"Late Friday" Dec. 20, 2013, Obama's attorneys were in court trying to get a judge to "dismiss the [surveillance] matter without ruling on whether the programs violated the First or Fourth Amendment." On same day, Friday, Dec. 20, NY Times Editorial Board admits it's stunned by Mr Obama's actions on surveillance matters. In article below the Times waits til the 6th paragraph to report that Friday Court appearance was about Obama effort to add new layer of secrecy by asking a judge to withhold a ruling. In paragraph 9 the Times reports Mr. Obama argues the opposite of his own advisory panel:
12/21/13, "White House Tries to Prevent Judge From Ruling on Surveillance Efforts," NY Times, Charlie Savage and David E. Sanger
"The Obama administration moved late Friday to prevent a federal judge in California from ruling on the constitutionality of warrantless surveillance programs authorized during the Bush administration, telling a court that recent disclosures about National Security Agency spying were not enough to undermine its claim that litigating the case
would jeopardize state secrets.
In a set of filings
in the two long-running cases in the Northern District of California,
the government acknowledged for the first time that the N.S.A. started
systematically collecting data about Americans’ emails and phone calls
in 2001, alongside its program of wiretapping certain calls without
warrants. The government had long argued that disclosure of these and
other secrets would put the country at risk if they came out in court.
But the government said that despite recent leaks by Edward J. Snowden,
the former N.S.A. contractor, that made public a fuller scope of the
surveillance and data collection programs put in place after the Sept.
11 attacks, sensitive secrets remained at risk in any courtroom
discussion of their details—like whether the plaintiffs were targets
of intelligence collection or whether particular telecommunications
providers like AT&T and Verizon had helped the agency.
“Disclosure of this still-classified information regarding the scope and
operational details of N.S.A. intelligence activities implicated by
plaintiffs’ allegations could be expected to cause extremely grave
damage to the national security of the United States,” wrote the
director of national intelligence, James R. Clapper Jr.
So, he said, he was continuing to assert the state secrets privilege,
which allows the government to seek to block information from being
used in court even if that means the case must be dismissed.
The Justice
Department wants the judge to dismiss the matter without ruling on
whether the programs violated the First or Fourth Amendment.
The filings also included similar declarations from earlier stages of
the California litigation, which were classified at the time and shown
only to the court but were declassified on Friday. The judge, Jeffrey S.
White of the Northern District of California, had ordered the
government to evaluate how the disclosures since Mr. Snowden’s leaks had
affected its earlier invocations of the state secrets privilege.
The plaintiffs have until late January to file a response. Cindy Cohn, the legal director for the Electronic Frontier Foundation,
which is leading one of the cases, called the government’s assertion
“very troubling.” She said that despite the Snowden revelations, it was
still essentially saying, “We can’t say whether the American people have
been spied on by their government.”
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.
“Disclosing or confirming further details about these activities could
seriously undermine an important tool — metadata collection and analysis
— for tracking possible terrorist plots,” he wrote, and could reveal
methodology, thus “helping foreign adversaries evade detection.”
Still, Mr. Clapper’s description of the program as “an important tool”
for tracking possible plots was a downgrade in rhetorical urgency. In
earlier, now-declassified court filings, he and other officials had
portrayed it as “an essential tool.”
Mr. Obama, in a news conference on Friday, strongly suggested that he
was looking for a way to split the difference between these two views.
He stopped short of endorsing the advisory group’s recommendation that
the data should be held by telecommunications companies or a private
consortium that has yet to be created.
“Just because we can do something doesn’t mean we necessarily should,” he said, repeating a line he has used often.
The newly declassified affidavits discuss a now-familiar list of threats
to the United States coming from Al Qaeda and groups that share some of
its ideology, including a plot in 2006 to blow up airliners over the Atlantic Ocean and the attempted car bombing in Times Square
in 2010. But one of the documents makes reference to a renewed effort
by Al Qaeda to obtain a nuclear weapon after 2005. It did not cite
evidence.
The California litigation over warrantless surveillance represents the remnants of a wave of lawsuits filed in 2006 after The New York Times revealed
that the Bush administration had authorized a program of wiretapping
without warrants. Most of the initial suits were filed against
telecommunications companies and were dismissed after Congress passed a
law retroactively immunizing them for participating in the programs.
One of the lawsuits had also named the N.S.A. as a defendant, and in
2008 the Electronic Frontier Foundation refiled a case against the
N.S.A. and a series of government officials, challenging the range of
domestic surveillance and data collection activities. Several of the
claims in those cases have been dismissed, but the First and Fourth
Amendment ones remain.
The new filings came five days after another judge, Richard J. Leon of
Federal District Court in the District of Columbia, ruled — in a case
filed shortly after Mr. Snowden’s first reported disclosures — that the
call-logging program in its current form probably violated the Fourth
Amendment and called it “almost Orwellian.” The government is expected
to appeal that decision."
"A version of this article appears in print on December 22, 2013, on page A28 of the New York edition with the headline: White House Tries to Prevent Judge From Ruling on Surveillance Efforts."
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Comment: Mr. Obama is free to do as he pleases, no one from either party
complains. He's had both the executive branch and the Senate for 5 years, has Republican Senate votes when he needs them, had all 3 branches from 2009-2011. The NY Times knows it can gin up the troops by saying something was "authorized during the Bush administration" as it does in the first sentence of this article. Assuming the troops made it to page A28.
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