NSA Takes a Hit in Fight for American Public Opinion

The National Security Agency began the week with a public relations coup: a favorable segment on the spy agency by the CBS News program 60 Minutes. But then the week continued.

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Charles Dharapak / AP

Gen. Keith B. Alexander, director of the National Security Agency testifies before the House Permanent Select Committee on Intelligence regarding NSA surveillance in Washington, June 18, 2013.

This post was updated on Dec. 17 at 2:29 p.m.

The National Security Agency began the week with a public relations coup: a favorable segment on the spy agency by the CBS News program 60 Minutes. The segment was authored by CBS correspondent John Miller, an intelligence community veteran and former public affairs officer for the Federal Bureau of Investigation, who failed to disclose to viewers that he was eyeing a return to his career in law enforcement when the episode aired, a fact that was first reported by the New York Post.

In the segment, Miller described the controversy over the NSA’s collection of telephone metadata as partly the result of confusion. “So you understand then, there might be a little confusion among Americans who read in the newspaper that the N.S.A. has vacuumed up, the records of the telephone calls of every man, woman and child in the United States for a period of years—that sounds like spying on Americans,” Miller said, in one of his questions to NSA Director Keith Alexander.

Miller’s apparent suggestion here, endorsed by Alexander, was that the collection of metadata phone records does not amount to domestic spying, because the records do not include the content of calls and the records are searched only when there is a suspected terrorist target. “Metadata has become one of the most important tools in the NSA’s arsenal,” said Miller.

This is precisely the message the NSA has been trying to get out, ever since its contractor, Edward Snowden, stole and released documents disclosing the once classified program. And there is a clear urgency to the NSA mission. The public relations war matters because Congress is now considering reform bills that could put an end to the program. Sometime next year, public polling about how American’s feel about their information being collected will play a role in determining the outcome of the debate.

But the NSA’s moment of glory was short-lived. Hours after the show aired, Federal District Judge Richard Leon, an appointee of George W. Bush, ruled that the very same program was likely unconstitutional under the Fourth Amendment, a fact that lead newscasts and newspapers on Tuesday.

Leon’s ruling is by no means the last word on the program. It will be appealed, probably up to the Supreme Court. But it was remarkable for its plain language, and clear statements of concern, which closely echo the public statements of Snowden and civil liberties advocates. In short, it is the rare legal ruling that naturally lends itself to public consumption.

For Leon, the issue comes down to this question: Do individual Americans “have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets”?

Leon concludes that there is likely such an expectation, which would make the program illegal.

I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on ‘that degree of privacy’ that he Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgment of freedom of the people by gradual and silent encroachments by those in power’ would be aghast.

In reaching his conclusion, Leon concludes that the government has for years misapplied a 1979 case, Smith v. Maryland, which found that the police could collect the phone numbers called by a suspect’s criminal phone without a warrant. The NSA has argued that because of this case, it is legal to collect records of all phone calls.

But Leon says that the scale of the collection, and the nature of phones in the modern age means the precedent does not directly apply. “The almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979,” Leon writes, before adding that the way people use phones has also changed so much that new rules need to be applied. “Count the phones at the bus stop, in a restaurant, or around the table at a work meeting or any given occasion. Thirty-four years ago, none of these phones would have been there. Thirty-four years ago, city streets were lined with pay phones. Thirty-four years ago, when people wanted to send ‘text messages,’ they wrote letter and attached postage stamps.”

Finally, Leon concludes that there is no evidence that the domestic metadata program is as effective or central to the NSA mission as the government claims. “[T]he Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensative in nature,” Lean writes.

The NSA has so far declined to comment on Leon’s ruling.

UPDATE: Shortly after this post was published, Senate Intelligence Committee Chairwoman Dianne Feinstein, who supports the domestic metadata program, released a statement in response to Leon’s ruling. She notes that a district court in California recently found the program to be constitutional. She continues,

Judge Leon’s opinion also differs from those of at least 15 separate federal district court judges who sit, or have sat, on the FISA Court and have reauthorized the program every 90 days—a total 35 times in all. Clearly we have competing decisions from those of at least three different courts (the FISA Court, the D.C. District Court and the Southern District of California). I have found the analysis by the FISA Court, the Southern District of California and the position of the Department of Justice, based on the Supreme Court decision in Smith, to be compelling.

Only the Supreme Court can resolve the question on the constitutionality of the NSA’s program. I welcome a Supreme Court review since it has been more than 30 years since the court’s original decision of constitutionality, and I believe it is crucial to settling the issue once and for all. In the meantime, the call records program remains in effect.

Those of us who support the call records program do so with a sincere belief that it, along with other programs, is constitutional and helps keep the country safe from attack. I believe the program can benefit from additional transparency and privacy protections—including additional public reporting and added court review provisions which were recently adopted by the Senate Intelligence Committee in the bipartisan FISA Improvements Act.

