Homeland Security Watch

News and analysis of critical issues in homeland security

August 15, 2013

A welcome Presidential invitation (but please proceed even if there are no RSVPs)

Filed under: Intelligence and Info-Sharing,Legal Issues,Privacy and Security,Terrorist Threats & Attacks — by Philip J. Palin on August 15, 2013

AUGUST 16 UPDATE: Today the Washington Post reports on several hundred incidents of the NSA failing to conform with current regulations and legal boundaries for domestic surveillance.  This is where strong action by the executive — as outlined below — is most needed and can be most effective.

ORIGINAL POST:

Friday the President used the White House press room to announce and take a few questions on proposals to better balance civil liberties with digital surveillance.

Monday the Wall Street Journal editorialized that these proposals constitute a “retreat on his core powers as Commander in Chief.”  If I understand the editorial correctly, the WSJ perceives the President has sovereign authority under Article II, Section 2 to spy on us as much as he perceives the nation’s security might require.  Judicial oversight as currently provided by the Foreign Intelligence Surveillance Act is, in their view, unconstitutional.  Any due process is, it would seem, collaboration with our enemies.

On the left hand: Writing in The Atlantic, Conor Friedersdorf conducts an eviscerating exegesis of the rather brief — even bland — Presidential statement and concludes, “Obama is still lying, obfuscating, and misleading the American people. In doing so, he is preventing representative democracy from functioning as well as it might.”   He perceives a President corrupted by power and given over to condescension, setting the stage for our liberties to be lost forever.

There are of course judgments farther to the right and left of these still recognizably reasoned opinions.  But rather quickly “right” and “left” are lost to something closer to Freudian obsessions or the deepest mysteries of Jung’s collective unconscious.  Obama becomes a token or talisman or target of spiritual warfare and whatever he says is treated like a just-discovered manuscript in a Dan Brown novel.

My take is more prosaic.  The President — like all of us — is a creature of his prior experiences.  Among these are 1) a black man with insider knowledge of white America, 2) community organizer, and 3) lawyer.

If the first prior is having any influence here, it is expressed in the President’s perpetual pragmatism.  He intends to “get ahead” (what this means specifically depends on context).  To do so he needs to be realistic about the impediments or threats he will encounter.  He is predisposed to action that mitigates or obviates knowable problems. The surveillance programs (and the drone program and much more) inherited from his predecessor are adapted, expanded, and subjected to more detailed processes.

As a community organizer he is sensitive to matching his interventions to the values, aspirations, capabilities, and readiness of those he is trying to organize.  He can facilitate, provoke, propose… but it is up to the community to choose and sustain (or not).  Fundamental issues can be teed up, but it is the community’s role  – not his — to decide.  Notice how often, including in this instance, he unveils a process that tends to turn the initiative over to others.  He will advocate for certain principles or objectives, but if and how these are adopted is really up to others.

As a lawyer President Obama is inclined to procedural solutions: a task force, a privacy advocate, checklists, reviews, appeals…  Justice Frankfurter once wrote, “The safeguards of due process of law and the equal protection of the laws summarize the history of freedom of English-speaking peoples running back to Magna Carta and reflected in the constitutional development of our people. The history of American freedom is, in no small measure, the history of procedure.”  Whether or not the President knows the quote, he regularly demonstrates his concurrent view.

As a white man I have not needed to be quite so pro-active regarding threats and impediments.  My approach to management and leadership is similar to that of a community organizer. The successes tend, I am proud to say, to be substantive and long-lasting.  But failure is much, much more common.   I am personally impatient with procedure, but as a matter of human history I agree with Frankfurter (and the President) on its important role.

There are tangible threats to the United States which surveillance can help prevent and mitigate.  There is a profound threat to our liberty that emerges from government surveillance, especially in this digitally networked era.  Procedures are, probably, the most important part of any large bureaucracy’s effort to mitigate abuse of this unprecedented surveillance capability.

In a different time or place I might, despite all my failures, still advocate for community-based engagement with these treacherous issues.  Unfortunately, in this time and place if our civil liberties are to be reasonably preserved in face of these extraordinary technical means, strong and specific Presidential action will be needed.  Legislation would be better, but I don’t think it will happen.  Community consensus would be even better, but on this issue nothing even close to consensus is possible any time soon.

It is problematic. It is paradoxical.  But a community’s strength sometimes depends on individuals to sacrifice legitimate power in order advance what is best for the community.  On Monday the Wall Street Journal editorial board complained, “Mr. Obama invited Congress to tie him and future presidents down with new oversight and limits on a surveillance program…”  It is right to extend the invitation.  It will be necessary to do even more.

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6 Comments »

Comment by Christopher Tingus

August 15, 2013 @ 12:02 pm

It is interesting how this WH chooses to stand at the podium and talk about a Latino and Black and a decision made by six jurors in a court of law or to intervene on a 911 call and appropriate response to professor pal’s house in Cambridge and to so willingly engage the WH in a local police response and so on and so forth, but not an utter of response from the WH or the Black community when seeing a white kid getting hammered by three Black kids on a school bus – personally, I am sick of the divisiveness promoted by the Black Civil Rights folks and while Oprah may have been turned away from buying a $40k pocketbook, Oprah started out like many of us with nothing and if one must reference the color of skin, then so be it and today she as a Black woman overcame whatever obstacles and is worth some three billion dollars and her color of skin did not prevent her from being the wealthiest woman in America! Listen, whether Greek, Italian, Irish, whatever, every culture has had to endure the bias and pick itself up and get a Life! It is not the responsibility of the community, but the responsibility of the individual Blessed to live in America and pursue aspirations….

