Friday, July 19, 2013






Starting with NSA whistle-blower Ed Snowden who remains in Russia.  Kasie Hunt and Kelly O'Donnell (NBC News) report US Senator Lindsey Graham "has told NBC News that the United States should consider boycotting the upcoming Winter Games if Russian President Vladimir Putin grants leaker Edward Snowden asylum -- a suggestion that a top U.S. Olympic official quickly rejected." First off, Putin has no say in temporary asylum.  The process involves one ministry only.  As we noted Tuesday, "Putin wouldn't have a formal voice in temporary asylum.  In fact, he should have no role in the decision.  Again, that's per State Dept friend, however, that's how the process is supposed to work and government processes don't always work as they are supposed to."  The temporary process also moves quickly.  As from Graham's suggestion?

Stupidest thing in the world.  Unless he's trying to get kicked out of the Senate.  In 1980, the US boycotted the summer Olympics in Moscow.  Jimmy Carter was President of the United States then.  The decision was costly in so many ways.  First off, US citizens have been training for four years.  Second off, this politicizes the Olympics which are not supposed to be politicized.  Third, do you realize how much money is at play right now?  NBC suits will not be forgiving (NBC is carrying the Winter Olympics).  That's a ton of ad revenue at stake and they've got nothing currently to plug into the schedule if the US doesn't compete.  (And if the US doesn't compete, they could still air the Olympics but the US ratings would be in the toilet.)

Again, if Graham's trying to retire from the Senate, this is the way to do it.  He will be publicly vilified for weeks should this take place.  Chris Moody (Yahoo News) reports US House Speaker John Boehner has responded, stating, "Listen, I love Sen. Graham.  We've been close friends for 20 years. But I think he's dead wrong.  Why would we want to punish U.S. athletes who have been training for three years to compete in the Olympics over a traitor who can't find a place to call home?"

Traitor?  A traitor would be someone, for example, in Congress who took an oath to uphold the Constitution and then worked to secretly destroy the Bill of Rights.  That would qualify as a traitor.  Ed Snowden?  Nope.  But Boehner's remarks put him in the same camp as the editor of The Moscow Times' Michael Bohm.   In other words, Boehner's talking like the Kremlin.  How strange it must be for his home district.

Roger Runnigen (Bloomberg News) reports the White House's stomping feet and pity party may mean that a September summit with Putin is called off, "Canceling the Putin meeting, announced in June, would deal a blow to administration efforts to bolster already strained relations with Russia and would be a direct challenge to the Russian’s prestige on the world stage."  Whether the meeting is on or off isn't the only thing the White House is staying silent on.  Spencer Ackerman (Guardian) reports:

The Obama administration is refusing to say whether it will seek to renew a court order that permits the National Security Agency's bulk collection of phone records on millions of Verizon customers when it at the end of this week.
Officials declined to discuss what action they intend to take about the order at the center of the current surveillance scandal, which formally expires at 5pm Friday.

Yesterday  PBS' The NewsHour (link is video, audio and text) featured a debate on the topic between whistle-blower Daniel Ellsberg (Pentagon Papers) and former Attorney General Michael Mukasey

DANIEL ELLSBERG, former State Department official: Pardon me, but listening to that just now, I have to smile at the thought that our friends will be very upset about the thought that Snowden had exposed that we were spying on them, which he has done.
I must say, I think a lot of them would be envious of our capability. I think Russia and China would be envious of our capability, the NSA capabilities. It's exactly what they want in countries that aren't exactly democratic.
My concern is that the very existence of this kind of capability chills free speech in a disastrous way. I cannot see how there can be investigative reporting of the national security community, when the identity, the location, the metadata, and really the contents of every communication between a journalist and every source, every journalist, every source, is known to the executive branch, especially one that has been prosecuting twice as many journalist -- sources as any president before.
Moreover, my even larger concern is, I don't see how democracy can survive when one branch, the executive branch, has all the personal communications of every member of Congress, and every judge, every member of the judiciary, as well as the press, the fourth estate that I have just been describing.
I don't see how the blackmail capability that's involved there can be -- will not be abused, as it has happened in the past, including to me, by the way, and to other -- and to journalists.
 Without that freedom to investigative or bring checks and balances, we won't have a real democracy. That's my concern.
But Snowden's whistle-blowing is having an impact on Americans.  Mark Clayton (Christian Science Monitor) reports:

Roughly 70 lawsuits have been filed since 2005 alleging that secret US surveillance programs violated someone's constitutional rights, but federal judges have dismissed most of the cases before the merits of the charges were ever heard, these experts say. In particular, plaintiffs have stumbled over the challenge of gaining legal standing to even bring suit against the government, primarily because they could not identify the secret surveillance program that they claimed had harmed them.
But fugitive leaker Edward Snowden, who in June divulged to reporters top-secret documents about two US surveillance programs run by the National Security Agency (NSA), may have provided a way to get around that hurdle, constitutional lawyers say. Since the Snowden leak (and US officials' subsequent confirmation that the documents are real), at least five lawsuits have been filed, the latest on Tuesday, alleging that the NSA program to track all Americans' telephone records violates the US Constitution.

Ed Snowden's whistle-blowing had made a real impact.  Yesterday's House Judiciary Committee hearing would not have taken place without those revelations.  Committee Chair Bob Goodlatte asked near the start of the hearing, "Why not simply have told the American people that we're engaging in this type of activity in terms of gathering the information?"

