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Today’s Headlines and Commentary

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Friday, June 7, 2013 at 2:56 PM

Happy(?) Friday. Buckle your seat belts, folks, because today’s edition is a force to be reckoned with.

President Obama spent about 15 minutes earlier today speaking about the FISA Court order leak and disclosure of the NSA’s data mining efforts. He defended those programs, and also reiterated that the NSA is not listening to telephone calls (under those particular programs). Here are a New York Times foursome (Charlie Savage, Edward Wyatt, Peter Baker, and Michael Shear) discussing his remarks, and Politico’s Josh Gerstein and Jennifer Epstein as well. There’s also this video from C-SPAN; President Obama’s remarks start around 12:10.

Meanwhile, FISA Court Chief Judge Reggie Walton went on the record with the Guardian:

The perception that the court is a rubber stamp is absolutely false. . . There is a rigorous review process of applications submitted by the executive branch, spearheaded initially by five judicial branch lawyers who are national security experts and then by the judges, to ensure that the court’s authorizations comport with what the applicable statutes authorize.

Be sure to read Stewart Baker’s post at Volokh Conspiracy in response to DNI Clapper’s statement, as well as Orin Kerr’s post at the same blog focusing on the legal standard Clapper invoked in his statement—the Terry v. Ohio standard for temporary stops and questioning under the Fourth Amendment.

And also comes news that Britain’s GCHG—essentially its NSA—makes use of information derived from PRISM, the secret surveillance program which harvests technology company data, and which was revealed yesterday in press accounts. The scoop comes from the Washington Post, which got it from the Guardian.

The New York Times story about PRISM has been updated, and here’s the latest The Hill story by Carlo Munoz about the goings-on. Peter Baker has this Times article reviewing the administration’s and certain Congressional leaders’ embrace of these controversial counterterrorism tools.  Here’s The Economist on the discoveries, too.

Internet companies deny that they provided direct access to the government, according to Brendan Sasso’s report in The Hill. The we’re-not-giving-info-to-the-government list include Apple, Google, Facebook, and Yahoo!—all of which, in one way or another, disclaim knowledge of PRISM.

Carrie Johnson of NPR obtained a 2011 letter from the Department of Justice to Senators Ron Wyden and Mark Udall, explaining how it collects information using the PATRIOT Act’s Section 215. It said, in part:

Against this backdrop, we do not believe the Executive Branch is operating pursuant to “secret law” or “secret opinions of the Department of Justice.” Rather, the Intelligence Community is conducting court-authorized intelligence activities pursuant to a public statute, with the knowledge and oversight of Congress and the Intelligence Committees of both Houses. There is also extensive oversight by the Executive Branch, including the Department of Justice and relevant agency General Counsels and Inspectors General, as well as annual and semi-annual reports to Congress as required by law.

During his March testimony before the Senate Intelligence Community, DNI James Clapper responded “No” to Senator Wyden’s question regarding the NSA’s data collection efforts on “millions or hundreds of millions of Americans.” Carlos Munoz reminds us of this exchange at The Hill, while Jonathan Weisman refers to last December’s largely uncontroversial re-up of the FISA Amendments, save for Senator Ron Wyden’s impassioned remarks on the floor.

Senator Al Franken wants FISA court opinions to be declassified as often as possible. Here’s his statement in Politics USA.

Congressman Mike Rogers said yesterday that the NSA’s phone records collection has thwarted a terrorist attack in the “last few years.” Brendan Sasso has that quotation in The Hill.

A different tune came from Congressman Jim Sensenbrenner, the author of the PATRIOT Act.  He expressed his concern about the FISA Court order, saying that “I am extremely troubled by the FBI’s interpretation of this legislation.” Justin Sink reports in The Hill.

Not every Washington elite is angered by the news of data mining.  Karl Rove said to Greta Van Susteren on her show yesterday that such efforts are essential to the war on terror:

To identify patterns of phone calls between individuals here and individuals abroad, and then you identify the patterns of phone calls inside this country … that allows the intelligence agencies to identify connections between people abroad and people at home. And as we saw in the Boston Marathon bombing incident, home-grown terrorists or terrorists who are sleeper cells inside the United States are a threat. . .

The Wall Street Journal’s editorial page supports the NSA’s data mining effort. After it discusses the politicized “overreaction” to the leaks and disclosures, it concludes:

Amid many real abuses of power, the political temptation will be to tie data-mining into a narrative about a government out of control. Such opportunism can only weaken our counterterror defenses and endanger the country.

Washington Post editorial, meanwhile, says the government needs to go public about its reasoning for collecting phone record data.

Eugene Robinson wonders in his Washington Post column whether the Verizon FISA order signals an end to privacy.

Brendan Sasso of The Hill tells us that during his days as senator, President Obama co-sponsored a bill that would have increased the burden of proof on the government in order to acquire a foreign person’s phone records. And Senator Rand Paul authored a Guardian op-ed on this very issue, saying that “Senator Obama was right.”

This Reuters story demonstrates constructive results from public-private cooperation: Microsoft and Europol worked together to defeat a computer virus that is believed to have helped steal over $500M from bank accounts in the last year and a half. Microsoft helped the U.S. government in this effort, collecting forensic evidence from internet providers located in the U.S.