14 comments
SpikeLee
SpikeLee

It's interesting that Michael Scherer still sees the 60 Minutes piece as a net positive for the NSA, when the result outside the media was scorn towards the NSA as well as 60 minutes.  Does this mean that we can expect a good old-fashioned TIME whitewash soon?

jmac
jmac

In Snowden's letter to Brazil begging them to take him in in return for him spewing more info on how we spy, he asserted, "These programs were never about terrorism:  they're about economic spying, social control and diplomatic manipulation."


We knew about the hi-jackers and their plane lessons before 9/11.   Bush was warned by more than Clinton about al-Qaeda and he chose to completely ignore the threat as he and Cheney pursued the old Star Wars program.       Let's not repeat that with idiots like Snowden saying it's not about terrorism.   We've already had a president denying al-Qaeda before they struck.   

contactjklett
contactjklett

Between Dianne Feinstein's support for "Domestic Spying" and her complete ignorance of the Trans Pacific Partnership and fast track approval let me quote two paragraphs from her recent email to me when I asked her about the TPP:

Dianne Feinstein

First, please know that as a United States Senator, I carefully review each free trade agreement that comes before me to ensure that the best interests of American workers and businesses are served, and that the agreement will not adversely affect the U.S. economy, human rights, labor rights, and environmental standards. 

She does not have a clue what she is saying, in fact the text of the TransPacificPartnership has been kept secret

and she then goes on:

President Obama formally notified Congress of his Administration's intention to enter into negotiations on December 14, 2009, and the members have since participated in seventeen rounds of negotiations. As you may know, Congress must approve each trade agreement before it comes into effect for the United States.  Please be assured that I am closely monitoring the negotiations, and I will keep your thoughts in mind as I review any final agreement.The members of the House committees involved have been kept completely in the dark.
With regard to Domestic Spying her ignorance of the 4th Amendment and the constitution is shocking!
Dianne Feinstein needs to be voted out, she is a disgrace!



jmac
jmac

Snowden writes letter to Brazil saying he'll help them with U.S. spying if they'll take him in. 


I have seen the enemy and so far it's Snowden.    NSA writing emails against Larry Klayman?   Please.   

solardowork
solardowork

ACTS OF TREASON
The World Needs Now More Then Ever Leaders That Live And Lead By Our LORD's Word.

The World is going to Solar Energy UK has more EV  Electric Vehicles Charging Stations then gas.  Americans Wake up. Lets Stop sending your $,$$$,$$$,$$$ to the Middle East
Hollywood Star of Movies like 
"WHITE HOUSE DOWN" &  " WHITE HOUSE AGAINST ALL AMERICANS & CHRISTIANS" SORRY ITS
 "AGAINST ALL ODDS" 

" WHITE HOUSE AGAINST ALL AMERICANS & CHRISTIANS" is real life on going of our wicked in office.

(JAMES WOODS has said it best
Obama: He’s the ‘gift from HELL’)

It Will soon be the Lord's Stars that will only shine ( Daniel 12:3 )

jmac
jmac

"But the NSA’s moment of glory was short-lived."


Really?  I watched the 60 minute segment and then read Huffington Post equate it to Lara Logan.    What a pile of hooey.      I also don't buy Klayman's case with Leon - this is the judge who ruled  with Bush that Gitmo prisoners had no legal way to challenge their detentions - then magically reversed himself seven years later.   (Shades of Snowden who loved spying under Bush).    Now he's basing his ruling on on a case he already has admitted is ridiculous.  


I put Klayman right in the same barrel with Snowden - and that's not far from Leon/Scalia/Thomas.  Not far at all.    That's not to say we won't get another Citizen's United 'book banning' fiasco.    

 

 


JamesGordon1
JamesGordon1

People willing to trade their freedom for temporary security deserve neither and will lose both... Benjamin Franklin>We knew  better  than  to  let  them  have  this  power  , 



sdfefeef11
sdfefeef11

Dianne Feinstein is too stupid to know what the Constitution represents.

Paul,nnto
Paul,nnto

"Those of us who support the call records program do so with a sincere belief that it, along with other programs, is constitutional and helps keep the country safe from attack."

Senator, while "sincere belief" is swell "evidence" is even better.

drudown
drudown

@contactjklett 


I don't follow your logic. 


While I am vehemently opposed to the TPP (e.g., it unduly limits our SOVEREIGN right to enforce our OWN laws and Due Process protections), the kind of "blanket immunities" contained therein are much more the work of the GOP and their Foreign Puppeteer. Tell me, how are the "immunities" and "pro-fracking" provisions in the TPP any different than the Bush Energy Bill likewise "devised in secret" by the MARKET PLAYERS?


Moreover, you erroneously imply the NSA program was put in place by Feinstein when, in fact, it was the GOP "Decider" that (1) set it in motion per such patently UNCONSTITUTIONAL course and scope and (2) LIED to Congress about what it was used for. 


Explain.

therealdude
therealdude

@contactjklett Hats off to you for calling her on both. The TPP has been "negotiated" by over 600 corporate lobbyists in a back room. Even if you didn't know anything else but that, knowing that alone should tell you if they pass it the middle class better get ready to grab it's ankles.