[Infowarrior] - Debate on Secret Data Looks Unlikely, Partly Due to Secrecy

[Richard Forno]

June 10, 2013

Debate on Secret Data Looks Unlikely, Partly Due to Secrecy

By SCOTT SHANE and JONATHAN WEISMAN

http://www.nytimes.com/2013/06/11/us/politics/debate-on-secret-data-looks-unlikely-partly-due-to-secrecy.html?hp&pagewanted=print

WASHINGTON — Edward J. Snowden said he had leaked secret documents about National Security Agency surveillance to spark a public debate about civil liberties. President Obama, while deploring the leak, endorsed the same goal of a vigorous public discussion of the “trade-offs” between national security and personal privacy. “I think it’s healthy for our democracy, “ he said on Friday of the prospect of re-examining surveillance policy.

But the legal and political obstacles to such a debate, whether in Congress or more broadly, are formidable. They only begin with the facts that the programs at issue are highly classified and that Mr. Snowden is now a hunted man, potentially facing a prison sentence for disclosing the very secrets that started the discussion that Mr. Obama welcomed.

On Monday, the White House spokesman, Jay Carney, was pressed about just how the surveillance dialogue the president invited might take place.

Asked whether Mr. Obama would himself lead the debate or push for new legislation, Mr. Carney demurred. “I don’t have anything to preview,” he said, adding that the president’s major national security speech May 23, before the N.S.A. disclosures, showed “his interest in having the debate and the legitimacy of asking probing questions about these matters.”

Steven Aftergood, who runs the Project on Government Secrecy at the Federation of American Scientists in Washington, said: “If President Obama really welcomed a debate, there are all kinds of things he could do in terms of declassification and disclosure to foster it. But he’s not doing any of them.”

Nor is it clear that political pressure from either Congress or the public will be sufficient to prompt the administration to open the door wider on government surveillance.

Congressional leaders of both parties have so far expressed support for the newly disclosed initiatives, and the legislation governing such surveillance was renewed for five years at the end of 2012.

Representative Jim Langevin, a Rhode Island Democrat on the Intelligence Committee, said on Monday that among those in Congress who are most informed, the consensus was strong and bipartisan. “Those who have been fully briefed are comfortable with the capabilities used, the way they have been used and the due diligence exercised in making sure the agency responsible for carrying out and using the tools has been doing so within confines of the law,” he said. “There is nothing nefarious going on here.”

Lawmakers also have political incentives to endorse the programs many have voted for previously.

“The Democrats want to support Obama, and the Republicans supported FISA expansion,” said Peter Swire, an expert on privacy at Ohio State University, referring to the Foreign Intelligence Surveillance Act. “Both parties face internal tensions on this issue.”

So far, there is no groundswell of public anger to shift Congressional views. In a Washington Post-Pew Research Center poll conducted after the N.S.A. revelations, 56 percent of those polled said it was acceptable for the agency to get secret court orders to track the phone calls of millions of Americans; 41 percent said it was unacceptable.

The paradox produced by the N.S.A. disclosures — the administration beginning a criminal investigation of the man who prompted the discussion Mr. Obama called useful — is only the latest of his presidency, as he has struggled to manage a sprawling security bureaucracy that encompasses drone strikes, cyberattacks, sweeping surveillance and a ballooning amount of classified information.

Despite a stated devotion to government transparency, he waited for years to speak publicly about drones and has yet to say a single word in public about the United States’ offensive use of cyberweapons. His administration, meanwhile, has set a record in prosecuting leakers.

“The U.S. is pushing to make sure that cyberprograms comply with international law and international standards,” said James A. Lewis, a cybersecurity expert at the Center for Strategic and International Studies. “But it won’t say what ours are.”

Mr. Lewis said the discussion of cyberweapons was “overclassified” in part because of the central role of the N.S.A., which old agency jokes say means No Such Agency or Never Say Anything. “The N.S.A. classifies its lunch menu,” he said.

If there were to be a major rethinking of surveillance rules, it would almost certainly have to start with Congress. But complaints about the N.S.A. programs have been largely limited to lawmakers from the Democrats’ liberal wing and the Republicans’ libertarian wing, some of whom have joined Congress since the focus on antiterrorism has decreased. Representatives Justin Amash, Republican of Michigan, and John Conyers Jr. of Michigan, the ranking Democrat on the House Judiciary Committee, are completing legislation that would make it tougher for the government to scoop up phone records and make public many of the opinions of the Foreign Intelligence Surveillance Court.

Republican and Democratic leaders in Congress and the leaders of the intelligence committees, however, remain strongly supportive of the N.S.A. programs, marshaling national security arguments to trump privacy concerns.

“I flew over the World Trade Center going to Senator Lautenberg’s funeral,” Senator Dianne Feinstein of California, the chairwoman of the Senate Intelligence Committee, said Sunday on ABC’s “This Week,” referring to Frank R. Lautenberg of New Jersey. “And I thought of those bodies jumping out of that building hitting the canopy. Part of our obligation is keeping America safe.”

Conceivably some views about the scope and propriety of the programs could change after closed briefings on the N.S.A. programs planned for House members on Tuesday and senators on Thursday. But even when a member of Congress does not like a secret program, classification rules make it tough to protest. Representative Jan Schakowsky, Democrat of Illinois and a critic of government surveillance, received a private briefing on the N.S.A.’s Internet program last year but is constrained in talking about it, said a spokeswoman, Sabrina Singh.

“She welcomes the public debate, but it’s a tough line for her to talk about because she knows more than the public,” Ms. Singh said. “It’s something she is wrestling with.”

The public, so far, continues to show a high tolerance for what the government claims is necessary to prevent terrorism. Polls also reflect a certain resignation about the erosion of privacy at a time of targeted online advertising, location-tracking cellphones and intrusive government programs.

In an Allstate/National Journal poll a week before the N.S.A. revelations, for instance, 85 percent of those polled said they thought it somewhat or very likely that businesses and the government could access citizens’ phone calls, e-mails and Internet use without their consent.

David E. Sanger contributed reporting from Washington, Somini Sengupta from San Francisco, and Megan Thee-Brenan from New York.



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