cast \u201ca wide net that could find and iso\u00adlate gos\u00adsamer con\u00adtacts among sus\u00adpect\u00aded ter\u00adror\u00adists in an ocean of seem\u00ading\u00adly dis\u00adcon\u00adnect\u00aded data,\u201d Pauley writes [p. 2]. Giv\u00aden enough data, enough infor\u00adma\u00adtion, enough knowl\u00adedge, the gov\u00adern\u00adment will \u201celim\u00adi\u00adnate al-Qaeda\u2019s ter\u00adror network.\u201d<\/p>\n

That con\u00adfi\u00addence seems to be wide\u00adly shared among cur\u00adrent and for\u00admer intel\u00adli\u00adgence offi\u00adcials. The for\u00admer deputy direc\u00adtor of the CIA<\/span> Coun\u00adtert\u00ader\u00adror\u00adist Cen\u00adter, Philip Mudd, recent\u00adly took to the pages of the Wall Street Jour\u00adnal<\/a><\/em> to praise the government\u2019s grow\u00ading efforts to fol\u00adlow the dig\u00adi\u00adtal trails we leave when\u00adev\u00ader we make a phone call, send a text, use social media or con\u00adnect to a website.<\/p>\n

Human sur\u00adveil\u00adlance oper\u00ada\u00adtions are slow, inef\u00adfi\u00adcient and cost\u00adly. And they have a high\u00ader risk of miss\u00ading mem\u00adbers of the net\u00adwork. The fastest, most effi\u00adcient solu\u00adtion to map\u00adping a net\u00adwork of con\u00adspir\u00ada\u00adtors lies in fol\u00adlow\u00ading dig\u00adi\u00adtal con\u00adnec\u00adtions among peo\u00adple. And as dig\u00adi\u00adtal trails expand, dig\u00adi\u00adtal net\u00adwork map\u00adping will increase in val\u00adue. \u2026 Our dig\u00adi\u00adtal trails will grow as more of our lives appear in bits and bytes, in records held by tomor\u00adrow\u2019s Ama\u00adzons and Face\u00adbooks. And we know that to piece togeth\u00ader net\u00adworks, law enforce\u00adment and intel\u00adli\u00adgence will use these data streams and need his\u00adtor\u00adi\u00adcal data to do so.<\/p><\/blockquote>\n

Mudd illu\u00admi\u00adnates the moti\u00adva\u00adtion behind the mas\u00adsive data col\u00adlec\u00adtion scheme: to stop ter\u00adror\u00adists, gov\u00adern\u00adment requires a form of omni\u00adscience. In his esti\u00adma\u00adtion, tra\u00addi\u00adtion\u00adal intel\u00adli\u00adgence tools are of lit\u00adtle val\u00adue. Sur\u00adveil\u00adlance based on par\u00adtic\u00adu\u00adlar and rea\u00adson\u00adable sus\u00adpi\u00adcion \u2013 he cites the exam\u00adple of Soma\u00adlian expats who pay cash for one-way tick\u00adets to coun\u00adtries bor\u00adder\u00ading Soma\u00adlia \u2013 just doesn\u2019t cut it any\u00admore. The gov\u00adern\u00adment must \u201cmap[] dig\u00adi\u00adtal inter\u00adac\u00adtions among peo\u00adple.\u201d All peo\u00adple. And it must retain that data for\u00adev\u00ader, the bet\u00adter to dis\u00adcern sus\u00adpi\u00adcious patterns.<\/p>\n

Mudd and Pauley betray an exces\u00adsive reliance on government\u2019s capa\u00adbil\u00adi\u00adties and good\u00adness. Like pro\u00adgres\u00adsives who argue for more cen\u00adtral\u00adized con\u00adtrol of the econ\u00ado\u00admy, Mudd believes that gov\u00adern\u00adment can improve our lives only if it acquires more knowl\u00adedge and pow\u00ader. The prob\u00adlem with this rea\u00adson\u00ading is that it pre\u00adsumes an all-know\u00ading and all-com\u00adpe\u00adtent gov\u00adern\u00adment \u2014 one that can col\u00adlect data on hun\u00addreds of mil\u00adlions (and per\u00adhaps bil\u00adlions) of peo\u00adple, mine it, iden\u00adti\u00adfy and fol\u00adlow up on every sol\u00adid piece of evi\u00addence, find the bad guys and arrest them before they act.<\/p>\n

That gov\u00adern\u00adment exists only in the realm of imag\u00adi\u00adna\u00adtion; in the real world, gov\u00adern\u00adment is pop\u00adu\u00adlat\u00aded with nor\u00admal human beings who often miss the most obvi\u00adous trails of sus\u00adpi\u00adcion that ter\u00adror\u00adists cre\u00adate before they car\u00adry out their attacks.  Con\u00adsid\u00ader last year\u2019s Boston Marathon bomb\u00adings. Act\u00ading on a 2011 request from the Russ\u00adian gov\u00adern\u00adment, the FBI<\/span><\/a>:<\/p>\n

