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As Judge Rules NSA Surveillance “Almost Orwellian,” Obama Prepares to Leave Spying Program Intact

On Monday, a federal judge ruled the NSAu2019s bulk collection of Americansu2019 phone records, quote, “almost certainly” violates the Fourth Amendmentu2019s prohibition against unreasonable searches.


This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We turn now to the latest about the National Security Agency. On Monday, a federal judge ruled the NSA’s bulk collection of Americans’ phone records, quote, “almost certainly” violates the Fourth Amendment’s prohibition against unreasonable searches. U.S. District Judge Richard Leon described the NSA’s activities as, quote, “almost Orwellian.” He wrote, quote, “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.” Judge Leon was appointed to the bench by President George W. Bush in 2002. Leon suspended enforcement of his injunction against the program pending an expected appeal by the government.

The suit was brought by conservative attorney Larry Klayman, the founder of Judicial Watch, and based on information leaked by former NSA contractor Edward Snowden. In a statement Monday, Snowden said, “I acted on my belief that the NSA’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts.” Snowden went on to say, quote, “Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many,” he said.

Joining us in Washington, D.C., is Sascha Meinrath, director of the New America Foundation’s Open Technology Institute. He has served as an expert witnesses who advised the Review Group on Intelligence and Communications which was tasked by President Obama to review the NSA’s activities.

Welcome back to Democracy Now!, Sascha. First, respond to the judge’s ruling.

SASCHA MEINRATH: The ruling is really historic. It’s the very vanguard of the pushback that says, constitutionally, legally, what has been taking place is unacceptable. And I think it’s a reaffirmation of both our Fourth Amendment rights, our constitutionally guaranteed rights, in this constant interplay of balancing national security and individual rights.

AMY GOODMAN: Talk about the ruling specifically when it comes to his saying that it’s almost surely unconstitutional, calling the collection of data “Orwellian.”

SASCHA MEINRATH: So, the judge issued a very strong ruling. This clearly is a case where the judge feels very empowered to say this should absolutely cease and desist, and because he feels that there is no evidence before his court that this has actually been a successful balancing of national security and individual rights, that he wants to give the U.S. government every opportunity to respond on appeal. He said, basically, this will probably take another six months. But in the meantime, he feels so strongly about his position that he’s saying the government must now prepare the groundwork, lay the foundation for accepting this decision and complying with it, i.e. ceasing and desisting the widespread data collection that it has been doing for the past 10, 12 years.

AMY GOODMAN: The head of the National Security Agency appeared before Congress last Wednesday to argue bulk collection of U.S. phone data should continue. General Keith Alexander compared the mass sweep of phone records to the running of a library.

GEN. KEITH ALEXANDER: If you look at all the information that is out there, the billions and billions of books of information that are out there, there is no viable way to go through that information if you don’t use metadata. In this case, metadata is a way of knowing where those books are in the library and a way of focusing our collection, the same that our allies do, to look at where are the bad books. From our perspective, from the National Security Agency’s perspective, what we do is get great insights into the bad actors overseas.

AMY GOODMAN: Your response to that, Sascha Meinrath?

SASCHA MEINRATH: First, it’s a failed metaphor, for sure, but certainly this is also the case where they’re scrambling to find justification for, in essence, criminalizing everyone. And by that I mean, when you’re doing active search and seizure of personal information—and let’s be clear, metadata is still personal information—around everyone in the country, what you’ve in essence done is you’ve said, “We’re casting a dragnet where we assume the guilt of everyone.” And what today’s—yesterday’s court ruling really demonstrated is that that is unacceptable. You must have reasonable cause to be collecting this. There must be warrants issued. There must be a presumption of guilt, an assumption that there is some reason to collect individual personal information about citizens and residents in the United States. And that has not been met. And what’s clear here is that the NSA is now scrambling for some justification, some reason why it’s OK to say everyone, not just in the U.S., but on the planet, is worthy of active surveillance.

AMY GOODMAN: I want to ask you, Sascha Meinrath, about the presidential advisory committee charged with reviewing the NSA. The panel has reportedly concluded that the Obama administration should leave most of the National Security Agency’s controversial bulk spying intact. Last week in an interview with MSNBC’s Chris Matthews, President Obama talked about the review panel.