The Times’s Noam Cohen and Leslie Kaufman authored this piece on the journalist who published the FISA Court order: Glenn Greenwald.

What do scientists and engineers have to say about data mining? Popular Mechanics author Glenn Derene explains NSA reasoning with two words: big data. He has more information from Dean Abbott of Abbott Analytics about “predictive analysis,” the process by which data miners acquire intelligence from large data sets:

“You start with an anchor—say, Person A—which is a place to start your network from,” Abbott says. “You see who this Person A has contacted on multiple occasions or at a regular frequency, and that can trigger a connection to another person that is unlikely to be a random connection.” But to get any useful intel this way, Abbott says, you need the whole data set.

Tom Simonite of Technology Review explains what data miners can do with Verizon’s records:

If the NSA has the phone number of a person of interest, it could use Verizon’s dataset to call up when and where they have been active on their phone and who they called. However, although vast, the data store can’t alone empower a kind of universal search engine able to call up the movements and lives of any person by name. However, phone network data could be a building block of that if the NSA has the right other sources to match up and correlate with what Verizon or other phone companies provide.

The leaks will likely overshadow President Obama’s important meeting with his Chinese counterpart about cyberattacks, says Michael Shear in the Times. (What, I ask, won’t be overshadowed by this story?) Brookings scholar Ken Lieberthal is quoted in this BBC News story about the upcoming discussions. He said that “we have a good idea of what they are stealing and the quantity is enormous.”

NBC News apparently has its hands on two sets of classified documents that described drones strikes over a 14-month period beginning in September 2010. You can watch Richard Engel’s report here, which disclosed that the government doesn’t always know exactly who it targets when launching drone strikes. Another NBC News story focused on that uncertainty, as did a reporter at Salon.

Speaking of drones, AG Eric Holder testified before Congress about drone strikes during a hearing nominally focused on his department’s  FY14 budget request. The Attorney General denied that drone strikes are favored because they prevent GTMO’s detainee population from growing: “It is not a function of not trying to take people to Guantánamo.” Here’s the AP on his remarks.

In MIT Technology Review, Fred Kaplan authored this lengthy history of the drone and its proliferation in in military and CIA operations.

Pakistan’s new president Nawaz Sharif called for the end of U.S. drone strikes within his country’s borders, reported Declan Walsh and Salmon Masood in the Times.

Secrecy News notes that the FBI finally disclosed Fox News journalist James Rosen as the reporter to whom Stephen Kim leaked classified information.

During a Senate Hearing, AG Holder said that he won’t prosecute journalists for publishing stories based on leaked secrets.  Instead he will focus on the government officials facilitating those leaks. The BBC has more.

Former FCC Chair Julius Genachowski and Jonathan Zittrain authored this MIT Technology Review piece describing telecommunications failures in the immediate aftermath of the Boston Bombing. The authors propose prevention methods meant to reduce the chances of failures during the next such emergency.

The bipartisan duo of Congressmen Mike Rogers and Tim Ryan have introduced a new cybersecurity bill. According to this Businessweek story, under the bill, the President would compile a list of computer hackers working for foreign governments. Their names in turn would be added to the a Treasury Department sanctions roster.  Despite frequent collaboration with Rogers on other projects, the ranking member on the House Intelligence Committee, Dutch Ruppersberger, doesn’t support the proposal. Reuters also wrote about the new bill.

A British parliament committee has misgivings about Chinese telecommunications company Huawei potentially entering the British market. Ainsley Thompson at the Wall Street Journal discusses the committee’s report, and The Economist writes about it too.

American Banker discusses a new working group on cybersecurity, composed of banking industry regulators and announced yesterday by the Federal Financial Institutions Examination Council. Its charge is “to promote coordination across the federal and state banking regulatory agencies on critical infrastructure and cybersecurity issues.”

Andrea Peterson links to Paul’s post about the FTC/cybersecurity case involving Wyndham Hotels; she wrote about the case over at ThinkProgress.

Asked whether he thought President Obama’s stance on the war on terror had changed, former SecDef Donald Rumsfeld answered at an event last month in LA, “I can’t tell.” Here’s a video of his remarks, courtesy of Justin Sink at The Hill.

And here at Brookings yesterday, Senator John McCain expressed puzzlement over President Obama’s indecisive action in the Middle East, saying that he doesn’t think Obama “has ever been really comfortable with national security issues.” Jeremy Herb has his remarks over at The Hill, where Herb’s colleague Julian Pecquet writes about another part of McCain’s talk, in which he called for a more significant role for the U.S. military in training African troops to fight Islamist militants.

Families of the victims of 16 Afghan civilians killed by Army Sgt. Robert Bales are not pleased at all that he has avoided the death penalty. Nathan Hodge reports in the Journal on reactions to the news in Afghanistan.

The Post’s Peter Finn says the number of GTMO detainees being force fed is up to 41, although according to the JTF-GTMO spokesman, none are in life-threatening condition.

Michael Cohen wrote this piece in Foreign Policy on the implications of Susan Rice’s appointment as national security advisor, and Samantha Power’s nomination to serve as U.S. Ambassador to the United Nations. Rosa Brooks of Georgetown Law also wrote on the picks as well, at Foreign Policy.

And finally (yes, finally), courtesy of the Detroit Free Press comes this cartoon:

Obama Roosevelt Drone

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll and blog, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

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