Obama's NSA Defense: Says Congress Can Raise Objections, BUT it Can't as a Whole!

[KoKo]

Obama's NSA Defense: Says Congress Can Raise Objections, But it Can't as a Whole!
Elspeth Reeve 1,717 Views Jun 7, 2013

President Obama defended the National Security Agency's collection of all our phone calls on Friday by saying at a press briefing that if the agency was acting like "Big Brother and how this is a potential program run amok," then Congress would be free to air those concerns. This is not true.

"When it comes to telephone calls, every member of Congress has been briefed on this program," Obama said. "With respect to all these programs, the relevant intelligence committees are fully briefed on these programs." He noted that the secret FISA court and Congress provide a check on the executive branch's use of this power. "I think, on balance, we have established a process and a procedure that the American people should feel comfortable about," Obama said. "These programs are subject to congressional oversight and congressional reauthorization and congressional debate. And if there are members of Congress who feel differently, then they should speak up." He later added, "And if in fact there was — there were abuses taking place, presumably, those members of Congress could raise those issues very aggressively. They're empowered to do so."

But they couldn't speak up! Or at least they're certainly couldn't "raise those issues very aggressively" anywhere outside of a classified hearing of, say, the Senate Intelligence Committee, because, legally, they're not empowered to air their complaints in public. The NSA's phone call metadata collection program was classified until Director of National Intelligence James Clapper declassified parts of it in order to keep defending it from a Guardian exposé. That means it's not just that members of Congress couldn't air complaints about the program — they couldn't acknowledge it's existence.

Sens. Mark Udall and Ron Wyden both tried to raise objections to the program without spilling secrets, writing in a letter to Attorney General Eric Holder last year that "there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows." Udall told The Denver Post on Thursday that he "did everything short of leaking classified information" to bring attention to the NSA's phone metadata collection. At a hearing of the Senate Appropriations committee on Thursday, Sen. Mark Kirk was one of several Senators to ask Attorney General Eric Holder, vaguely, about the phone-call mining. "With all due respect, I don't think this is an appropriate setting to discuss that issue," Holder answered. The nation's top lawyer appeared to be reminding a leading member of Congress that public Congressional hearings are not where members of Congress are allowed to talk about the NSA's spying program.

Jennifer Hoelzer, a former aide to Wyden, explained how hard it is to raise concerns about a program you can't acknowledge the existence of. Writing in the Huffington Post, she says, "Seriously, 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?"Hoelzer explains, "Because, while he may be a senior member of the Senate Select Committee on Intelligence, the executive branch retains the sole authority to classify and declassify information." The executive branch can use this to its advantage:


Here's the impromptu question-and-answer session of the president's briefing on Obamacare, in full at:

http://www.theatlanticwire.com/politics/2013/06/obama-nsa-response/66015/

[Autumn]

1. Interesting. I had thought Congress was part of the oversight.

rec

[KoKo]

6. Only the Senate Intelligence Committee and they get Gagged like under Bush...

Were you around for the Sen. Rockefeller incident where he wrote a memo in secret about how he didn't know about Iraq (I'd have to Google for Details) but it was weird thinking a Rockefeller Family Member would be gagged and was so afraid of repercussions from Iraq War that he locked away a memo he wrote.

Whatever...it's the Senate and House Intelligence Committees who are vowed to Secrecy and I thought this article addressed that issue. It has to come from that Committee but they aren't allowed to see ALL the INFO and what they see from the President is very little. Apparently when or IF they request more...they can be denied and they are bound to secrecy about all of their dealings with Intell Info and their dealings with the Agencies of Secrets ....

[randome]

2. So lock the doors and post guards and have Congress talk to the President in private.

Problem solved. I certainly would not want national security matters discussed in public. Congress can force the President to do whatever the hell it wants. They are just too disorganized and spineless to work together. On anything.

[hr]
[font color="blue"][center]Stop looking for heroes. BE one.[/center][/font]
[hr]

[KoKo]

7. Not Possible...it's not the way it all works with the Super Committees and all.

Did you read the article?

