http://www.nytimes.com/2013/07/13/us/holder-to-tighten-rules-for-obtaining-reporters-data.html?_r=0

---------- Forwarded message ----------
From: barry levine 
Date: Sat, Jul 13, 2013 at 10:53 PM
Subject: re: Holder Tightens Rules on Getting Reporters’ Data
To: "letters@nytimes.com"

To the Editor:

   President Obama and Attorney General Holder can refine the DoJ's guidelines endlessly, but they will never amount to law. And our constitution charges the Executive with "tak[ing] care that these laws be faithfully executed"; enforcing guidelines is purely an internal matter to the DoJ.  Whether agents, officers and contractors of our CIA acted within DoJ guidelines is a matter of interest only within the DoJ. We need to know if they acted in accord with our law which requires that we prosecute or extradite torturers. Whether warrantless wiretaps were within DoJ guidelines or not is not at issue. They violated the FISA statute and still need to be prosecuted. Whether killing the al-Awlakis was done as per DoJ guidelines or not is irrelevant. Those murders need to be prosecuted.

     No doubt it would be convenient to some if our Executive could run our government without reference to our Legislative or Judiciary branches. But the captive "Surveillance Court" cannot substitute for a duly-constituted court of law and the guideline of the DoJ cannot replace the laws duly enacted by our Legislature.

Barry Haskell Levine

Holder Tightens Rules on Getting Reporters’ Data

Gary Cameron/Reuters

Attorney General Eric H. Holder Jr. has made it harder for prosecutors to get around a legal hurdle to secret searches.

By CHARLIE SAVAGE

Published: July 12, 2013WASHINGTON — Attorney General Eric H. Holder Jr., who has been criticized for the Justice Department’s aggressive tactics in secretly obtaining phone logs and e-mails of reporters as part of leak investigations, announced new guidelines on Friday that would significantly narrow the circumstances under which journalists’ records could be obtained.

A White House spokesman said that President Obama supported the Justice Department’s changes as well as its call, at the end of a report on the revisions, to more often find ways other than criminal investigations to deal with leaks of classified information. Under Mr. Obama, prosecutors have filed charges in seven leak-related cases to date, compared with three under all previous presidents combined.

“There are circumstances in which leaks are better addressed through administrative means, such as withdrawal of security clearances or imposition of other sanctions,” said Matt Lehrich, the White House spokesman. “The president agrees with the Justice Department’s recommendation, and has directed his team to explore how the administration could more effectively use alternatives in appropriate cases.”

In a six-page report, Mr. Holder outlined changes to the Justice Department’s investigative guidelines that would prevent the Federal Bureau of Investigation from portraying a reporter as a co-conspirator in a criminal leak as a way to get around a legal bar on secret search warrants for reporting materials.

The revisions would also make it harder — though not impossible — for prosecutors to obtain a journalist’s records from telephone companies without advance notice. The notifications would give the news organizations a chance to contest the request in court.

“The Department of Justice is firmly committed to ensuring our nation’s security, and protecting the American people, while at the same time safeguarding the freedom of the press,” Mr. Holder said. “These revised guidelines will help ensure the proper balance is struck when pursuing investigations into unauthorized disclosures.”

Investigators’ targeting of the communications records of Associated Press and Fox News reporters in separate investigations came to light in May, setting off a furoramong journalists and in Congress about the administration’s increasingly aggressive record on leak inquiries.

Two months ago, Mr. Obama gave Mr. Holder a July 12 deadline to review the rules and make recommendations. Mr. Holder held a series of meetings with newsroom leaders and lawyers for media companies, along with lawmakers and First Amendment scholars, in May and June, and briefed Mr. Obama about the changes at the White House on Friday morning.

Several of them directly addressed controversies from the earlier disclosures. For example, a 2010 affidavit that came to light in May sought a warrant for e-mails from the Google account of James Rosen of Fox News in which he corresponded with a State Department analyst who was suspected of leaking classified information.

Congress has generally forbidden search warrants for journalists’ work materials, but the statute makes an exception if the reporter is suspected of committing a crime. An F.B.I. agent wrote that Mr. Rosen qualified for that exception because he had violated the Espionage Act by seeking government secrets to report.

No American journalist has ever been prosecuted for gathering and publishing classified information, so the language raised the prospect that the Obama administration was taking its leak crackdown to a new level. The administration insisted that it never intended to charge Mr. Rosen and that it had portrayed him as a criminal merely to get around the prohibition on accessing his e-mails.

The revision to the guidelines would bar such a tactic by saying that the “suspect exception” may only be invoked “when the member of the news media is the focus of the criminal investigation for conduct going beyond ordinary news-gathering activities.”

Search warrants invoking the exception, the revision adds, will not be allowed “if the sole purpose is the investigation of a person other than a member of the news media.”

Also, the new guidelines will require the attorney general to sign off on invoking the exception. Previously, a deputy assistant attorney general could do so.

The Justice Department also disclosed in May that it had obtained calling records for more than 20 telephone lines of A.P. offices and journalists in connection with an investigation into a leak about a foiled bomb plot in Yemen last year. The subpoena was controversial because the department gave no advance notice, so The A.P. was unable to negotiate the scope of the subpoena or challenge it in court.

The revisions to the guidelines will make it harder — though not impossible — for prosecutors to take such a step in the future.