PRESIDENT BARACK OBAMA: I’ve said before, and I will say again, the NSA actually does a very good job about not engaging in domestic surveillance—not reading people’s emails, not listening to the content of their phone calls. Outside of our borders, the NSA is more aggressive. It’s not constrained by laws. And part of what we’re trying to do over the next month or so is, having done an independent review and brought a whole bunch of folks, civil libertarians and lawyers and others, to examine what’s being done—I’ll be proposing some self-restraint on the NSA and—you know, to initiate some reforms that can give people more confidence.
AMY GOODMAN: That’s President Obama. Sascha Meinrath, you were an adviser to President Obama’s advisory committee. Talk about what this committee advised, what’s been leaked, and what President Obama said.

SASCHA MEINRATH: Sure. Well, the irony that the White House is now leaking information and is also upset that other people have leaked information previously, particularly Snowden, is not lost on me.

But this NSA review group ostensibly was to take a look at an independent expert review of what the NSA was doing and to think about ways in which it could be better balanced between the individual rights and national security interests. I was part of that review process. Calling me adviser may be a bit strong, but certainly I was brought in to provide expert information about concerns that were clear in what they were doing. And it’s also clear that they, thus far, have not released any information that would lead me to believe that they’ve taken those concerns very seriously.

So, in essence, what you have right now is a reaffirmation, just last week, that the metadata collection, this notion that—and the president is correct: He’s not reading emails very often, they’re not listening to phone calls very often. What they’re collecting is who you’re in contact with, when you’re in contact with them, where you’re located—all these metadata around the actual content of your phone calls and emails. And the NSA review group has concluded, according to the leaks that have happened thus far, that that should continue. Now, mind you, that was leaked on Friday. On Monday, a federal judge says that exact same activity is unconstitutional.

AMY GOODMAN: Let’s talk about the panel members and the independence of this panel—Richard Clarke, former U.S. cybersecurity adviser; Michael Morell, former deputy CIA director; Geoffrey Stone, University of Chicago law professor; Cass Sunstein, Harvard Law School professor, who once worked in the administration; Peter Swire, who served on Obama’s National Economic Council. Sascha Meinrath?

SASCHA MEINRATH: Sure. So, I am on record and quite public in my concern over the actual independence of this group. I’m one of the 47 technologists that wrote a letter to the president saying we need technological acumen on a technological review committee. That was ignored, unfortunately. I was also very concerned about the notion that intelligence community insiders, administration officials comprise the entirety of this five-member group. And I do not see how you can do a truly independent review of surveillance when so many people are tied in. And this is, I think, epitomized by the fact that this review group is housed under James Clapper, under the very agency that it is supposed to be independently reviewing.

AMY GOODMAN: What do you mean it’s housed there?

SASCHA MEINRATH: So, if you go to their website, you actually go to DNI, you actually go to the intelligence ministry here in the United States. That’s where you can get information about the group. It reports to Clapper and his agency. And then that agency passes along whatever is vetted out of that report. It passes that along to the president for the president’s review.

AMY GOODMAN: And how do you see that influence? Now, we haven’t seen the report; we’ve only seen their leaks.


AMY GOODMAN: But how did that influence the discussions you heard?

SASCHA MEINRATH: Well, the discussions I heard, for example, in the meeting that I was at, whenever we would bring up sensitive information around like the actual technological nuts and bolts of how this worked—public information, but public information that is still officially classified—the review group would say, “Well, we need to have a secure briefing about that.” And what it really means is that you and anyone else that doesn’t have security clearance can’t be in that discussion. And so, what I saw over the course of this review group process is not necessarily a malfeasance of the individuals involved—I actually think that they are driven by a heartfelt desire to do good—but a process that is so completely skewed that the outcome itself is almost preordained. I do not see how, at the outset, they’d set up a process that would allow for a truly independent analysis, much less a walk back of a lot of the surveillance that’s happening, or major, meaningful reforms that would cease and desist the kind of surveillance that we believe, and now a federal judge agrees, is unconstitutional.