[rhett o rick]

21. Your just not getting this. If you "lock the doors" and dont let anyone in the public know what

happens then you have no check on the system. To say Congress can object in secret is absurd. So they object and the president tells them to go to hell. What recourse do they have? That's a bogus as telling us that everything is cool because whistle-blowers are allowed to challenge management in secret.

[ProSense]

3. It's like civics 101 went out the window.

Obama said. "With respect to all these programs, the relevant intelligence committees are fully briefed on these programs." He noted that the secret FISA court and Congress provide a check on the executive branch's use of this power....Writing in the Huffington Post, she says, "Seriously, 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?"Hoelzer explains, "Because, while he may be a senior member of the Senate Select Committee on Intelligence, the executive branch retains the sole authority to classify and declassify information." The executive branch can use this to its advantage.

So a Congressional aide is complaining that a member of the Senate Select Committee on Intelligence can't tell her about classified information and briefings?

The President is required by law to brief the committee.

Maybe the Senate can consider the aide's complaint. I mean, if Senators believe their sworn oath is a problem, maybe they can pass a law to change the Senate rules. Aren't they the legislative branch?

[OrwellwasRight]

10. It's "classified information"

What is the Senator or Member to do to raise the alarm without breaking the law?

[ProSense]

13. So

"It's 'classified information' What is the Senator or Member to do to raise the alarm without breaking the law? "

...when a Senator, who is responsible for oversight, does it that's "breaking the law," but when someone hired to protect that information leaks it, that's not "breaking the law"?

[OrwellwasRight]

14. What are you even talking about?

It's classified. It IS breaking the law when Senators or Members release the information. That is why they don't. Briefing them and then telling them they can't tell the public or they will be committing treason does not equal oversight. The system does not work.

[ProSense]

17. What are you talking about?

"It's classified. It IS breaking the law when Senators or Members release the information. That is why they don't. Briefing them and then telling them they can't tell the public or they will be committing treason does not equal oversight. The system does not work."

Oversight is their responsiblity. If they have concerns they can hold hearings and demand information. You're trying to portray the Senate, Congress as powerless. They are a coequal branch of the government.

[OrwellwasRight]

19. The Senate is not powerless.

Individuals who know classified information are powerless to reveal it unless they want to be charged with treason. What they hell kind of hearings will they have when the Administration will either refuse to come or just come and not answer due to "national security"? It is a win win for the Administration. They can claim to have briefed Congress, but they know the members briefed can't do anything to stop them without violating the law. Tell me how you have an oversight hearing on a secret program? They cannot demand that "classified" information be revealed in a public hearing. The Supreme Court has in numerous cases defended the Executive Branch's right to classify information and keep it secret. All the Administration has to do is claim "national security" and it is virtually free to keep anything hidden from the American public. Where have you been? The system does not work.

[ProSense]

24. Members

"The system does not work."

...of the committee were briefed, as indicated. In my original comment, I stated that if Senators have a problem with Senate rules or laws related to their oversight role, they need to address them.

Saying the "system does not work" or whining about the system is not a solution. They are there to come up with solutions.

[OrwellwasRight]

25. Yes, blame the people who would be arrested for treason.

Don't blame the Administration doing the spying and violating all of our civil rights. Yes, that's is where the blame should go.

[ProSense]

28. Can Congress impeach the President?

You're making excuses for a body that has oversight over the executive.

[OrwellwasRight]

32. So the answer is impeaching Obama? Seriously?

I don't think I understand your strategy. Nor do I think I want to. There's a lot wrong with this Administration, but such a move would be DEVASTATING to the country, IMO, more devastating than the status quo.

[struggle4progress]

4. They couldn't speak up? Horse-shizz! They all enjoy an amazing Constitutional protection:

Constitution Art I Sec 6 Par 1 says: ... for any speech or debate in either House, they shall not be questioned in any other place ...

