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Hullabaloo


Wednesday, January 15, 2014

 
This one's too cold and this one's to warm and this one is juuuuuust right

by digby

The NY Times previews the president's proposed NSA reforms scheduled to be made public on Friday:
President Obama will issue new guidelines on Friday to curtail government surveillance, but will not embrace the most far-reaching proposals of his own advisers and will ask Congress to help decide some of the toughest issues, according to people briefed on his thinking.

Mr. Obama plans to increase limits on access to bulk telephone data, call for privacy safeguards for foreigners and propose the creation of a public advocate to represent privacy concerns at a secret intelligence court. But he will not endorse leaving bulk data in the custody of telecommunications firms, nor will he require court permission for all so-called national security letters seeking business records.

The headquarters of the National Security Agency at Fort Meade, Md. “We do not use foreign intelligence capabilities to steal the trade secrets of foreign companies,” an N.S.A. official said.

The emerging approach, described by current and former government officials who insisted on anonymity in advance of Mr. Obama’s widely anticipated speech, suggested a president trying to straddle a difficult line in hopes of placating foreign leaders and advocates of civil liberties without a backlash from national security agencies. The result seems to be a speech that leaves in place many current programs, but embraces the spirit of reform and keeps the door open to changes later.
Ah, the entirely predictable bucket of lukewarm spit guaranteed to amount to very little. Not that the president's commission was exactly bold in its suggested reforms in the first place, but the president has now officially made it the radical, civil liberties position, while he's the proverbial grown-up in the room brokering a "deal" between the constitution and the surveillance state. Then it will be the congressional crazies' turn to water it down even more.

Unfortunately, no president is going to publicly "pick a side" in an argument like this, even a vaunted constitutional scholar. It just doesn't happen. The congress is likely to either ignore or legalize most of the affronts to the constitution and the conservative courts seem highly unlikely to find much fault with any of it. So, I don't have high hopes that we will see major reforms.

But on the margins there will be some changes for the good. Unlike that moldy old Bill of Rights nobody really cares about (except the 2nd Amendment, of course) the tech companies may be able to exert real power (aka $$$$$) to rein in the government snooping if only to reassure their customers and preserve their market share around the world. So there's that. And the spooks may have belatedly realized that there really are no secrets in this brave new world and they'd better think a little bit about the ramifications of their methods being found out by citizens and foreigners alike. So it's not a big waste of time by any means. Ever since it was created in the wake of the second world war, the secret state has had to be exposed every 25 years or so just to keep them from doing even worse than they already do. As long as we have an "existential threat" (and God knows we'll create one if we don't) they will be building new agencies and preserving the old institutions dedicated to "protecting us" from those who want to "take away our freedom." Whether they actually work or not.

Update: Seriously, does anyone think this is going to end well?

Judge John D. Bates, a former chief judge of the Foreign Intelligence Surveillance Court, urged Mr. Obama and Congress not to alter the way the court is appointed or to create an independent public advocate to argue against the Justice Department in secret proceedings. Any such advocate, he wrote, should instead be appointed only when the court decided one was needed.

Judge Bates objected to the workload of requiring that courts approve all national security letters, which are administrative subpoenas allowing the F.B.I. to obtain records about communications and financial transactions without court approval.

And he raised concerns about greater public disclosure of court rulings, arguing that unclassified summaries would be “likely to promote confusion and misunderstanding.”
[...]
“We admire Judge Bates and respect his views,” said Cass R. Sunstein, of Harvard Law School and a former Obama White House official who served on the review panel. “We respectfully disagree with that one, on the ground that the judge sometimes is not in the ideal position to know whether a particular view needs representation and that in our tradition, standardly, the judge doesn’t decide whether one or another view gets a lawyer.”

The mere idea that someone has to point this out --- to a Judge --- says everything you need to know about where this debate is and where it's going.

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