Wonkbook: These programs might well have been legal. That’s almost worse.

June 7, 2013

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(Photo by Patrick Semansky/AP)
(Photo by Patrick Semansky/AP)

"Rather than dismantling Mr. Bush’s approach to national security," Peter Baker writes in today's New York Times, "Mr. Obama has to some extent validated it and put it on a more sustainable footing."

The fog surrounding the United States's national-security apparatus has lifted a little over the last forty-eight hours. Reports from Glenn Greenwald in The Guardian and Barton Gellman and Laura Poitras in The Washington Post sketch the outlines of a surveillance program that is large, indiscriminate, and unaccountable that everything from Americans' phone records to the contents of their personal emails lie at the fingertips of federal officials -- officials, no less, whose powers have been granted in special courts that disclose neither their decisions nor their legal justifications.

Much remains unclear about these surveillance programs. We don't know, for instance, how the National Security Agency, the arm of the government that administers them, analyzes the torrent of data. We don't know what concrete information the agency has learned about terrorist activity through these programs. We don't know how much Congress has been told about these programs, though it seems they have known at least some details for quite a long time.

The administration's response is that the program is legal and is overseen by both Congress and the courts. They also gesture towards, but don't really identify, "numerous inaccuracies" in the reports.

If the reports of how these programs work are wrong then the reports are wrong. But if not, it's true that these programs might well be legal under existing law. They might well have been subject to congressional oversight. That's even scarier.

It speaks to a systemic acceptance of this kind of surveillance across the law and the Congress and the oversight courts. It means this is not the action of an overzealous NSA or even an overzealous administration but the consequences of a broad redefinition of the government's domestic surveillance powers -- one that has managed to stick across both the Bush and Obama administrations, and one that will thus be that much harder to uproot.

The administration protests that they have, over and again, brought powers the Bush administration exercised unilaterally into frameworks where they're overseen by courts and by Congress. That's the "more sustainable footing" Baker refers to. But that's only comforting if the courts and the Congress act as independent voices on these issues. If they simply rubberstamp any decision filed under "national security," then that can, in certain ways, be worse: It makes everyone involved confident that the new powers have passed constitutional muster and been validated by tough oversight even as the American people would be shocked at what's being done in their name.

Some senators, it's worth noting, were shocked by these programs, but they rendered mute by rules prohibiting them from discussing what they knew. Sens. Ron Wyden and Mark Udall have been trying to raise the alarm on these programs for years. They were hampered, however, by the fact that they couldn't say what these programs were. Jennifer Hoelzer, Wyden's former communications director, vividly describes how hard it was to raise the alarm. "Do you have any idea how frustrating it is to have your boss ask you to get reporters to write about something he can't tell you about?"

Wonkbook's Number of the Day: $3 billion. That's how much a new analysis from the Kaiser Family Foundation says the Affordable Care Act's rules on the so-called "medical loss ratio" saved consumers.

Wonkbook's Quotation of the Day: "They quite literally can watch your ideas form as you type," said the officer who disclosed the PRISM program of its capabilities.

Wonkbook's Graph of the Day: The flow of international data in the PRISM report.

Wonkbook's Top 5 Stories: 1) two NSA programs revealed; 2) IRS gets hearing; 3) House casts foreboding vote on immigration refom; 4) economy directionless ahead of jobs numbers; and 5) how smoothly can Obamacare launch?

1) Top story: Massive government surveillance programs have cover blown

NSA collecting phone records of Verizon customers. "The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America's largest telecoms providers, under a top secret court order issued in April. The order, a copy of which has been obtained by the Guardian, requires Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries. The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing." Glenn Greenwald in The Guardian.

U.S. mining data from 9 leading internet firms. "The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track one target or trace a whole network of associates, according to a top-secret document obtained by The Washington Post. The program, code-named PRISM, has not been made public until now." Barton Gellman and Laura Poitras in The Washington Post.

Primary source documents: Read the Foreign Intelligence Surveillance Court ruling here. Read the PRISM report hereThe Guardian, The Washington Post.