Representatives and Senators enjoy complete immunity from prosecution for anything they say in the course of a speech or debate in Congress

[KoKo]

8. The article explains WHY.. It's the Intelligence Commitees that are Sworn to Secrecy.

It's in the article but you want to come on here and disrupt. You seem to not know the US House and Senate Protocols...how it's set up and what goes on. The article I excerpted from explains that...but, you didn't read.

[struggle4progress]

23. You need to read the Constitution again: no Representative or Senator can be prosecuted

for anything said in a Congressional speech or debate

Almost all dynamics here are governed, in part, by the potential political fights. The Executive isn't actually required under the Constitution to tell Congress very much, beyond giving an annual report on the state of the union. But if the Executive won't tell Congress much, Congress may suddenly notice that there's no obvious requirement to fund any particular program either. Where classified information is involved, the Executive and Congress work out agreements where the Executive provides information with the understanding Congress will treat it as sensitive; and if members of Congress refuse to treat the material as sensitive, then the Executive remains free to notice suddenly the lack of any actual obligation to provide such information; and Congress then might notice it has no obligation to provide funding, or the affected house of Congress, if sufficiently eager to regain the faith of the Executive, could expel the leaking member by two-thirds vote

[FarCenter]

5. According to Article 1, Section 6, they are immune from prosecution if they bring it to the floor

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

They might be censured by their peers in the House or Senate, but speeches or debate on the floor is exempt from executive branch prosecution.

[OrwellwasRight]

9. "except Treason"

Releasing classified information can be prosecuted as treason. See: Bradley Manning. It is clearly not as cut and dried as you imply. That's just one of the many problems with over-classification of documents.

[FarCenter]

12. See the semicolon after "same" - the immunity for speeches and debate is absolute.

[OrwellwasRight]

15. Not that simple.

You can't say what the constitution means by pointing to a semi-colon. If that were true, then "A well-regulated militia" would mean something in the Second Amendment. The Supreme Court says it doesn't. Show me the case where a Senator has been immunized from treason by the Supreme Court.

[FarCenter]

16. Show me a case where a Senator had been charge with treason for something said on the floor.

Yes, it would probably take a Supreme Court case to ajudicate it, but the language of the section is pretty plain.

Senators have no guts.

[OrwellwasRight]

20. The language is not plain.

Certainly not plainer than "well-regulated militia." Show me where the Supreme Court has given a definitive meaning to a semi-colon.

[FarCenter]

22. So lets have a test case.

[OrwellwasRight]

26. Find a Senator or MOC on the Intelligence Committee willing to get prosecuted for treason.

If there is one, great, I'd contribute to his or her defense fund. I just doubt there is such a person. Just like those who are for free trade (not fair trade) are almost the only ones who get put on Senate Finance/House Ways and Means, war mongers not civil libertarians are usually the only ones assigned to the Intelligence Panels.


Either way, I think the primary blame should be on the Administration doing the spying (any Administration--not just Obama's), not on the Senators/MOCs who don't want to commit treason by blabbing. That is just my opinion. Clearly not the only one here.

[struggle4progress]

29. See my #27 below

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=2973757

[struggle4progress]

27. (1) The charges against Manning do not include treason

(2) The constitutional immunity for congressional speech and debate appears to cover at least any speech and debate associated with legislative process; see

GRAVEL v. UNITED STATES
408 U.S. 606 (1972)

Opinion of the Court by MR. JUSTICE WHITE, announced by MR. JUSTICE BLACKMUN.

... It appeared that on the night of June 29, 1971, Senator Gravel, as Chairman of the Subcommittee on Buildings and Grounds of the Senate Public Works Committee, convened a meeting of the subcommittee and there read extensively from a copy of the Pentagon Papers. He then placed the entire 47 volumes of the study in the public record ... The last sentence of the Clause provides Members of Congress with two distinct privileges. Except in cases of "Treason, Felony and Breach of the Peace," the Clause shields Members from arrest while attending or traveling to and from a session of their House. History reveals, and prior cases so hold, that this part of the Clause exempts Members from arrest in civil cases only ... Senator Gravel disavows any assertion of general immunity from the criminal law. But he points out that the last portion of 6 affords Members of Congress another vital privilege - they may not be questioned in any other place for any speech or debate in either House. The claim is not that while one part of 6 generally permits prosecutions for treason, felony, and breach of the peace, another part nevertheless broadly forbids them. Rather, his insistence is that the Speech or Debate Clause at the very least protects him from criminal or civil liability and from questioning elsewhere than in the Senate, with respect to the events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record. To us this claim is incontrovertible ...