Prosecutors, for example, have interpreted the previous rules as carrying a presumption that investigators will withhold advance notice to reporters, unless an assistant attorney general decides it would not be harmful to do so.

The revised guidelines reverse that presumption and raise the decision-making level to the attorney general.

Moreover, the new guidelines will make clear that the possibility that negotiations and judicial review “may delay the investigation will not, on its own, be considered a compelling reason” to avoid advance notice.

Finally, even if the attorney general finds that there is a compelling reason to delay notice, it can be for a maximum of 90 days. Under previous rules, the notice could be put off indefinitely.

Another set of changes would update the guidelines so that the same protections of phone calls will also cover all “communications records” and “business records” that are stored and maintained by third parties. In 2011, it came to light that investigators had secretly obtained credit card, bank and airline travel records of a New York Times reporter, James Risen, in another leak investigation.

The guidelines cover grand jury subpoenas used in criminal investigations. There is no change to how the F.B.I. may obtain reporters’ calling records via “national security letters,” which are exempt from the regular guidelines. A Justice spokesman said the device is “subject to an extensive oversight regime.”

The guidelines will say that the department’s top press and civil liberties officials must review and make a recommendation about requests for reporters’ records, and they will direct the Justice Department to start issuing an annual tally disclosing how many times it has made an effort to obtain them, the report said.

Mr. Holder reiterated the administration’s support to revive efforts to enact a federal media shield law that would place the decision about delaying notice of any subpoena for reporters’ phone records in the hands of a judge rather than the attorney general. A bill to do so had faltered in 2010.

“While these reforms will make a meaningful difference, there are additional protections that only Congress can provide,” Mr. Holder said. “For that reason, we continue to support the passage of media shield legislation.

”

http://www.nytimes.com/2013/07/12/opinion/krugman-delusions-of-populism.html

---------- Forwarded message ----------
From: barry levine 
Date: Fri, Jul 12, 2013 at 9:45 AM
Subject: re: Delusions of Populism
To: "letters@nytimes.com"

To the Editor:

      If every eligible voter voted, the only way to gain support would be to appeal across the aisle. The U.S. falls far far short of this. It is because such a large fraction of our electorate routinely doesn't vote, that politicians can win by appealing ever more shrilly to extremists in their own wings, rather than by  seeking to represent all of the people.

   I don't expect that we will ever have 100% voter participation; not voting itself is probably a protected form of symbolic free speech. But there are tangible incentives we can offer to increase the participation, starting with "motor/voter" and running through the tax system long used in Australia.

Barry Haskell Levine

Find more of my (largely one-sided) correspondence with the New York Times at:
htt://forgottencenter.blogspot.com/
Or write a letter of your own. Democracy only works when we engage in
the issues of our day

Delusions of Populism

By PAUL KRUGMAN

Published: July 11, 2013

Have you heard about “libertarian populism” yet? If not, you will. It will surely be touted all over the airwaves and the opinion pages by the same kind of people who assured you, a few years ago, that Representative Paul Ryan was the very model of a Serious, Honest Conservative. So let me make a helpful public service announcement: It’s bunk.

Paul Krugman

Some background: These are tough times for members of the conservative intelligentsia — those denizens of think tanks and opinion pages who dream of Republicans once again becoming “the party of ideas.” (Whether they ever were that party is another question.)

For a while, they thought they had found their wonk hero in the person of Mr. Ryan. But the famous Ryan plan turned out to be crude smoke and mirrors, and I suspect that even conservatives privately realize that its author is more huckster than visionary. So what’s the next big idea?

Enter libertarian populism. The idea here is that there exists a pool of disaffected working-class white voters who failed to turn out last year but can be mobilized again with the right kind of conservative economic program — and that this remobilization can restore the Republican Party’s electoral fortunes.

You can see why many on the right find this idea appealing. It suggests that Republicans can regain their former glory without changing much of anything — no need to reach out to nonwhite voters, no need to reconsider their economic ideology. You might also think that this sounds too good to be true — and you’d be right. The notion of libertarian populism is delusional on at least two levels.

First, the notion that white mobilization is all it takes rests heavily on claims by the political analyst Sean Trende that Mitt Romney fell short last year largely because of “missing white voters” — millions of “downscale, rural, Northern whites” who failed to show up at the polls. Conservatives opposed to any major shifts in the G.O.P. position — and, in particular, opponents of immigration reform — quickly seized on Mr. Trende’s analysis as proof that no fundamental change is needed, just better messaging.

But serious political scientists like Alan Abramowitz and Ruy Teixeira have now weighed in and concluded that the missing-white-voter story is a myth. Yes, turnout among white voters was lower in 2012 than in 2008; so was turnout among nonwhite voters. Mr. Trende’s analysis basically imagines a world in which white turnout rebounds to 2008 levels but nonwhite turnout doesn’t, and it’s hard to see why that makes sense.

Suppose, however, that we put this debunking on one side and grant that Republicans could do better if they could inspire more enthusiasm among “downscale” whites. What can the party offer that might inspire such enthusiasm?

Well, as far as anyone can tell, at this point libertarian populism — as illustrated, for example, by the policy pronouncements of Senator Rand Paul — consists of advocating the same old policies, while insisting that they’re really good for the working class. Actually, they aren’t. But, in any case, it’s hard to imagine that proclaiming, yet again, the virtues of sound money and low marginal tax rates will change anyone’s mind.

