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OpEdNews Op Eds    H3'ed 8/22/13

Obama vs. Snowden: "Parsing the Presser" Series, Part 2

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"I believe that liberty is the only genuinely valuable thing that men have invented, at least in the field of government, in a thousand years. I believe that it is better to be free than to be not free, even when the former is dangerous and the latter safe" --

                            H.L. Mencken (1927)

EDITOR'S NOTE: This article offers a highly critical, but thoroughly documented, analysis of President Obama's defense of the NSA surveillance program, as laid out in his August 9, 2013 press conference. It is being released in three parts on consecutive days: August 20-August 22.

Part 2: Obama's Hollow "Reforms" for Making the Surveillance Program More Transparent.

In apparent connection with his May 23 promise of a "thorough review" of the NSA surveillance program, President Obama proposed at his August 9 news conference four ostensibly new "reforms": 

1. A New Board? The "privacy and civil liberties board" mentioned by Obama on May 23d was, on first impression, also listed among Obama's four-point plan announced August 9 as the gist of the "additional reforms" for the "thorough review" he says he had previously "called for." This plan is Obama's alternative to Snowden's adoption of Madison's "public information" and Justice Brandeis' disinfection by sunlight approaches to maintaining democracy. At the presser Obama claimed that "we're forming a high level group of outside experts." Since he claimed he had already "called for" this reform in his NDU speech, it could only refer to the "privacy and civil liberties board" he mentioned in that speech. The NSA helpfully quotes this passage from the speech for the purpose of imputing to it this very intention, in case it might otherwise be missed.

The truth is that long before the NDU speech Obama had already formed such a group or board. He had appointed government officials who comprise a "high level" ex officio "group" of presumed "experts," to "strengthen protections for the rights of Americans in the effective performance of national security and homeland security functions." This "President's Board on Safeguarding Americans' Civil Liberties" created by George W. Bush's Executive Order 13353 of August 27, 2004 included many experts who, before they were inside Obama's administration, were "outside" the previous Bush administration, which was caught in the act of similarly illegal global surveillance.

Obama's appointments of all the officials on this Board already gave Obama the capacity for his own "high level" experts to make the "thorough review of our surveillance operations" that Obama claims he "called for...before Mr. Snowden made these leaks." This Board has not prevented Obama from outdoing even Bush in the continued construction of his surveillance state. The question is why did Obama not use this board rather than call for a new one?

Most likely Obama's May 23d comment referred to a second "Privacy and Civil Liberties Oversight Board" that Congress established in 2004 for the same purpose as Bush's Board, so Congress could also buy some cover. Obama virtually named this second Board in his NDU speech. In his August 9 presentation Obama again expressly mentioned asking this Board "to review where our counterterrorism efforts and our values come into tension." In his May 23d NDU speech Obama mentioned this very same assignment in those same words when he referred to it by its official name, reinforcing the evidence that the earlier reference was also to this same existing board.

Obama refers to wanting a group of "outside" experts. The ex officio board may not have satisfied that criterion, though it satisfied all his other criteria. Under current law this PCLO Board is already "established as an independent agency within the executive branch." The Board is comprised of experts who, unlike the ex officio Board, are required by law to not be government officials. They also have broad legal powers to do the same task that Obama wants to "form" a new such Board to do. Indeed, the PCLO Board should already be doing what Obama claims he "asked" it to do. The law requires that the "Board shall--(1) analyze and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties; and

(2) ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism." See Public Law 110--53 , Aug. 3, 2007, Secs. 801-803.

Thus, what Obama claims as his own new proactive initiative for "review" was already commanded by Congress nearly a decade ago as an institutional process.

Of course, the existence of this second "Board," with all Obama appointees , has had no discernible deterrent effect on Obama's constitutional violations, any more than it had under Bush. So even though he has already appointed exactly the same kind of Board that he suggests he is now newly "forming," this "independent Board" fig leaf/ rubber stamp combination is such a tried and true propaganda tool that Obama returns to drink from this same well of deception from which others drank before him.

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Rob Hager is a public-interest litigator who filed a Supreme Court amicus brief n the 2012 Montana sequel to the Citizens United case, American Tradition Partnership, Inc. v. Bullock, and has worked as an international consultant on legal (more...)
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