That said, I read your interpretation of Barry Obama and first, he has broken the laws of the US for he continues to dismiss the Constitution whenever he feels so compelled and he weakens us, our nation in every way as he is far too perverse, far too biased in every demeanor….portending to Black minority that they are better off “enslaved” by an ever burdensome government which in fact does include increased surveillance whether we like it or not for just a minute ago, a loud blast at a Hezbollah stronghold has been reported, death in the streets of beautiful Cairo and the good people of Egypt and the further erosion of human dignity and more oppression among the flock will become apparent as a weakened America as witnessed at the “Benghazi Massacre” leaving our own behind will create more and more instability throughout the Middle East, more conflagration and calamity and it will be necessary that NSA and other surveillance measures are taken to safeguard us as far too many seek our demise and now as a result of this administration’s continued failings and just blatant incompetencies and blatant lie led by both Hillary and Barry and carried our by the AG as well, let me say this once again, we folks are in great peril and as long as we step up to the plate if we see fellow citizen abused as we have seen by the IRS, then increased surveillance is prerequisite to a world which faces much calamity from here on to the eventual War which again Germany will play its hand in as the Middle East peace negotiator filling the void of a weakened America and a Germany who will hoodwink everyone at the table!

Comment by Christopher Tingus

August 15, 2013 @ 12:08 pm

Another perspective:

https://mail.google.com/mail/u/0/?ui=2&shva=1#inbox/14082d9864b5aaa6

Comment by JCOMISKEY

August 16, 2013 @ 5:42 am

Domestic Intelligence writ large & Stop Question Frisk (SQF)

The challenge of domestic intelligence and Stop Question, Frisk are one. See:

http://www.rand.org/pubs/monographs/MG804.html and
And http://www.nyclu.org/issues/racial-justice/stop-and-frisk-practices and http://www.nypost.com/p/news/opinion/opedcolumnists/stop_frisk_why_the_city_must_appeal_gD0QXw9ZjF6A5xt4HRnfwO )

The intent of both is national security/HLS/public safety within the constraints of the Constitution (USG and State) and particularly the social contract that IMHO is predicated on reasonableness.
Ultimately, are government actions reasonable under the current circumstances?

See http://dictionary.reference.com/browse/reasonable+?s=t and http://www.merriam-webster.com/dictionary/reasonable and http://en.wikipedia.org/wiki/Reasonable_person

It would have been unreasonable to ask the Supreme Allied Commander to storm Normandy with a little less shooting.

We expect our President and the Police to do what is reasonable to protect us. We delude ourselves when we opine that we should do so with a little less shooting.

The President sometimes does objectionable things because bad people will do things like weaponize airplanes and crash them into buildings or interrupt a marathon with wanton bombing.

The police sometimes do objectionable things because bad people carry weapons and hurt and kill people with them. If the President and the police do less objectionable things more planes will be weaponized and more marathons will be bombed and more bad people will carry weapons and hurt and kill more people.

Which do you object to more?

Comment by Philip J. Palin

August 16, 2013 @ 9:05 am

John:

I agree there are parallels between NSA surveillance and Stop-and-Frisk. There are certainly some — a distinct minority, I think — who find such actions innately objectionable in every context. What I think has more recently undermined and now threatens each prevention program is the perception of persistent abuse of each program’s internal disciplines and a growing concern that senior elected and appointed officials are in denial regarding a pattern of abuse.

(I don’t know if the pattern of abuse is real, but I am sure the perception of the pattern is real.)

Most expect some bad apples. Most are forgiving of occasional mistakes. But when the Guardians seem to regularly behave contrary to their own internal policies and regulations, it is reasonable, even wise, for other elements of society to state their concerns, seek to ensure the Guardians are self-correcting, and perhaps inevitably impose some new constraints to make the point.

Especially with a very long struggle without front lines, there is a need to be prudent and serious regarding the laws-of-war and — particularly in the domestic context — to enforce the laws-of-war.

But to your last question: I think where you and I may disagree is the trade-off between human life and abstract principle. I actually object more to the evil we do ourselves in seeking security than the evil done us by our enemies in exploiting our freedom. I will also admit to being envious of your much more grounded, measurable value-set. Can you find some sympathy for my effort to avoid either-or? I don’t know what Egypt, Syria, Iraq, and Nigeria may yet spawn. But given our current adversaries, I think we can still balance security with liberty.

Comment by JCOMISKEY

August 17, 2013 @ 6:30 am

Phil,

I sense that we are more in agreement than do you.

I do, however, accept “my grounding.” My grounding was predicated in operational imperatives. That that was done in the immediacy and near-immediacy. All the while I was aware that my actions and the actions of those I served with might be assessed post mortem.

I do not negate the efficacy of post mortem evaluation and recommendations for better future practices. HLS wicked problems are best managed knowing that 100% resolution will not be a reality.

My sympathies, prayers, and charity lie with the oppressed.

Comment by William R. Cumming

August 27, 2013 @ 8:14 am

The stop and frisk NYPD effort is now on hold pending appeal. But several Mayoral candidates have stated they will review that effort closely.

Thus the NY Mayoralty race may have important national implications.

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