Moreover, if you look at what the modern Republican Party actually stands for in practice, it’s clearly inimical to the interests of those downscale whites the party can supposedly win back. Neither a flat tax nor a return to the gold standard are actually on the table; but cuts in unemployment benefits, food stamps and Medicaid are. (To the extent that there was any substance to the Ryan plan, it mainly involved savage cuts in aid to the poor.) And while many nonwhite Americans depend on these safety-net programs, so do many less-well-off whites — the very voters libertarian populism is supposed to reach.

Specifically, more than 60 percent of those benefiting from unemployment insurance are white. Slightly less than half of food stamp beneficiaries are white, but in swing states the proportion is much higher. For example, in Ohio, 65 percent of households receiving food stamps are white. Nationally, 42 percent of Medicaid recipients are non-Hispanic whites, but, in Ohio, the number is 61 percent.

So when Republicans engineer sharp cuts in unemployment benefits, block the expansion of Medicaid and seek deep cuts in food stamp funding — all of which they have, in fact, done — they may be disproportionately hurting Those People; but they are also inflicting a lot of harm on the struggling Northern white families they are supposedly going to mobilize.

Which brings us back to why libertarian populism is, as I said, bunk. You could, I suppose, argue that destroying the safety net is a libertarian act — maybe freedom’s just another word for nothing left to lose. But populist it isn’t.

http://www.nytimes.com/2013/07/12/opinion/krugman-delusions-of-populism.html

---------- Forwarded message ----------
From: barry levine 
Date: Fri, Jul 12, 2013 at 9:45 AM
Subject: re: Delusions of Populism
To: "letters@nytimes.com"

To the Editor:

      If every eligible voter voted, the only way to gain support would be to appeal across the aisle. The U.S. falls far far short of this. It is because such a large fraction of our electorate routinely doesn't vote, that politicians can win by appealing ever more shrilly to extremists in their own wings, rather than by  seeking to represent all of the people.

   I don't expect that we will ever have 100% voter participation; not voting itself is probably a protected form of symbolic free speech. But there are tangible incentives we can offer to increase the participation, starting with "motor/voter" and running through the tax system long used in Australia.

Barry Haskell Levine

Find more of my (largely one-sided) correspondence with the New York Times at:
htt://forgottencenter.blogspot.com/
Or write a letter of your own. Democracy only works when we engage in
the issues of our day

Delusions of Populism

By PAUL KRUGMAN

Published: July 11, 2013

Have you heard about “libertarian populism” yet? If not, you will. It will surely be touted all over the airwaves and the opinion pages by the same kind of people who assured you, a few years ago, that Representative Paul Ryan was the very model of a Serious, Honest Conservative. So let me make a helpful public service announcement: It’s bunk.

Paul Krugman

Some background: These are tough times for members of the conservative intelligentsia — those denizens of think tanks and opinion pages who dream of Republicans once again becoming “the party of ideas.” (Whether they ever were that party is another question.)

For a while, they thought they had found their wonk hero in the person of Mr. Ryan. But the famous Ryan plan turned out to be crude smoke and mirrors, and I suspect that even conservatives privately realize that its author is more huckster than visionary. So what’s the next big idea?

Enter libertarian populism. The idea here is that there exists a pool of disaffected working-class white voters who failed to turn out last year but can be mobilized again with the right kind of conservative economic program — and that this remobilization can restore the Republican Party’s electoral fortunes.

You can see why many on the right find this idea appealing. It suggests that Republicans can regain their former glory without changing much of anything — no need to reach out to nonwhite voters, no need to reconsider their economic ideology. You might also think that this sounds too good to be true — and you’d be right. The notion of libertarian populism is delusional on at least two levels.

First, the notion that white mobilization is all it takes rests heavily on claims by the political analyst Sean Trende that Mitt Romney fell short last year largely because of “missing white voters” — millions of “downscale, rural, Northern whites” who failed to show up at the polls. Conservatives opposed to any major shifts in the G.O.P. position — and, in particular, opponents of immigration reform — quickly seized on Mr. Trende’s analysis as proof that no fundamental change is needed, just better messaging.

But serious political scientists like Alan Abramowitz and Ruy Teixeira have now weighed in and concluded that the missing-white-voter story is a myth. Yes, turnout among white voters was lower in 2012 than in 2008; so was turnout among nonwhite voters. Mr. Trende’s analysis basically imagines a world in which white turnout rebounds to 2008 levels but nonwhite turnout doesn’t, and it’s hard to see why that makes sense.

Suppose, however, that we put this debunking on one side and grant that Republicans could do better if they could inspire more enthusiasm among “downscale” whites. What can the party offer that might inspire such enthusiasm?

Well, as far as anyone can tell, at this point libertarian populism — as illustrated, for example, by the policy pronouncements of Senator Rand Paul — consists of advocating the same old policies, while insisting that they’re really good for the working class. Actually, they aren’t. But, in any case, it’s hard to imagine that proclaiming, yet again, the virtues of sound money and low marginal tax rates will change anyone’s mind.

Moreover, if you look at what the modern Republican Party actually stands for in practice, it’s clearly inimical to the interests of those downscale whites the party can supposedly win back. Neither a flat tax nor a return to the gold standard are actually on the table; but cuts in unemployment benefits, food stamps and Medicaid are. (To the extent that there was any substance to the Ryan plan, it mainly involved savage cuts in aid to the poor.) And while many nonwhite Americans depend on these safety-net programs, so do many less-well-off whites — the very voters libertarian populism is supposed to reach.

