Civil liberties board says “end it don’t mend it.”
by digby
Back in the bad old Bush days, there was a genuine effort n the part of congress to create at least the possibility of a civil liberties input into all the new surveillance and spying activities of the government. They created the Privacy and Civil Liberties Oversight board — which immediately fell into the political pit and was barely heard from again. This 2012 piece by Scott Shane gives a brief overview of its troubled history:
The board got off to a slow start initially and held its first meeting in 2006. Critics noted that since it was then technically part of the White House, it could hardly be considered independent — a point a Democratic member, Lanny J. Davis, emphasized when he resigned in protest in 2007.
That year, heeding the complaints, Congress passed new legislation strengthening the board and removing it from the White House. But for nearly three years after taking office, President Obama did not even nominate a full slate of five members to the reconstituted board. He finally completed the nominations in December [2012].
[…]
By all accounts, the 2007 law gives the board genuine clout. It will have access to even the most secret government programs, with subpoena power to enforce its demands. In principle, it could prove to be a significance check on the counterterrorism machinery built over the last decade. But to do so, the board will have to overcome a daunting history, even by Washington standards, of delay and neglect.
After the Snowden revelations, the board finally went to work. And they are issuing a report this week:
An independent federal privacy watchdog has concluded that the National Security Agency’s program to collect bulk phone call records has provided only “minimal” benefits in counterterrorism efforts, is illegal and should be shut down.
The findings are laid out in a 238-page report, scheduled for release by Thursday and obtained by The New York Times, that represent the first major public statement by the Privacy and Civil Liberties Oversight Board, which Congress made an independent agency in 2007 and only recently became fully operational.
The report is likely to inject a significant new voice into the debate over surveillance, underscoring that the issue was not settled by a high-profile speech President Obama gave last week. Mr. Obama consulted with the board, along with a separate review group that last month delivered its own report about surveillance policies. But while he said in his speech that he was tightening access to the data and declared his intention to find a way to end government collection of the bulk records, he said the program’s capabilities should be preserved.
The Obama administration has portrayed the bulk collection program as useful and lawful while at the same time acknowledging concerns about privacy and potential abuse. But in its report, the board lays out what may be the most detailed critique of the government’s once-secret legal theory behind the program: that a law known as Section 215 of the Patriot Act, which allows the F.B.I. to obtain business records deemed “relevant” to an investigation, can be legitimately interpreted as authorizing the N.S.A. to collect all calling records in the country.
The program “lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value,” the report said. “As a result, the board recommends that the government end the program.”
There are two dissenters, both Republicans from the Bush administration. They use the usual vacuous excuses that “morale” will be hurt and the spooks will just let Americans die out of sheer depression if the program is changed. (My favorite: that the “peace of mind” that comes from the NSA uncovering no terrorist attacks makes it all worth it.)
But regardless of the legal finding, the recommendations are unanimous and unequivocal: end it don’t mend it.
I guess one can dismiss all these people as a bunch of libertarian cranks who don’t understand the modern world or the threats we face. But it would be wrong. The fact that the congressional Reps and Senators who were ostensibly in charge of oversight are now incoherently shouting that the Russians are coming says all you need to know about their reliability. Something went sideways with the secret surveillance state over the past decade under both Democrats and Republicans. Something that was anticipated by certain people who understood that one of the major dangers we faced in the post-9/11 world was going to come from within:
“We thought everything with a national security label on it was going to pass,” said Thomas H. Kean, chairman of the 9/11 commission and former governor of New Jersey, in an interview. “So we felt very strongly that there had to be some voice for civil liberties in the debate.”
They tried. It didn’t happen, then. maybe it will now. Sometimes it takes a whistleblower.
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