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On Friday, as President Obama gave a press conference announcing his willingness to consider reforms to the National Security Agency’s bulk-collection programs, his administration released two unclassified “white papers” that Obama hailed as steps at transparency. One was a legal analysis of the bulk phone records program; the other was a generic description of the NSA’s foreign-directed surveillance activities.

Neither document provided much in the way of new information for the programs: a significant amount of the legal analysis about the bulk phone records program echoed congressional testimony by NSA and Justice Department officials, especially a lengthy July speech from Robert S Litt, the top lawyer in the intelligence community. Nor was either document a dispassionate recitation of facts: both presented the administration’s case for why Americans should be “comfortable” – as Obama put it today – with bulk collection of their data.

Still, the documents shed light on controversial legal theories that are likely to be tested in court in the weeks and months ahead.

The Obama administration justifies the bulk phone records collection program under Section 215 of the Patriot Act, which authorizes the government to acquire “tangible things” that are “relevant” to an investigation. Since the Guardian disclosed the existence of the bulk phone records program, thanks to the ex-NSA contractor Edward Snowden, legal scholars have puzzled over how the phone numbers dialed, lengths of calls and times of calls of millions of Americans unsuspected of terrorism or espionage meet that standard.

The administration’s answer has several components. It argues in the white paper, “‘relevance’ is a broad standard”, which can include the “reasonable grounds to believe” that when all the data is collected, “when queried and analyzed consistent with the [surveillance] Court-approved standards, will produce information pertinent to FBI investigations of international terrorism.” To do this requires “the collection and storage of a large volume of telephony metadata.” That is – information about your phone calls.

It further argues that a “tangible thing” can include a phone number or the length of a phone call, and contends that the legislative history of the Patriot Act indicates that Congress always intended that to be the case, despite the incorporeality of phone data, particularly when compared to say, a medical record or a receipt. “There is little question that in enacting Section 215 in 2001 and then amending it in 2006, Congress understood that among the things that the FBI would need to acquire to conduct terrorism investigations were documents and records stored in electronic form,” the administration writes.

Finally comes a problem that was brought up by several members of the House Judiciary Committee during a raucous July hearing. The collection of the bulk phone data comes prior, logically, to any specific investigation. So how can the administration argue the bulk phone records collection is pertinent to any particular inquiry?

“Unlike ordinary criminal investigations,” the administration replies, “the sort of national security investigations with which Section 215 is concerned often have a remarkable breadth – spanning long periods of time, multiple geographic regions, and numerous individuals, whose identities are often unknown to the intelligence community at the outset.

“The investigative tools needed to combat those threats,” it continues, “must be deployed on a correspondingly broad scale.”

Put differently: “If you’re looking for the needle in the haystack, you have to have the entire haystack to look through,” as deputy attorney general James Cole testified in July.

http://www.theguardian.com/world/2013/aug/09/obama-legal-background-surveillance-nsa?CMP=twt_gu

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Posted August 10, 2013 by tmusicfan in Politics, Quote of the Day

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COLCHESTER, Vt. — BY leaking details of the National Security Agency’s data-mining program, Edward J. Snowden revealed that the government’s surveillance efforts were far more extensive than previously understood. Many commentators have deemed the government’s activities alarming and unprecedented. The N.S.A.’s program is indeed alarming — but not, from a historical perspective, unprecedented. And history suggests that we should worry less about the surveillance itself and more about when the war in whose name the surveillance is being conducted will end.

In 1862, after President Abraham Lincoln appointed him secretary of war, Edwin M. Stanton penned a letter to the president requesting sweeping powers, which would include total control of the telegraph lines. By rerouting those lines through his office, Stanton would keep tabs on vast amounts of communication, journalistic, governmental and personal. On the back of Stanton’s letter Lincoln scribbled his approval: “The Secretary of War has my authority to exercise his discretion in the matter within mentioned.”

But part of the reason this calculus was acceptable to me was that the trade-offs were not permanent. As the war ended, the emergency measures were rolled back. Information — telegraph and otherwise — began to flow freely again.

So it has been with many wars: a cycle of draconian measures followed by contraction. During the First World War, the Supreme Court found that Charles T. Schenck posed a “clear and present danger” for advocating opposition to the draft; later such speech became more permissible. During the Second World War, habeas corpus was suspended several times — most notably in Hawaii after the Pearl Harbor attack — but afterward such suspensions became rare.

This is why, if you are a critic of the N.S.A.’s surveillance program, it is imperative that the war on terror reach its culmination. In May, President Obama declared that “this war, like all wars, must end.” If history is any guide, ending the seemingly endless state of war is the first step in returning our civil liberties.

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Peter Ludlow (New York Times):

To get some perspective on the manipulative role that private intelligence agencies play in our society, it is worth examining information that has been revealed by some significant hacks in the past few years of previously secret data.

Important insight into the world these companies came from a 2010 hack by a group best known as LulzSec  (at the time the group was called Internet Feds), which targeted the private intelligence firm HBGary Federal.  That hack yielded 75,000 e-mails.  It revealed, for example, that Bank of America approached the Department of Justice over concerns about information that WikiLeaks had about it.  The Department of Justice in turn referred Bank of America to the lobbying firm Hunton and Willliams, which in turn connected the bank with a group of information security firms collectively known as Team Themis.

Team Themis (a group that included HBGary and the private intelligence and security firms Palantir Technologies, Berico Technologies and Endgame Systems) was effectively brought in to find a way to undermine the credibility of WikiLeaks and the journalist Glenn Greenwald (who recently broke the story of Edward Snowden’s leak of the N.S.A.’s Prism program),  because of Greenwald’s support for WikiLeaks. Specifically, the plan called for actions to “sabotage or discredit the opposing organization” including a plan to submit fake documents and then call out the error. As for Greenwald, it was argued that he would cave “if pushed” because he would “choose professional preservation over cause.” That evidently wasn’t the case………

……Several months after the hack of HBGary, a Chicago area activist and hacker named Jeremy Hammond successfully hacked into another private intelligence firm — Strategic Forcasting Inc., or Stratfor), and released approximately five million e-mails. This hack provided a remarkable insight into how the private security and intelligence companies view themselves vis a vis government security agencies like the C.I.A. In a 2004 e-mail to Stratfor employees, the firm’s founder and chairman George Friedman was downright dismissive of the C.I.A.’s capabilities relative to their own:  “Everyone in Langley [the C.I.A.] knows that we do things they have never been able to do with a small fraction of their resources. They have always asked how we did it. We can now show them and maybe they can learn.”

http://opinionator.blogs.nytimes.com/2013/06/14/the-real-war-on-reality/?smid=fb-share