Specifically, more than 60 percent of those benefiting from unemployment insurance are white. Slightly less than half of food stamp beneficiaries are white, but in swing states the proportion is much higher. For example, in Ohio, 65 percent of households receiving food stamps are white. Nationally, 42 percent of Medicaid recipients are non-Hispanic whites, but, in Ohio, the number is 61 percent.

So when Republicans engineer sharp cuts in unemployment benefits, block the expansion of Medicaid and seek deep cuts in food stamp funding — all of which they have, in fact, done — they may be disproportionately hurting Those People; but they are also inflicting a lot of harm on the struggling Northern white families they are supposedly going to mobilize.

Which brings us back to why libertarian populism is, as I said, bunk. You could, I suppose, argue that destroying the safety net is a libertarian act — maybe freedom’s just another word for nothing left to lose. But populist it isn’t.

http://www.nytimes.com/2013/07/11/us/poll-shows-complexity-of-debate-on-trade-offs-in-government-spying-programs.html?pagewanted=all

---------- Forwarded message ----------
From: barry levine 
Date: Thu, Jul 11, 2013 at 9:42 AM
Subject: re: Poll Shows Complexity of Debate on Trade-Offs in Government Spying Programs
To: "letters@nytimes.com"

To the Editor:

  It is plain that James Clapper, like Keith Alexander, lied to Congress. As long as such grave breaches of the public trust go unprosecuted, we the People will rely on Snowdens and Mannings and Drakes and Ellsbergs to tell us the truth. Any anyone who persecutes them for blowing the whistle is setting himself against the will of the sovereign People.

Barry Haskell Levine

Find more of my (largely one-sided) correspondence with the New York Times at:
htt://forgottencenter.blogspot.com/
Or write a letter of your own. Democracy only works when we engage in
the issues of our day

Poll Shows Complexity of Debate on Trade-Offs in Government Spying Programs

Mario Tama/Getty Images

A rally last month for Edward J. Snowden, whose disclosures of government surveillance have prompted a national discussion.

By SCOTT SHANE

Published: July 10, 2013 57 Comments

WASHINGTON — When Edward J. Snowden risked prison to go public with classified documents about National Security Agencysurveillance, he said he wanted to give the public a chance to weigh in on what he considered an excessive intrusion on the privacy of Americans.

It is still unclear whether Mr. Snowden, the 30-year-old former N.S.A. contractor now holed up at a Moscow airport, will escape punishment. But he has succeeded in opening the government spying’s trade-offs between civil liberties and security to the broadest and best-informed public debate in many years, even as intelligence officials are horrified at the exposure of their methods and targets.

Gregory F. Treverton, former vice chairman of the National Intelligence Council, said he found Mr. Snowden’s leaks “reprehensible.” But he said there had been nothing in the past quite comparable to the recent national discussion on government eavesdropping and data collection.

“It is kind of paradoxical that it took Snowden to get to this debate,” said Mr. Treverton, now with the RAND Corporation. “I’m disappointed that neither the intelligence committees nor the administration pushed this debate sooner.”

While both Republicans and Democrats in Congress have labeled Mr. Snowden a traitor, the American public apparently disagrees. In a national poll from Quinnipiac Universityreleased Wednesday, voters said by 55 percent to 34 percent that he was a whistle-blower, not a traitor.

The poll showed that the view of Mr. Snowden as a whistle-blower predominated among nearly every subgroup, regardless of political party, gender, income, education or age. The concerns about privacy and government power raised by the N.S.A. disclosures do not break down along conventional ideological lines, with libertarian-leaning Republicans and Democrats alike questioning the surveillance.

The poll showed continuing division, and perhaps some confusion, in the views of Americans about the surveillance programs Mr. Snowden revealed. In the same poll, for instance, 54 percent of the voters questioned said the security agency’s collection of data on Americans’ phone calls “is necessary to keep Americans safe.” But in a separate question, 53 percent said the same program “is too much intrusion into Americans’ personal privacy.”

“Americans’ views on antiterrorism efforts are complicated,” said Peter A. Brown, assistant director of the Quinnipiac University Polling Institute. “They see the threat from terrorism as real and worth defending against, but they have a sense that their privacy is being invaded and they are not happy about it at all.”

Peter D. Feaver, a political-science professor at Duke who studies public opinion and foreign policy, said that “it would be a mistake to say that the public has a settled and coherent view” on the surveillance programs a month after they were disclosed. But he said that sympathy for Mr. Snowden appeared to be growing.

“You could say that Obama has gotten the debate he said he wanted,” Professor Feaver said, referring to a remark President Obama made when the news of Mr. Snowden’s disclosures first broke. “But he is not prevailing, and he has not really engaged in the debate.”

Mr. Obama “doesn’t want to spend his political capital on this,” said Professor Feaver, who served in the George W. Bush White House. “He wants to spend it on immigration.”

While intelligence officials have tried to explain and defend the N.S.A. programs, their efforts have been seriously handicapped by accusations of inaccuracy.

James R. Clapper, the director of national intelligence, was forced to admit publicly that his previous assurance in Senate testimony that the N.S.A. was not collecting data on millions of Americans was false. A fact sheet was withdrawn after two senators charged that it contained errors. And officials who testified about terrorist plots uncovered with the help of the N.S.A. programs got the details of some cases wrong.