White House stands by surveillance programs. "White House spokesman Josh Earnest defended the administration’s program of collecting the telephone records of tens of millions of Verizon customers in the U.S., calling it a “critical tool.”...Asked whether President Obama is comfortable with the way the law is being interpreted in his administration, Earnest referred again to the legal oversight and said “this strict regime reflects the president’s desire to strike the right balance between protecting our national security and protecting constitutional rights and civil liberties.”" Juliet Eilperin in The Washington Post.

@petersuderman: The NSA now knows *exactly* how much Americans love cat videos.

...It's an embrace of once-rejected tools, really. "The disclosure of the government’s vast surveillance of American telephone records and foreigners’ e-mail and other Internet communications on Thursday served as a potent reminder that Mr. Obama continues to deploy many of the national security tools he inherited from his predecessor even as he seeks to turn the corner in the way the United States responds to terrorism...Rather than dismantling Mr. Bush’s approach to national security, Mr. Obama has to some extent validated it and put it on a more sustainable footing." Peter Baker in The New York Times.

...And that infuriates liberals. "[P]rogressives were among the administration's biggest critics on Thursday, joining Tea Party leaders like Sen. Rand Paul (R-Ky.) in blasting the administration...[U]nlike some of the other recent controversies, the NSA program runs the risk of pushing away some members of Obama’s political base, who have long perceived Obama as being a departure from President George W. Bush on the war on terror." Justin Sink in The Hill.

Explainer: Everything you need to know about the NSA phone-records scandalTimothy B. Lee in The Washington Post.

Sens. Wyden and Udall were warning us all along. "For years, Democratic Sens. Ron Wyden and Mark Udall have been lonely voices warning against massive government surveillance activities. On Wednesday, a report in the British newspaper The Guardian made their alarms look prescient...Wyden, Udall and a few civil libertarian colleagues are part of a small band of critics in a Congress still dominated by lawmakers willing to give the federal government enormous leeway nearly 12 years after the Sept. 11 attacks" Manu Raju and Burgess Everett in Politico.

@paulg: Didn't every hacker already take it for granted that the NSA had everything? Not that it's ok.

Sens. Feinstein and Chambliss defend NSA programs. "The top two leaders of the Senate Intelligence Committee said today that the widespread monitoring of phone records revealed by Wednesday’s Guardian report has been going on for years and that Congress is regularly briefed about it...Sens. Dianne Feinstein and Saxby Chambliss also defended the National Security Agency’s request to Verizon for all the metadata about phone calls made within the U.S. and from the U.S. to other countries." Tim Mak and Burgess Everett in Politico.

...As did Rep. Rogers, who said it stopped a terrorist attack. "Rep. Mike Rogers, the chairman of the House Intelligence Committee, said today that phone records obtained by the National Security Agency “thwarted” a domestic terrorism plot “in the last few years.” His committee is working to declassify information on the plot, he said." Bobby Cervantes in Politico.

Flashback: What Obama said about surveillance programs back in 2007Andrew Kaczynski in BuzzFeed.

How Congress unwittingly authorized PRISM in 2007. "In reality, the PAA [Protect America Act] represented a sweeping change to American surveillance law. Before conducting surveillance, the PAA only required executive branch officials to “certify” that there were “reasonable procedures” in place for ensuring that surveillance “concerns” persons located outside the United States and that the foreign intelligence is a “significant purpose” of the program. A single certification could cover a broad program intercepting the communications of numerous individuals. And there was no requirement for judicial review of individual surveillance targets within a “certified” program." Timothy B. Lee in The Washington Post.

Opinion roundup on surveillance programs:

WASHINGTON POST: Government has some explaining to do. "hy couldn’t Americans know about this process before now? The really sensitive information is not its existence — at that, ordinary Americans are probably more surprised than any terrorist is — but rather the intelligence the government uses to target individuals within the database." The Washington Post Editorial Board.

NEW YORK TIMES: Obama's dragnet. "The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it." The New York Times Editorial Board.