Checked US<\/span> gov\u00adern\u00adment data\u00adbas\u00ades and oth\u00ader infor\u00adma\u00adtion to look for such things as deroga\u00adto\u00adry tele\u00adphone com\u00admu\u00adni\u00adca\u00adtions, pos\u00adsi\u00adble use of online sites asso\u00adci\u00adat\u00aded with the pro\u00admo\u00adtion of rad\u00adi\u00adcal activ\u00adi\u00adty, asso\u00adci\u00ada\u00adtions with oth\u00ader per\u00adsons of inter\u00adest, trav\u00adel his\u00adto\u00adry and plans, and edu\u00adca\u00adtion his\u00adto\u00adry. The FBI<\/span> also inter\u00adviewed Tamer\u00adlan Tsar\u00adnaev and fam\u00adi\u00adly members.<\/p><\/blockquote>\n

After all of that, the agency con\u00adclud\u00aded Tsar\u00adnaev posed no threat.  Two years lat\u00ader, he and his broth\u00ader com\u00admit\u00adted the atroc\u00adi\u00adty.  That is not to fault the FBI<\/span> or oth\u00aders engaged in gov\u00adern\u00adment coun\u00adtert\u00ader\u00adror\u00adism. The jobs they do are enor\u00admous\u00adly dif\u00adfi\u00adcult and enor\u00admous\u00adly valu\u00adable and they are bound to miss things from time to time. It is only meant to illus\u00adtrate that the gov\u00adern\u00admen\u00adt\u2019s data\u00adbas\u00ades and sur\u00adveil\u00adlance capa\u00adbil\u00adi\u00adties, even when appro\u00adpri\u00adate\u00adly direct\u00aded at an indi\u00advid\u00adual sus\u00adpect\u00aded of ter\u00adror\u00adist incli\u00adna\u00adtions, don\u2019t work the way that Mudd and Pauley imag\u00adine that they do.<\/p>\n

That\u2019s also true of ter\u00adror\u00adist attacks on over\u00adseas US<\/span> facil\u00adi\u00adties. The New York Times<\/a><\/em> last week ran a major sto\u00adry on the Sep\u00adtem\u00adber 2012 ter\u00adror\u00adist attack in Beng\u00adhazi. Much has been made of its report that the attack\u00aders, who stormed the com\u00adpound with Kalash\u00adnikovs in their ini\u00adtial assault, had seen a YouTube video that many Mus\u00adlims found offen\u00adsive and that they were not asso\u00adci\u00adat\u00aded with al-Qae\u00adda, but with a less\u00ader known ter\u00adror\u00adist enter\u00adprise called Ansar al-Sharia. The rel\u00ade\u00advant point here is that sym\u00adpa\u00adthet\u00adic Libyans had warned US<\/span> offi\u00adcials of an immi\u00adnent ter\u00adror\u00adist attack, warn\u00adings that were overlooked.<\/p>\n

This is not to fault any\u00adone who was aware of the dan\u00adger and failed to take appro\u00adpri\u00adate mea\u00adsures that would have spared the lives of four Amer\u00adi\u00adcans. Peo\u00adple make mis\u00adtakes. It is only to say that the Beng\u00adhazi attacks did not occur because our gov\u00adern\u00adment knew too lit\u00adtle.  It had the infor\u00adma\u00adtion it need\u00aded to avert the attack and it acquired it with\u00adout vio\u00adlat\u00ading the civ\u00adil lib\u00ader\u00adties of hun\u00addreds of mil\u00adlions of Americans.<\/p>\n

The gov\u00adern\u00adment didn\u2019t need my phone records to know that Tamer\u00adlan Tsar\u00adnaev was dan\u00adger\u00adous or that ter\u00adror\u00adists might attack our Beng\u00adhazi facil\u00adi\u00adty. Those attacks were suc\u00adcess\u00adful because gov\u00adern\u00adment, like any oth\u00ader human enter\u00adprise, is fal\u00adli\u00adble. Data \u2014 even in unimag\u00adin\u00adably large dos\u00ades \u2014 doesn\u2019t cure fal\u00adli\u00adbil\u00adi\u00adty.  A gov\u00adern\u00adment that over\u00adlooks clues in Beng\u00adhazi and Boston will over\u00adlook them in the troves of phone records it inap\u00adpro\u00adpri\u00adate\u00adly amass\u00ades on inno\u00adcent cit\u00adi\u00adzens.  All the more rea\u00adson why gov\u00adern\u00adment should\u00adn\u2019t breach its con\u00adsti\u00adtu\u00adtion\u00adal lim\u00adits in com\u00adbat\u00ading terrorism.<\/p>\n