The Snowden disclosures, meanwhile, have prompted a flood of discussion, including Congressional hearings, research organization panels and newspaper editorials and opinion articles, both supportive and critical of the security agency. At least five federal lawsuits have been filed challenging the programs.

The debate culminated in Tuesday’s all-day “workshop” of the Privacy and Civil Liberties Oversight Board, an independent federal panel that invited former government officials and civil libertarians to discuss two of the security agency programs: the collection of data on nearly all telephone calls made in the United States and the interception of e-mail and other messages sent by foreigners overseas using major Internet companies like Google, Yahoo, Facebook and Skype.

A former judge of the Foreign Intelligence Surveillance Court, which oversees eavesdropping orders and programs in secret, said he thought the debate was overdue. The retired federal judge, James Robertson, argued for several changes, including adding a privacy advocate to the court’s closed hearings to allow an adversarial process.

Intelligence officials have expressed concern about damage done by the leaks to the N.S.A.’s collection efforts, as terrorism suspects and others have tried to switch communications methods to avoid detection. They have also noted that Mr. Snowden’s revelations have gone far beyond programs touching on the rights of Americans.

While Mr. Snowden initially explained his leaks to The Guardian as a defense of American privacy, he has made it clear that he opposes surveillance of foreign citizens, as well. By exposing a range of operations by the N.S.A. and its British equivalent against China, Russia, Brazil and the European Union, he has gone far beyond the debate over American privacy and set off a series of international disputes.

Mr. Snowden, who has asylum offers from Venezuela and other countries but has not yet found a way to leave Moscow, spoke again with The Guardian in recent days to defend his actions. In interviews with Glenn Greenwald, a Guardian columnist, Mr. Snowden denied widespread speculation that he had shared the thousands of N.S.A. documents he reportedly has on four laptops with Chinese or Russian intelligence, either deliberately or unwittingly.

“I never gave any information to either government, and they never took anything from my laptops,” Mr. Snowden told the newspaper. He did not explain how he could be certain that intelligence officers of the two countries, which have very sophisticated electronic spying abilities, had not gotten access to the information on his laptops.

http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?hp&_r=0

---------- Forwarded message ----------
From: barry levine 
Date: Tue, Jul 9, 2013 at 10:01 AM
Subject: re: The Laws You Can’t See
To: "letters@nytimes.com"

To the Editor:

  Where there is no adversarial process, there is no duly constituted court of law in the American system.  The FISA court and the Surveillance court that may be modelled on it both fail this simple test. They are wholly owned subsidiaries of our Executive branch not of our Judiciary at all, despite their misleading names.

Barry Haskell Levine

EDITORIAL

The Laws You Can’t See

By THE EDITORIAL BOARD

Published: July 8, 2013 

In the month since a national security contractor leaked classified documents revealing a vast sweep of Americans’ phone records by the federal government, people across the country have disagreed about the extent to which our expectation of personal privacy must yield to the demands of national security.

Related

In Secret, Court Vastly Broadens Powers of N.S.A. (July 7, 2013)

Today's Editorials

Under normal circumstances, this could be a healthy, informed debate on a matter of overwhelming importance — the debate President Obama said he welcomed in the days after the revelations of the surveillance programs.

But this is a debate in which almost none of us know what we’re talking about.

As Eric Lichtblau reported in The Times on Sunday, the Foreign Intelligence Surveillance Court has for years been developing what is effectively a secret and unchallenged body of law on core Fourth Amendment issues, producing lengthy classified rulings based on the arguments of the federal government — the only party allowed in the courtroom. In recent years, the court, originally established by Congress to approve wiretap orders, has extended its reach to consider requests related to nuclear proliferation, espionage and cyberattacks. Its rulings, some of which approach 100 pages, have established the court as a final arbiter in these matters.

But the court is as opaque as it is powerful. Every attempt to understand the court’s rulings devolves into a fog of hypothesis and speculation.

The few public officials with knowledge of the surveillance court’s work either censor themselves as required by law, as Senator Ron Wyden has done in his valiant efforts to draw attention to the full scope of these programs, or they offer murky, even misleading statements, as the director of national intelligence, James Clapper Jr., did before a Senate Intelligence Committee hearing in March.

As outrageous as the blanket secrecy of the surveillance court is, we are equally troubled by the complete absence of any adversarial process, the heart of our legal system. The government in 2012 made 1,789 requests to conduct electronic surveillance; the court approved 1,788 (the government withdrew the other). It is possible that not a single one of these 1,788 requests violated established law, but the public will never know because no one was allowed to make a counterargument.

When judicial secrecy is coupled with a one-sided presentation of the issues, the result is a court whose reach is expanding far beyond its original mandate and without any substantive check. This is a perversion of the American justice system, and it is not necessary.

Even before the latest revelations of government snooping, some members of Congress were trying to provide that check. In a letter to the court in February, Senator Dianne Feinstein and three others asked that any rulings with a “significant interpretation of the law” be declassified. In response, the court’s presiding judge, Reggie Walton, wrote that the court could provide only summaries of its rulings, because the full opinions contained classified information. But he balked at releasing summaries, which he feared would create “misunderstanding or confusion.” It is difficult to imagine how releasing information would make the confusion worse.