WALL STREET JOURNAL: Legal and necessary. "Well, another day, another Washington furor. This one is over a National Security Agency phone data monitoring program, but unlike the other White House scandals there seems to be little here that is scandalous...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." The Wall Street Journal Editorial Board.

@BuzzFeedAndrew: Would love to go back in time to 2004 & tell State Senator Obama as president the WSJ would defend him on NSA spying & NYT would attack him.

BLOOMBERG VIEW: Obama and Orwell. "If Obama wants on one hand to move the U.S. beyond an era of overreaction, and on the other to secure legitimacy for national security investigations, the government is going to have to trust its citizens a little more. We need to know what the grounds are for these continuing surveillance requests and how they could be so sweeping as to encompass millions of Verizon customers nationwide...[T]he benefit of the doubt afforded to the government is wearing thin. Are we living in a police state? We’d like to know." Bloomberg View Editorial Board.

@JimPethokoukis: Turns out there is no such thing as auto-correct. Just a spelling nerd at NSA doing his thing

FELDMAN: The secret law behind government snooping. "It's not only that the highly classified request was made to and approved by a highly classified court. But the legal interpretation of the 2001 Patriot Act that the court appears to have used was itself classified. In other words, there was no way for the public to know what the courts believed the law to mean. And that reality runs counter to the most basic principles of democracy and the rule of law." Noah Feldman in Bloomberg.

@normative: Well at least Twitter isn't part of IGNORE ALL MY PREVIOUS TWEETS. THE NSA IS YOUR FRIEND.

CILLIZZA: In privacy vs. security, security always wins. "[W]hy do majorities of the country express support for the gathering of phone calls, the use of drones and, to a lesser extent, the Patriot Act?...Because fear is a very powerful motivator when it comes to public opinion.  And because most Americans, while they value their privacy, tend to view themselves as people with little to hide." Chris Cillizza in The Washington Post.

Music recommendations interlude: Eric Hutchinson, "Watching You Watch Him."

Top op-eds

ROGOFF: Inflation is the lesser evil. "The world’s major central banks continue to express concern about inflationary spillover from their recession-fighting efforts. That is a mistake. Weighed against the political, social, and economic risks of continued slow growth after a once-in-a-century financial crisis, a sustained burst of moderate inflation is not something to worry about. On the contrary, in most regions, it should be embraced." Kenneth Rogoff in Project Syndicate.

KLEIN: The people have taken over American politics, and they hate it. "American politics is vastly more open to the masses than it was a few generations ago. Party nominees are chosen by voters in primaries rather than by party leaders in backrooms...Yet according to Fiorina’s data, turnout in elections has fallen and faith in government has plummeted." Ezra Klein in The Washington Post.

BROOKS: The power inversion. "In their new book, “The Metropolitan Revolution,” Bruce Katz and Jennifer Bradley of the Brookings Institution argue that Washington paralysis is already leading to a power inversion. As the federal government becomes less energetic, city governments become more so. Katz and Bradley describe a country that is segmenting slightly into divergent city-states." David Brooks in The New York Times.

KRUGMAN: The spite club. "No, the only way to understand the refusal to expand Medicaid is as an act of sheer spite. And the cost of that spite won’t just come in the form of lost dollars; it will also come in the form of gratuitous hardship for some of our most vulnerable citizens." Paul Krugman in The New York Times.

Historical interlude: Founding Fathers in pin-up poses.

2) What you need to know from the IRS hearing

IRS official acknowledges poor judgment in holding lavish conference. "The Internal Revenue Service official who signed off on a $4.1 million California conference featuring parody videos, tax­payer-paid gifts and upgrades to lavish hotel suites apologized Thursday and said the agency used poor judgment. “In hindsight, many of the expenses that were incurred should have been more closely scrutinized or not have been incurred at all,” Faris Fink, commissioner of the tax-collection agency’s small business and self-employed division, told a congressional committee" Lisa Rein in The Washington Post.

Liveblog: Review the key moments of the IRS hearingJosh Hicks in The Washington Post.

Explainer: Takeaways from the IRS hearingDavid Nather in Politico.