A recent report<\/a> of a Pres\u00adi\u00adden\u00adtial advi\u00adso\u00adry group rec\u00adom\u00admends that gov\u00adern\u00adment con\u00adform its data-gath\u00ader\u00ading to those limts.  They called, among oth\u00ader things, for leg\u00adis\u00adla\u00adtion to lim\u00adit the abil\u00adi\u00adty of the FISC<\/span> to issue sweep\u00ading sub\u00adpoe\u00adnas (p. 86) and to end the NSA<\/span>\u2019s data col\u00adlec\u00adtion pro\u00adgram (p. 115). The group sug\u00adgest\u00aded instead that phone com\u00adpa\u00adnies be required to retain records (just as the gov\u00adern\u00adment, for exam\u00adple, requires indi\u00advid\u00adu\u00adals and busi\u00adness\u00ades to retain their tax records and doc\u00adtors to retain med\u00adical records) in search\u00adable form. When the gov\u00adern\u00adment has prob\u00ada\u00adble cause to believe that a par\u00adtic\u00adu\u00adlar indi\u00advid\u00adual may be impli\u00adcat\u00aded in poten\u00adtial ter\u00adror\u00adist activ\u00adi\u00adties, it could obtain a war\u00adrant from the FISC<\/span> per\u00admit\u00adting it to search the phone company\u2019s records for infor\u00adma\u00adtion about that indi\u00advid\u00adual. Such a change would, the group argues, allow the gov\u00adern\u00adment to pur\u00adsue coun\u00adtert\u00ader\u00adror\u00adist inves\u00adti\u00adga\u00adtions with\u00adout vio\u00adlat\u00ading civ\u00adil liberties.<\/p>\n

The group\u2019s advice affords the Pres\u00adi\u00addent a moment of oppor\u00adtu\u00adni\u00adty. He is said to be prepar\u00ading an announce\u00adment, per\u00adhaps as soon as this month, in response to the report. He should embrace its rec\u00adom\u00admen\u00adda\u00adtions to rein in the FISC<\/span> and end NSA<\/span>\u2019s data col\u00adlec\u00adtion pro\u00adgram. Since he has often treat\u00aded Con\u00adgress as a super\u00adflu\u00adous arm of gov\u00adern\u00adment, he should imple\u00adment those rec\u00adom\u00admen\u00adda\u00adtions by exec\u00adu\u00adtive action, rather than rely\u00ading on Con\u00adgress to enact a con\u00adtentious law in a tox\u00adic polit\u00adi\u00adcal environment.<\/p>\n

Such an order would be far more con\u00adsti\u00adtu\u00adtion\u00adal\u00adly sound than his many impro\u00advi\u00adsa\u00adtions on the health care law. He does, after all, head the fed\u00ader\u00adal government\u2019s exec\u00adu\u00adtive branch. He can direct the Jus\u00adtice Depart\u00adment not to seek sweep\u00ading war\u00adrants from the FISC<\/span>. And since no law requires the NSA<\/span> to col\u00adlect everyone\u2019s phone records, he can order the pro\u00adgram\u2019s termination.<\/p>\n

Pres\u00adi\u00addent Oba\u00adma seems more emo\u00adtion\u00adal\u00adly dis\u00adtant on mat\u00adters of nation\u00adal secu\u00adri\u00adty than his pre\u00adde\u00adces\u00adsors. That detach\u00adment could serve him well if he chan\u00adnels it into requir\u00ading the gov\u00adern\u00adment to cease and desist from its unlaw\u00adful snoop\u00ading activities.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Even as the debate about arm\u00ading the [Syr\u00adi\u00adan] rebels took on a new urgency, Mr. Oba\u00adma rarely voiced strong opin\u00adions dur\u00ading senior staff meet\u00adings. But cur\u00adrent and for\u00admer offi\u00adcials said his body lan\u00adguage was telling: he often appeared impa\u00adtient or \u2026 Con\u00adtin\u00adue read\u00ading \u2192<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":1857,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"nf_dc_page":"","wp_typography_post_enhancements_disabled":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"nfd_image_url":"","nfd_onboarding_generated":"","footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[133,343,158,268,159,441,157],"tags":[152,142,615,1189,787,323,325,275,448,784,755,1191,785,1190,754,786],"class_list":["post-1850","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-benghazi","category-government-power","category-national-security","category-nsa","category-president-obama","category-syria","category-terrorism","tag-al-qaida","tag-ansar-al-sharia","tag-barack-obama","tag-benghazi","tag-boston-marathon-bombing","tag-edward-snowden","tag-fisa","tag-fisc","tag-judge-richard-leon","tag-judge-william-pauley","tag-klayman-v-obama","tag-nsa","tag-philip-mudd","tag-president-obama","tag-smith-v-maryland","tag-tamerlan-tsarnaev"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t