Senator Jeff Merkley, Democrat of Oregon, recently reintroduced a bill that would require declassification. It was defeated in December. In light of the national uproar over the most recent revelations, the leadership in Congress should push to pass it and begin to shine some light on this dark corner of the judicial system.

We don’t know what we’ll find. The surveillance court may be strictly adhering to the limits of the Fourth Amendment as interpreted by the Supreme Court. Or not. And that’s the problem: This court has morphed into an odd hybrid that seems to exist outside the justice system, even as its power grows in ways that we can’t see.

http://www.nytimes.com/2013/07/07/us/in-secret-court-vastly-broadens-powers-of-nsa.html

---------- Forwarded message ----------
From: barry levine 
Date: Sun, Jul 7, 2013 at 9:32 PM
Subject: re: In Secret, Court Vastly Broadens Powers of N.S.A.
To: "letters@nytimes.com"

To the Editor:

   Since no one has--or indeed can ever have--standing to challenge the rulings of the FISA court, the "Court of Review" is an empty gesture towards due process of law.  In practice, the FISA court is a wholly-owned subsidiary of our Executive that doesn't deserve the name of "court". The balance of powers on which our nation was founded can't operate when law is being promulgated and interpreted entirely within the Executive branch.

Barry Haskell Levine

In Secret, Court Vastly Broadens Powers of N.S.A.

By ERIC LICHTBLAU

Published: July 6, 2013WASHINGTON — In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.

The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

Last month, a former National Security Agency contractor, Edward J. Snowden, leaked a classified order from the FISA court, which authorized the collection of all phone-tracing data from Verizon business customers. But the court’s still-secret decisions go far beyond any single surveillance order, the officials said.

“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.”

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”

While President Obama and his intelligence advisers have spoken of the surveillance programs leaked by Mr. Snowden mainly in terms of combating terrorism, the court has also interpreted the law in ways that extend into other national security concerns. In one recent case, for instance, intelligence officials were able to get access to an e-mail attachment sent within the United States because they said they were worried that the e-mail contained a schematic drawing or a diagram possibly connected to Iran’s nuclear program.

In the past, that probably would have required a court warrant because the suspicious e-mail involved American communications. In this case, however, a little-noticed provision in a 2008 law, expanding the definition of “foreign intelligence” to include “weapons of mass destruction,” was used to justify access to the message.

The court’s use of that language has allowed intelligence officials to get wider access to data and communications that they believe may be linked to nuclear proliferation, the officials said. They added that other secret findings had eased access to data on espionage, cyberattacks and other possible threats connected to foreign intelligence.

“The definition of ‘foreign intelligence’ is very broad,” another former intelligence official said in an interview. “An espionage target, a nuclear proliferation target, that all falls within FISA, and the court has signed off on that.”

The official, like a half-dozen other current and former national security officials, discussed the court’s rulings and the general trends they have established on the condition of anonymity because they are classified. Judges on the FISA court refused to comment on the scope and volume of their decisions.

Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.

Created by Congress in 1978 as a check against wiretapping abuses by the government, the court meets in a secure, nondescript room in the federal courthouse in Washington. All of the current 11 judges, who serve seven-year terms, were appointed to the special court by Chief Justice John G. Roberts Jr., and 10 of them were nominated to the bench by Republican presidents. Most hail from districts outside the capital and come in rotating shifts to hear surveillance applications; a single judge signs most surveillance orders, which totaled nearly 1,800 last year. None of the requests from the intelligence agencies was denied, according to the court.

Beyond broader legal rulings, the judges have had to resolve questions about newer types of technology, like video conferencing, and how and when the government can get access to them, the officials said.

The judges have also had to intervene repeatedly when private Internet and phone companies, which provide much of the data to the N.S.A., have raised concerns that the government is overreaching in its demands for records or when the government itself reports that it has inadvertently collected more data than was authorized, the officials said. In such cases, the court has repeatedly ordered the N.S.A. to destroy the Internet or phone data that was improperly collected, the officials said.

The officials said one central concept connects a number of the court’s opinions. The judges have concluded that the mere collection of enormous volumes of “metadata” — facts like the time of phone calls and the numbers dialed, but not the content of conversations — does not violate the Fourth Amendment, as long as the government establishes a valid reason under national security regulations before taking the next step of actually examining the contents of an American’s communications.

This concept is rooted partly in the “special needs” provision the court has embraced. “The basic idea is that it’s O.K. to create this huge pond of data,” a third official said, “but you have to establish a reason to stick your pole in the water and start fishing.”

Under the new procedures passed by Congress in 2008 in the FISA Amendments Act, even the collection of metadata must be considered “relevant” to a terrorism investigation or other intelligence activities.

The court has indicated that while individual pieces of data may not appear “relevant” to a terrorism investigation, the total picture that the bits of data create may in fact be relevant, according to the officials with knowledge of the decisions.

Geoffrey R. Stone, a professor of constitutional law at the University of Chicago, said he was troubled by the idea that the court is creating a significant body of law without hearing from anyone outside the government, forgoing the adversarial system that is a staple of the American justice system. “That whole notion is missing in this process,” he said.

The FISA judges have bristled at criticism that they are a rubber stamp for the government, occasionally speaking out to say they apply rigor in their scrutiny of government requests. Most of the surveillance operations involve the N.S.A., an eavesdropping behemoth that has listening posts around the world. Its role in gathering intelligence within the United States has grown enormously since the Sept. 11 attacks.

