Independent Panel: NSA Spying Illegal, Ineffectual; WashPost Story Emphasizes Obama Retort

January 24th, 2014 5:48 PM

On Friday, January 17, President Obama unveiled the rough outlines of his plan to modify but maintain the National Security Administration's ability to collect telephony metadata from American civilians. For its part on the front page the following morning, The Washington Post exulted that "Obama moves to rein in surveillance" as he "[o]rders limits on phone data." Another front-pager sought to flesh out "A candidate's promises vs. a president's duty," essentially justifying the president's departure from his pre-presidential rhetoric about civil liberties. [see screen capture below page break]

Fast forward to January 23 and scathing report by the congressionally-sanctioned Privacy and Civil Liberties Oversight Board, wherein the PCLOB attacked as unconstitutional, illegal, and ineffectual the spying agencies metadata collection program. Post editors opted to place Ellen Nakashima's story on the matter on page A2, pitched in such a way as to practically beg the reader not to dive in. "Obama disagrees with report on NSA," noted the headline, with the subhead adding, "Phone-collection program is legal, administration says." Well, there we have it. Nothing to see here. By contrast, Post editors opted to rake the Bush/Cheney administration over the coals with a front-pager examining "A CIA prison''s secret history in Poland." Staff writer Adam Goldman looked at a CIA "black site" in Poland that was, according to the subheader, "shrouded in mystery, though it cast a long shadow":

On a cold day in early 2003, two senior CIA officers arrived at the U.S. Embassy in Warsaw to pick up a pair of large cardboard boxes. Inside were bundles of cash totaling $15 million that had been flown from Germany via diplomatic pouch.

The men put the boxes in a van and weaved through the Polish capital until coming to the headquarters of Polish intelligence. They were met by Col. ­Andrzej Derlatka, deputy chief of the intelligence service, and two of his associates.

The Americans and Poles then sealed an agreement that over the previous weeks had allowed the CIA the use of a secret prison — a remote villa in the Polish lake district — to interrogate al-Qaeda suspects. The Polish intelligence service received the money, and the CIA had a solid location for its newest covert operation, according to former agency officials who spoke on the condition of anonymity to discuss the interrogation program, including previously unreported details about the creation of the CIA’s “black sites,” or secret prisons.

The CIA prison in Poland was arguably the most important of all the black sites created by the agency after the Sept. 11, 2001, attacks. It was the first of a trio in Europe that housed the initial wave of accused Sept. 11 conspirators, and it was where Khalid Sheik Mohammed, the self-declared mastermind of the attacks, was waterboarded 183 times after his capture.

Much about the creation and operation of the CIA’s prison at a base in one of the young democracies of Central Europe remains cloaked in mystery, matters that the U.S. government has classified as state secrets. But what happened in Poland more than a decade ago continues to reverberate, and the bitter debate about the CIA’s interrogation program is about to be revisited.


Agency executives tapped Mike Sealy, a senior intelligence officer, to run the Polish black site, according to former CIA officials. He was called a “program manager” and was briefed on an escalating series of “enhanced interrogation techniques” that were formulated at the CIA and approved by Justice Department lawyers. These included slapping, sleep deprivation and waterboarding, a technique that involved pouring water over the shrouded face of the detainee and creating the sensation of drowning.

You get where this is going. Now, obviously, Goldman's item is probably worthy of front-page placement, but it's quite telling that the Post would focus on alleged abuses of human rights on non-U.S. citizens overseas in CIA black sites in the Bush administration -- out of office now for five years -- but dismiss real concerns over the present administration's about violations of American citizens' privacy here at home.

And again, the Post's coverage of yesterday's PCLOB report (available online here) was to come right out of the gate noting the White House's strong objections. Notice how staff writer Ellen Nakashima front-loaded her 15-paragraph story with the White House's rebuttal, before even getting to the substance of the PCLOB's findings (emphasis mine):

President Obama disagrees with an independent watchdog group’s conclusion that the National Security Agency’s once-secret program that collects billions of Americans’ phone records is illegal, the White House said Thursday.

In a major speech outlining his agenda to reform NSA surveillance, Obama last week pressed for a plan to move the phone records out of the government’s control. But, unlike the watchdog group, he did not call for an end to the program, known for the statute under which the government claims authority to run it: Section 215 of the USA Patriot Act.

“On the issue of [Section] 215, we simply disagree with the board’s analysis on the legality of the program,” White House spokesman Jay Carney said.

He cited two federal court rulings that upheld the program’s constitutionality, as well as the findings of at least 15 judges on the Foreign Intelligence Surveillance Court over the past seven years that the program could continue under the statute.

“The administration believes that the program is lawful,” he said.

The program’s fate is unclear. Congress is debating whether to end it, federal courts are weighing its legality, and administration officials are searching for a way to salvage the NSA’s ability to sift the phone records for terrorist connections without maintaining a massive database.

The 238-page report released Thursday by the Privacy and Civil Liberties Oversight Board — arguably the most extensive review of the Section 215 collection’s legality and effectiveness — highlighted other issues involving the program, including a little-noticed feature that lets analysts search subsets of phone records without strict privacy safeguards.

That feature amounts to a “back-door search loophole” for Section 215, said Gregory Nojeim, senior counsel for the Center for Democracy & Technology.

The NSA collects call detail records from most major phone companies. It gathers numbers dialed, call times and lengths, but not actual conversations. Analysts query the database using numbers that are reasonably suspected to belong to terrorists, applying a technique called contact-chaining. All the numbers that pop up as contacts, including those two or three degrees removed from the initial number, are put into a “corporate store.”

Far from living up to its claim to be "an independent newspaper," the Washington Post all too often stacks the deck to slam conservatives and Republicans while massaging the news to favor President Obama and other liberal Democrats.