Obama administration contradicts its new spying advisory committee in court

James ClapperDNI James Clapper, who has admitted lying to Congress about the NSA.

Charlie Savage and David Sanger have a new story in the Times tonight that perfectly illustrates the truth behind the spin when it comes to domestic spying by the NSA, and President Obama’s attempts to shield it from judicial review.

Some of this behavior is more laughable than it is upsetting, because it’s gotten so absurd:

Mr. Clapper’s unclassified affidavit to the court – he also filed a classified version, the documents state – contrasts sharply with the findings of President Obama’s advisory committee on signals intelligence, which said in a report made public on Wednesday that the collection of bulk telephone data was of little proven value.

The panel’s experts concluded that “there has been no instance in which N.S.A. could say with confidence that the outcome would have been different” in a terror investigation without the collection of the telephone data. “Moreover, now that the existence of the program has been disclosed publicly, we suspect that it is likely to be less useful still.”

Mr. Clapper, however, suggested that the program was one of many that needed to continue, and he discussed a litany of threats, mostly emanating from Al Qaeda and its affiliates, that he said made the program vital. He argued that revealing additional details, including whom it targets or how companies like AT&T and Verizon have given the N.S.A. access to its equipment and data, would be harmful.

It’s one thing to bullshit the public about the usefulness of controversial government programs, where officials can’t be questioned at length under oath and be forced to provide evidence of their claims. It’s quite another matter to bullshit a (real) federal court.

FISA may accept anything that the government has to say as if it’s the word of God — it was designed by Congress to be little more than a powerless rubber stamp — and Congress may not care that James Clapper lied to them under oath, but it’s doubtful that a real and actual federal court will be so kind.

The most dishonest and corrupt argument the Bush and Obama administration’s have made to prevent any court for deciding the constitutionality of these programs is to argue that plaintiffs can’t prove these programs even exist, and being forced to admit them existing or not would put the country in grave danger.

As Glenn Greenwald has written many times, accepting such a blanket argument without evidence as the courts have already done numerous times, essentially places intelligence agencies such as the NSA above the law. Any challenge to any domestic spying program can be (has been) swatted away with the mere claim of “national security”.

The one thing that could change all that were the documents released to news organizations by whistle blower Edward Snowden. With them, plaintiffs (ACLU, EFF, citizens, etc) can independently prove that these programs exist with or without the government’s help, and their public existence ends any supposed threat to national security because the information is already out there.

Yet that hasn’t stopped the Obama administration from continuing to play this game.

Forget Congress reforming the NSA through legislation, the best and most effective thing that could happen right now is that a judge rejects these excessive claims of state secrets so that we can have a court of law decide whether these programs are legal or not.

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