Soon after, President George W. Bush, under a secret wiretapping program that circumvented the FISA court, authorized the N.S.A. to collect metadata and in some cases listen in on foreign calls to or from the United States. After a heated debate, the essential elements of the Bush program were put into law by Congress in 2007, but with greater involvement by the FISA court.

Even before the leaks by Mr. Snowden, members of Congress and civil liberties advocates had been pressing for declassifying and publicly releasing court decisions, perhaps in summary form.

Reggie B. Walton, the FISA court’s presiding judge, wrote in March that he recognized the “potential benefit of better informing the public” about the court’s decisions. But, he said, there are “serious obstacles” to doing so because of the potential for misunderstanding caused by omitting classified details.

Gen. Keith B. Alexander, the N.S.A. director, was noncommital when he was pressed at a Senate hearing in June to put out some version of the court’s decisions.

While he pledged to try to make more decisions public, he said, “I don’t want to jeopardize the security of Americans by making a mistake in saying, ‘Yes, we’re going to do all that.’
”

http://www.nytimes.com/2013/07/01/us/job-title-key-to-inner-access-held-by-snowden.html?ref=todayspaper&_r=0

---------- Forwarded message ----------
From: barry levine 
Date: Mon, Jul 1, 2013 at 9:28 AM
Subject: re: Job Title Key to Inner Access Held by Snowden
To: "letters@nytimes.com"

To the Editor:

  Never mind that a professional spy has slippery circumlocutions for what he did. When James Clapper lied to the Senate Intelligence Oversight Committee, he spat on Congressional oversight. Effectively, he declared that as an agent of the Executive, he is answerable to no one and to no law.

   Until James Clapper is canned, charged and convicted of lying to Congress, we need more Edward Snowdens, not fewer.

Barry Haskell Levine

Job Title Key to Inner Access Held by Snowden

By SCOTT SHANE and DAVID E. SANGER

Published: June 30, 2013 266 Comments

WASHINGTON — Intelligence officials refer to Edward J. Snowden’s job as a National Security Agency contractor as “systems administrator” — a bland name for the specialists who keep the computers humming. But his last job before leaking classified documents about N.S.A. surveillance, he told the news organization The Guardian, was actually “infrastructure analyst.”

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Susan Walsh/Associated Press

James R. Clapper Jr., director of national intelligence. Edward J. Snowden’s records forced him to backtrack on testimony.

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It is a title that officials have carefully avoided mentioning, perhaps for fear of inviting questions about the agency’s aggressive tactics: an infrastructure analyst at the N.S.A., like a burglar casing an apartment building, looks for new ways to break into Internet and telephone traffic around the world.

That assignment helps explain how Mr. Snowden got hold of documents laying bare the top-secret capabilities of the nation’s largest intelligence agency, setting off a far-reaching political and diplomatic crisis for the Obama administration.

Even as some members of Congress have challenged the N.S.A.’s collection of logs of nearly every phone call Americans make, European officials furiously protested on Sunday after Mr. Snowden’s disclosure that the N.S.A. has bugged European Union offices in Washington and Brussels and, with its British counterpart, has tapped the Continent’s major fiber-optic communications cables.

On Sunday evening, The Guardian posted an articlesaying documents leaked by Mr. Snowden show 38 embassies and missions on a list of United States electronic surveillance targets. Some of those offices belong to allies like France, Italy, Japan and Mexico, The Guardian said.

Mr. Snowden, who planned his leaks for at least a year, has said he took the infrastructure analyst position with Booz Allen Hamilton in Hawaii in March, evidently taking a pay cut, to gain access to a fresh supply of documents.

“My position with Booz Allen Hamilton granted me access to lists of machines all over the world the N.S.A. hacked,” he told The South China Morning Post before leaving Hong Kong a week ago for Moscow, where he has been in limbo in the transit area of Sheremetyevo airport. “That is why I accepted that position about three months ago.”

A close reading of Mr. Snowden’s documents shows the extent to which the eavesdropping agency now has two new roles: It is a data cruncher, with an appetite to sweep up, and hold for years, a staggering variety of information. And it is an intelligence force armed with cyberweapons, assigned not just to monitor foreign computers but also, if necessary, to attack.

After the 2001 terrorist attacks, the documents suggest, the N.S.A. decided it was too risky to wait for leads on specific suspects before going after relevant phone and Internet records. So it followed the example of the hoarder who justifies stacks of paper because someday, somehow, a single page could prove vitally important.

The agency began amassing databases of “metadata” — logs of all telephone calls collected from the major carriers and similar data on e-mail traffic. The e-mail program was halted in 2011, though it appears possible that the same data is now gathered in some other way.

The documents show that America’s phone and Internet companies grew leery of N.S.A. demands as the years passed after 9/11, fearing that customers might be angry to find out their records were shared with the government. More and more, the companies’ lawyers insisted on legal orders to compel them to comply.

So the N.S.A. came up with a solution: store the data itself. That is evidently what gave birth to a vast data storage center that the N.S.A. is building in Utah, exploiting the declining cost of storage and the advance of sophisticated search software.

Those huge databases were once called “bit buckets” in the industry — collections of electronic bits waiting to be sifted. “They park stuff in storage in the hopes that they will eventually have time to get to it,” said James Lewis, a cyberexpert at the Center for Strategic and International Studies, “or that they’ll find something that they need to go back and look for in the masses of data.” But, he added, “most of it sits and is never looked at by anyone.”