IRS targeting of conservatives is wrong: poll. "Regardless of their party affiliation, Americans think the Internal Revenue Service was wrong to target conservative groups applying for tax-exempt status, and that it was done for political reasons and not because officials felt it was the right policy to pursue, according to the latest New York Times/CBS News poll." Megan Thee-Brenan in The New York Times.

Old school interlude: The original Sesame Street cast.

3) More trouble on immigration reform

House rejects Obama policy on DREAMers. "As the Senate prepares to open debate on a comprehensive immigration overhaul next week, the GOP-held House has voted to halt the Obama administration’s policy of deferring deportation of young adults brought to the country illegally as children..[T]he 224 to 201 vote, which broke along party lines, is an ominous sign for the future of immigration reform efforts. Efforts to normalize the status of so-called DREAMers have been the most consistently popular parts of changes to immigration law." Rosalind S. Helderman in The Washington Post.

...They've decided to take a tougher line. "House Republicans also sent a strong signal on Thursday that they are inclined to take a much harder line on immigration than the Senate and the White House are advocating." Ashley Parker and Julia Preston in The New York Times.

Rep. Paul Ryan endorses immigration reform as Labrador walks away. "A bipartisan group negotiating a House immigration bill earned a key endorsement Thursday from Rep. Paul Ryan (R-Wis.), a day after one of its eight core members quit the effort because of a dispute over healthcare policy. Ryan, the House GOP budget chief and 2012 Republican vice presidential nominee, told The Hill that he supported the legislation the House group hopes to introduce this month, despite the departure of conservative Rep. Raúl Labrador (R-Idaho)." Russell Berman in The Hill

Reid files for immigration vote. "Senate Majority Leader Harry Reid (D-Nev.) filed a motion to end debate on proceeding to the Senate comprehensive immigration reform bill. The Senate is expected to begin floor work next week on the Border Security, Economic Opportunity, and Immigration Modernization Act. The motion to end debate on proceeding to the bill would require 60 votes — that vote is likely to come next week" Ramsey Cox in The Hill.

...And he sets a July deadline. "Senate Majority Leader Harry Reid (Nev.) has set an end-of-month deadline for Senate passage of immigration reform, giving the chamber three weeks to debate legislation on the floor. “We are going to finish the bill before the July 4 recess,” Reid said Thursday. “We need to finish this bill and we’re going to do it as quick as we can.”" Alexander Bolton in The Hill.

Immigration reform could boost housing market. "Passage of immigration reform could be a boon to the real estate and mortgage markets over the next decade. So says the National Association of Hispanic Real Estate Professionals inSan Diego. If Congress approves legislation providing a pathway to citizenship for undocumented immigrants, the organization expects the country’s pool of home buyers to swell by three million, generating some $500 billion in new mortgages." Lisa Prevost in The New York Times.

Adorable animals interlude: Is this a bear, or Batman? We report, you decide.

4) Up or down on the economy?

Mixed econ data cast doubt on pace of job growth. "A mixed bag of economic data this week has cast doubt over the pace of improvement in the job market. Businesses have added an average of 200,000 workers over each of the past six months, helping drive the jobless rate down to its lowest level in four years. But whether those gains are sustainable is an open question, as the Labor Department is set to release its monthly tally of job creation and unemployment on Friday." Ylan Q. Mui in The Washington Post.

What's expected for Friday's nonfarm payrolls number? "The much-anticipated May jobs report comes out Friday morning at 8:30, and economists are expecting more of the same: a gain of about 165,000 jobs — the same number added in April — and a flat unemployment rate of 7.5 percent." Catherine Rampell in The New York Times.

Jobless claims fall to 346k. "Initial jobless claims, a measure of layoffs across the U.S., declined by 11,000 to a seasonally adjusted 346,000 last week, the Labor Department said Thursday...Thursday's Labor Department report showed that the four-week moving average of jobless claims, which is used to smooth out volatility in the data, rose by 4,500 to 352,500." Josh Mitchell and Eric Morath in The Wall Street Journal.