AMY GOODMAN: I also wanted to ask you about Sunday’s CBS 60 Minutes report on the NSA. This is reporter John Miller interviewing NSA head, General Keith Alexander. The reporter, John Miller, is the former associate deputy director of national intelligence for analytic transformation and technology.

JOHN MILLER: There is a perception out there that the NSA is widely collecting the content of the phone calls of Americans. Is that true?

GEN. KEITH ALEXANDER: No, that’s not true. NSA can only target the communications of a U.S. person with a probable cause finding under specific court order. Today, we have less than 60 authorizations on specific persons to do that.

JOHN MILLER: The NSA, as we sit here right now, is listening to a universe of 50 or 60 people that would be considered U.S. persons?

GEN. KEITH ALEXANDER: Less than 60 people globally who are considered U.S. persons.

AMY GOODMAN: That’s General Keith Alexander being questioned by reporter John Miller, who used to work in the New York Police Department and then as associate deputy director of national intelligence. Your response, Sascha Meinrath, to this whole 60 Minutes report?

SASCHA MEINRATH: Sure. So, one, it’s important to remember Clapper and others have lied previously. You know, as I believe Clapper put it, he told the “least untruth” when he was before Congress and lied to Congress on this. What we’ve seen, though, is also this definitional nuancing. They are collecting huge amounts of information. Tens of millions of phone calls are monitored actively. What this really was, was an attempt to say, “But are you listening individually to specific phone calls?” And that, on an average basis, is probably a far smaller group. But regardless of that, what’s clear here is that what’s actually happening and the spin about what’s actually happening are quite discrepant. And so, what we’re seeing time and time again—and I believe 60 Minutes was absolutely involved in this; I think The Wall Street Journal and New York Times, in their sensationalistic pieces, where they said major reforms are coming, and then in the details you find out that is not the case—this is part of a widespread campaign to mislead the general public about what’s actually transpiring.

And the reason why the Snowden revelations are so important is because each and every time somebody says something that is verifiably false, we now have bits and pieces of information that can actually demonstrate that fact. I believe that what Clapper is saying and the definitional nuances that he’s using—you know, 60 people who are considered, you know, U.S. citizens, and different ways of sort of parsing this—make it perhaps technically approaching truth, but in the spirit of what’s actually been said, completely untrue. I think if we were to dive into what’s actually happening, we’d see it’s not 60 people that are being actively surveilled, but thousands or tens of thousands or even larger numbers of people that are under active surveillance. And that definitionally they’re saying, “Well, even though they’re American citizens, we have justified them as being 51 percent foreign or not located in the United States, and therefore they don’t count” in this list of 60 that he mentions, it’s very deceptive.

AMY GOODMAN: President Obama, finally, Sascha, is meeting today with the heads of the world’s largest technology companies, including Apple, Facebook, Google, Microsoft, Twitter, LinkedIn, Yahoo. What do you think has to happen?

SASCHA MEINRATH: Well, it is clear that the damage reputationally to the United States and to these companies, in particular, is astronomical, to be measured in the tens of billions of dollars economically—socially, it’ll be far worse than that. And I think many of these companies are now seriously concerned about the ongoing damage that these revelations, but in particular the NSA’s activities, have created for them. And so I think what we’re seeing now is a number of companies, of which that list that you mentioned is sort of the vanguard, who are saying, “This must cease and desist. We must have transparency about what’s happening. We must have a public debate about what is acceptable in terms of this balance between national security and individual rights. And we must re-establish the global trust in the U.S. as an ethical Internet steward and in these companies, in particular.” And I expect that they will push back fairly strongly on what’s been leaked thus far in terms of the incredibly marginal pivoting that the NSA review group is currently recommending.

AMY GOODMAN: Sascha Meinrath, I want to thank you for being with us, director of the New America Foundation’s Open Technology Institute, one of the expert witnesses who advised Obama’s NSA review group. And of course we’ll continue to follow this issue.

This is Democracy Now!,, The War and Peace Report. When we come back, why have the number of young people, millions of people, been put on drugs to deal with attention deficit disorder? Does it have something to do with the pharmaceutical companies’ powerful campaigns to push their drugs over the last decades? Stay with us.