Asking a simple question, it turns out, is much easier than getting an answer. Ali Watkins (McClatchy Newspapers) reports: US House Rep Jerrold Nadler stating,  "The fact that a secret court unaccountable to public knowledge of what it’s doing . . . may join you in misusing or abusing the statutes is of no comfort whatsoever.  So to tell me you go to the FISA court is irrelevant."

The hearing was on the spying and the FISA court.   The first panel was made up of DoJ's James Cole, NSA's John C. Inglis, Office of Director of National Intelligence's Robert S. Litt and the FBI's Stephanie Douglas.  The second panel was Steptoe & Johnson, LLP's Stewart Baker, the ACLU's Jameel Jaffer and CNSS' Kate Martin.  We covered it in yesterday's snapshot, Kat covered it in "FISA rulings," Wally covered it in "Proof that we should be thanking Ed Snowden (Wally)" and Ava covered it in "House Judiciary Committee hearing."

Ranking Member John Conyers attempted to get some straight answers.

Ranking Member John Conyers:  If only relevant conversations can be secured under Section 215 of the PATRIOT Act, then why on earth would we find now that we are collecting the names of everybody in the United States of America who made any calls for the last 6 years or more?

Stephanie Douglas:  Sir, we're not collecting names.  215 only collects phone numbers, the time and date of the phone call and the duration of the phone call.

Ranking Member John Conyers:  Well how do you consider that to be relevant to anything if there is only collecting the names.  I mean, look, if this is an innocent pastime we just do to keep busy or for some other reason why on earth would be collecting just the numbers of everybody in the United States of America for at least six years?

Stephanie Douglas:  I can speak to the, uhm, applications against investigations and, in this case for 216, it would be specific to counterterrorism investigations, uhm, that information enables us to, uh, search against connections to other, uh, if there's a communication between a US-based phone number and a phone number that is overseas related to terrorism. And I know that Mr. Inglis explained to you the reasonable articula -- articulable suspicion standard by which we have to search against those phone numbers.

Ranking Member John Conyers: Well here-here we're faced with the fundamental problem in this hearing.  We're not questioning access, we're talking about the collection in the first instance. In the first instance when you collect the phone numbers of everybody in the United States for over six years, there wasn't anything relevant in those conversations.  Now you have them.  What I've been getting out of all of this is that they may -- "This access may become valuable, Mr. Ranking Member, and so that's why we do it this way." But I maintain that the Fourth Amendment to be free from unreasonable search and seizure to mean that this mega data collected in such a super aggregated fashion can amount to a Fourth Amendment violation before you do anything else.  You've already violated the law, as far as I am concerned.  And that is, in my view, the problem.  And of course to further document the first question that the Chairman of this Committee asked -- is why didn't we just tell everybody about it -- is because the American people would be totally outraged -- as they are getting now as they become familiar with this -- that every phone number that they've ever called is already a matter of record.  And we skip over whether the collection was a Fourth Amendment violation, we just say that the access proved, in one case or two, that it was very important and that's why we did it this way.

The witnesses' non-answers and rationalizing was frustrating throughout the hearing.   James Risen (New York Times) observes:

While administration officials defended the surveillance during the hearing, several lawmakers said that the data collection was unsustainable, and that Congress would move to either revoke the legislative authorization for the bulk collection now or at least refuse to renew it when it expires in 2015. Mr. [James] Sensenbrenner interrupted James Cole, a deputy attorney general, to say, “Unless you realize you’ve got a problem, that is not going to be renewed.”

Last night, Ava noted the disrespect shown the Committee by the witnesses on the first panel.  She wrote about how the Committee members were talked down to and she's correct.  The witnesses were not respectful and they behaved as if they owned the House.  Sari Horwitz and William Branigin (Washington Post) report, "The sharp and sometimes angry questioning stood in stark contrast to the tone of hearings on the surveillance programs by congressional intelligence committees in recent weeks."

In the House (as in the Senate), during rounds of questioning, each member of the Committee is limited to a set time.  (It's five minutes in the House.)  Conyers' time had expired and he wrapped up -- or thought he had when he was interrupted.

Ranking Member John Conyers: This is unsustainable, it's outrageous and must be stopped immediately.  

John Inglis:  Sir, if I may compliment the answer Ms. Douglas gave, uh, with respect to the question of relevance, of course it must be legally relevant and it must therefore have operational relevance.  I'd like to address the operational relevance and then defer to my colleagues.

Ranking Member John Conyers:  Well you don't -- Wait a minute.  We're handling this discussion.  I, uh, I asked her.  Maybe somebody else can do it.  But my time has expired.  And I appreciate you're volunteering to help out here but it's clear to me that we have a very serious violation of the law in which the Judiciary Committee deliberately put in the issue of relevance.  And now you're going to help me out and defer to somebody else?

John Inglis:  No, sir, I meant to actually provide additional information. I'd be happy to take the question for the record if time is not allowing that.

 Ranking Member John Conyers: Well in all fairness -- 

Committee Chair Bob Goodlatte: Without exception, the gentleman is recognized for an additional minute to allow another member of the panel to answer the question if he so chooses.

Ranking Member John Conyers:  No, I don't so choose.  I'm satisfied exactly with what I've gotten from the witness I asked the question to.

Former US Senator Gordon Humphrey wrote POLITIO about Ed Snowden, "Respectfully, I say to Sweden, ‘\'America has done wrong in this instance. Stand up to her. Grant Edward Snowden asylum. You will do the people of the United States a great favor to resist their government in this matter and at this moment.."

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