Household wealth rises to pre-recession level. "The net worth of U.S. households and nonprofit organizations—the value of homes, stocks and other assets minus debts and other liabilities—jumped 4.5%, or about $3 trillion, in the first three months of 2013 to $70.349 trillion. That is the highest in nominal terms since records began in 1945, according to a Federal Reserve report released Thursday." Neil Shah in The Wall Street Journal.

Old old old interlude: The world's oldest tumor.

5) How smoothly can Obamacare launch?

Planners expect glitches in health-exchange sites. "Teams of technology experts are racing to finish building government websites that will allow people to shop and sign up for health insurance this October. People involved in the effort say to expect some problems. The functioning of the websites—which will enable people without health insurance to enroll in plans offered through a federal or state insurance exchange—will play a major role in determining whether the Affordable Care Act is deemed a success or failure, since the 2010 law's prime objective was to bring coverage to those who lack it." Jennifer Corbett Dooren in The Wall Street Journal.

Analysis: Subsidies will offset 'rate shock.' "Most of the young, healthy people whose premiums will rise under President Obama's healthcare law will be eligible for tax credits to help with the added costs, according to a new analysis. The analysis, released Thursday by the consulting firm Avalere Health, found that two-thirds of young, uninsured adults will be eligible for subsidies under the healthcare law." Sam Baker in The Hill.

...And one more: One rule lowered premiums. "ObamaCare's rule that insurance companies spend no less than 80 percent to 85 percent of premiums on medical care has allowed many consumers to pay less for their coverage, according to a new analysis. The Kaiser Family Foundation studied the figure, called the medical loss ratio (MLR), and reported that it led to $1.9 billion in premium savings and $1.1 billion in consumer rebates last year." Elise Viebeck in The Hill.

California is White House's proof that Obamacare is working. "President Obama will try to allay anxiety over his signature health-care law Friday during a visit to California, a state that the White House is highlighting as proof that the law is working...President Obama will try to allay anxiety over his signature health-care law Friday during a visit to California, a state that the White House is highlighting as proof that the law is working." Sandhya Somashekhar and Sarah Kliff in The Washington Post.

Will young adults want Obamacare? Let’s ask a young person who’d know. "'More young people than folks over 75 go to the emergency room in a year. It happens frequently enough to them and their friends that they know the costs can be astronomical. Young women are more frequent users of health care; they need things like birth control and regular check-ups. You have young men who don’t have a primary doctor or even remember the last time they went to the doctor. About 15 percent of young adults have a chronic condition and know pretty well that they need health care.'" Ezra Klein in The Washington Post.

Reading material interlude: The best sentences Wonkblog read today.

Wonkblog Roundup

The mobile, social, increasingly Chinese Internet, in 10 chartsTimothy B. Lee.

How much blame does Mervyn King deserve for Britain’s broken economyNeil Irwin.

Dodd-Frank isn’t close to implementedDylan Matthews.

The people have taken over American politics, and they hate itEzra Klein.

California is the White House’s proof that Obamacare is workingSandhya Somashekhar and Sarah Kliff.

Will young adults want Obamacare? Let’s ask a young person who’d knowEzra Klein.

Everything you need to know about the NSA’s phone records scandalTimothy B. Lee.

How Congress unknowingly legalized PRISM in 2007Timothy B. Lee.

Boehner accuses Obama of threatening government shutdown over budget plan. Paul Kane and Lori Montgomery in The Washington Post.

Want to boost fuel economy? Stop thinking about miles per gallonBrad Plumer.

Et Cetera

Interior chief: No new drilling in AtlanticZack Colman in The Hill.

Should we scrap the Import-Export BankPete Kasperowicz in The Hill.

Poll: Same-sex marriage is a state issueSheryl Gay Stolberg and Dalia Sussman in The New York Times.

Boehner won’t take debt ceiling increase off the tableGinger Gibson in Politico.

Farm bill advances in SenateDavid Rogers in Politico.

Obama pitches plan to bring broadband and WiFi to all schoolsPhilip Rucker in The Washington Post.

Got tips, additions, or comments? E-mail me.

Wonkbook is produced with help from Michelle Williams.

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