Indeed, an obscure passage in one of the Snowden documents — rules for collecting Internet data that the Obama administration wrote in secret in 2009 and that the Foreign Intelligence Surveillance Court approved — suggested that the government was concerned about its ability to process all the data it was collecting. So it got the court to approve an exception allowing the government to hold on to that information if it could not keep up. The rules said that “the communications that may be retained” for up to five years “include electronic communications acquired because of the limitation on the N.S.A.’s ability to filter communications.”As one private expert who sometimes advises the N.S.A. on this technology put it: “This means that if you can’t desalinate all the seawater at once, you get to hold on to the ocean until you figure it out.”

Collecting that ocean requires the brazen efforts of tens of thousands of technicians like Mr. Snowden. On Thursday, President Obama played down Mr. Snowden’s importance, perhaps concerned that the manhunt was itself damaging the image and diplomatic relations of the United States. “No, I’m not going to be scrambling jets to get a 29-year-old hacker,” the president said during a stop in Senegal.

Mr. Obama presumably meant the term to be dismissive, suggesting that Mr. Snowden (who turned 30 on June 21) was a young computer delinquent. But as an N.S.A. infrastructure analyst, Mr. Snowden was, in a sense, part of the United States’ biggest and most skilled team of hackers.

The N.S.A., Mr. Snowden’s documents show, has worked with its British counterpart, Government Communications Headquarters, to tap into hundreds of fiber-optic cables that cross the Atlantic or go on into Europe, with the N.S.A. helping sort the data. The disclosure revived old concerns that the British might be helping the N.S.A. evade American privacy protections, an accusation that American officials flatly deny.

And a secret presidential directive on cyberactivities unveiled by Mr. Snowden — discussing the primary new task of the N.S.A. and its military counterpart, Cyber Command — makes clear that when the agency’s technicians probe for vulnerabilities to collect intelligence, they also study foreign communications and computer systems to identify potential targets for a future cyberwar.

Infrastructure analysts like Mr. Snowden, in other words, are not just looking for electronic back doors into Chinese computers or Iranian mobile networks to steal secrets. They have a new double purpose: building a target list in case American leaders in a future conflict want to wipe out the computers’ hard drives or shut down the phone system.

Mr. Snowden’s collection of pilfered N.S.A. documents has cast an awkward light on officials’ past assurances to Congress and the public about their concern about Americans’ privacy.

It was only in March that James R. Clapper Jr., the director of national intelligence, told a Senate committee that the N.S.A. did not collect data on millions of Americans. Mr. Snowden’s records forced Mr. Clapper to backtrack, admitting his statement was false.

Last week, two senators challenged even the accuracy of a fact sheet prepared by the N.S.A. to counter Mr. Snowden’s claims about the phone data and Internet collection programs. Agency officials did not defend themselves; the fact sheet simply disappeared, without explanation, from the agency’s Web site.

Newly disclosed slides from an N.S.A. PowerPoint presentation on the agency’s Prism database of Internet data, posted on Saturday by The Washington Post, reveal that the F.B.I. plays a role as middleman between the N.S.A. and Internet companies like Google and Yahoo. The arrangement provides the N.S.A. with a defense, however nominal, against claims that it spies on United States soil.

Even in the unaccustomed spotlight after the N.S.A. revelations, intelligence officials have concealed more than they have revealed in careful comments, fearful of alerting potential eavesdropping targets to agency methods. They invariably discuss the N.S.A.’s role in preventing terrorist attacks, an agency priority that the public can easily grasp.

In fact, as Mr. Snowden’s documents have shown, the omnivorous agency’s operations range far beyond terrorism, targeting foreigners of any conceivable interest. British eavesdroppers working with the N.S.A. penetrated London meetings of the Group of 20 industrialized nations, partly by luring delegates to fake Internet cafes, and the N.S.A. hacked into computers at Chinese universities.

At Fort Meade, on the N.S.A.’s heavily guarded campus off the Baltimore-Washington Parkway in Maryland, such disclosures are seen as devastating tip-offs to targets. The disclosure in Mr. Snowden’s documents that Skype is cooperating with orders to turn over data to the N.S.A., for example, undermined a widespread myth that the agency could not intercept the voice-over-Internet service. Warned, in effect, by Mr. Snowden, foreign officials, drug cartel leaders and terrorists may become far more careful about how, and how much, they communicate.

“We’re seeing indications that several terrorist groups are changing their communications behavior based on these disclosures,” one intelligence official said last week, speaking on the condition of anonymity. “We’re going to miss tidbits that could be useful in stopping the next plot.”

Mr. Snowden’s breach is an unplanned test of the N.S.A.’s decades-old conviction that it can operate effectively only under absolute secrecy. The agency is conducting a damage assessment — a routine step after major leaks — but the assessment itself is likely to remain classified.

The N.S.A.’s assessment of Mr. Snowden’s case will likely also consider what has become, for intelligence officials, a chilling consideration: there are thousands of people of his generation and computer skills at the agency, hired in recent years to keep up with the communications boom.

The officials fear that some of them, like young computer aficionados outside the agency, might share Mr. Snowden’s professed libertarian streak and skepticism of the government’s secret power. Intelligence bosses are keeping a closer eye on them now, hoping that there is not another self-appointed whistle-blower in their midst.