Since neither the courts nor Congress can any longer have confidence in NSA assertions, they clearly must give themselves the capacity--including experts with full access to raw data, answerable to them and not the Executive--to fulfill their constitutionally required mandate to check and balance Executive power.
This restructuring of relationships between the three branches of government must also profoundly alter the Executive's ability to hide its wrongdoing from the American people by classifying trillions of pages annually on the false grounds of "national security." In an article entitled "Ex-MI6 Deputy Chief Plays Down Damage Caused By Snowden Leaks," for example, the Guardian reported that Nigel Inkster said that "Al-Qaida leaders in the tribal areas of Pakistan had been "in the dark' for some time" referring to counter measures they had taken to avoid detection by western intelligence agencies. Other "serious actors' were equally aware of the risks to their own security from NSA and GCHQ eavesdroppers, he said."
The Executive Branch, as does the U.K.'s NSA as quoted above, keeps its secrets from the American people primarily to avoid the "political embarrassment" of having its fraud, waste, abuse and illegality revealed.
As a Brennan Center For Justice study on classification has noted, "Over-classification is rampant, and nearly everyone who works with classified information recognizes the problem. In 1993, Senator John Kerry, who reviewed classified documents while chairing the Senate Select Committee on POW/MIA Affairs, commented, 'I do not think more than a hundred, or a couple of hundred, pages of the thousands of [classified] documents we looked at had any current classification importance.' The classification system must be reformed if we are to preserve the critical role that transparent government plays in a functioning democracy."
President Obama cannot seriously talk of "transparency" without supporting efforts to reduce present classification of government documents by the 90% that experts like Secretary of State John Kerry and Pentagon whistleblower Daniel Ellsberg estimate would in no way harm national security.
The following steps are needed.
The Bottom Line: No Bulk Collection Of Americans' Phone And Internet Metadata, Destroy Files That Exist
Obama on August 8 announced a response to Snowden's revelations: "First, I will work with Congress to the following measures in pursue appropriate reforms to Section 215 of the Patriot Act, the program that collects telephone records. Second, we can take steps to make sure civil liberties concerns have an independent voice in appropriate cases by ensuring that the government's position is challenged by an adversary (before) the Foreign Intelligence Surveillance Court ...
Number three, the Department of Justice will make public the legal rationale for the government's collection activities under Section 215 of the Patriot Act ... Fourth, we're forming a high level group of outside experts to review our entire intelligence and communications technologies."
These were clearly illusory reforms, as the Electronic Frontier Foundation noted, that would continue mass surveillance of Americans. First, the Executive would continue to only tell Congress and the Judiciary what it felt was "appropriate "for them to know--including the FISC "adversary"; second, the "legal rationales" for Executive wrongdoing are just that: rationales which no one concerned about Executive surveillance can take seriously; and thirdly four of the five "outside experts" Obama wound up appointing are all deeply implicated in Executive wrongdoing, including former CIA Deputy Director Michael Morrell, and they are to report to director of National Intelligence James Clapper, a key architect of the surveillance state.
Predictably, the first meeting of this Potemkin Panel did not even discuss NSA surveillance of innocent Americans and only confined itself to private sector concerns. Open Technology Institute director Sascha Meinrath, who attended the meeting, declared that "My fear is it's a simulacrum of meaningful reform " Its function is to bleed off pressure, without getting to the meaningful reform."
A N.Y. Times editorial accurately noted that "President Obama proposed a series of measures on Friday that only tinker around the edges of the nation's abusive surveillance programs. It is the existence of these programs that is the problem, not whether they are modestly transparent. As long as the N.S.A. believes it has the right to collect records of every phone call ... then none of the promises to stay within the law will mean a thing."
Mr. Obama's "reforms" thus still envision continued Executive collection of hundreds of millions of Americans' phone and Internet records. Believers in democracy must set their own "red line" against surveillance of innocent Americans.
A line must be drawn somewhere. Once we allow the Executive to store all our emails and Internet communications for all time, why not allow them to read them if they decide it might protect somebody, somewhere, sometime? Why should a court get involved? Don't we trust them? As Edward Snowden has said, "the Internet is on principle a system that you reveal yourself to in order to fully enjoy, which differentiates it from, say, a music player. It is a TV that watches you."
But this does not "protect" us nearly as efficiently as would a real TV or flat screen equipped with a transponder allowing them to watch us whenever they wish. Where do we draw the line?
Mr. Obama and present congressional leaders' typically honeyed words mean nothing absent a complete halt to gathering information on innocent Americans. Republican House Judiciary Chair Robert Goodlatte, for example, recently declared "I am committed to " our nation's intelligence collection programs includ(ing) robust oversight, additional transparency, and protections for Americans' civil liberties." But at the same time he stated that "eliminating this program altogether without careful deliberation would not reflect our duty, under article I of the constitution, to provide for the common defense," and had opposed the Conyers-Amash amendment in July that would have ended NSA surveillance of innocent Americans.
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