[OrwellwasRight]

33. Interesting. Thanks for finding the case.

This decision might be replicated today. I hope it would.

Although the question was not squarely before the Court: Sen. Gravel had not been charged with treason.

More importantly:

The 70s are not the 2010s.
Pre 9/11 is not post 9/11.
And the Burger court is not the Roberts court.

Sadly, I would not count on a repeat in today's "War on Terror" environment.

[struggle4progress]

35. The court squarely addressed the issue you raised upthread, namely, the question

of which clause or clauses the word "treason" affects:

... Senator Gravel disavows any assertion of general immunity from the criminal law. But he points out that the last portion of 6 affords Members of Congress another vital privilege - they may not be questioned in any other place for any speech or debate in either House. The claim is not that while one part of 6 generally permits prosecutions for treason, felony, and breach of the peace, another part nevertheless broadly forbids them. Rather, his insistence is that the Speech or Debate Clause at the very least protects him from criminal or civil liability and from questioning elsewhere than in the Senate, with respect to the events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record. To us this claim is incontrovertible ...

That is, there is no exception in the speech and debate clause

[OrwellwasRight]

40. "Squarely addressing the issue"

Is legalese for "the question was before the court." In this case, the court could agree all it wanted, but the question was not before it:

"Our decision is made easier by the fact that the United States appears to have abandoned whatever position it took to the contrary in the lower courts."

Which means the USG did not appeal that point. If that point was not appealed, then the pronouncement of the Supreme Court is known as dicta, as it has no bearing on the actual holding of the case.

[jmowreader]

31. In the case being discussed, it would be handled as a Felony

"Dissemination of classified information to unauthorized persons" is a Felony, and that's the easiest way to prosecute a congressman who decided throwing classified things into a floor speech would be a good idea.

[OrwellwasRight]

34. Whether or not s/he would be prosecuted for comments made on the House/Senate floor,

which seems debatable, given the other discussions here about the speech and debate clause, the person's career would most certainly be over. A risk most are clearly unwilling to take. (Not defending that, just stating the facts.) He or she would be pilloried for putting the US in danger, when the real danger is from the Administration that is treading on our civil rights. I don't understand all the anger at the Senators/MOCs who have refused to divulge information that it is illegal to divulge and no anger at the Administration that is spying on us without individualized suspicion.

[struggle4progress]

38. See my #27

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=2973757

[KoKo]

11. There's not One of them with Courage to do that, though. They answer to their Masters...

and in these days...it ain't there voters...in case you didn't notice. But, the EXCUSE they give to the People through the MSM Megaphone is "We are Sworn to Secrecy" there is "Nothing We Can Do."

I thought this article was good at pointing this out if you read between the lines. The Reporter would be Axed from her job...if she said: "They are sworn to secrecy because the people who pay them want it to be that way...so they go with whichever President is in Office and explain their inaction away as ..."We are Sworn to Secrecy."

The humor of this escaped you?

[limpyhobbler]

18. There is plenty of blame to go around but the main blame goes to the one who did it. nt

[struggle4progress]

30. Obama's operating within the law. If ya don't like the law, work to change it

[sabrina 1]

37. He's operating within a law HE helped to pass. Something that came close to losing him the election.

That law, or the modification to the existing law that forbad what Bush was doing then, altered the law to cover for Bush and his Telecom spies. Obama had opposed publicly what Bush did, rightly so, but then turned around and voted for the law they are now using to spy on the American people.

It was a sham, a transparent attempt to save Bush and the Telecoms from legal action. It was retroactive to cover the period during which Bush violated the existing law. Anyone who supported that cover up at that time contributed to the ongoing abuses of the Bush administration. Why would any Democrat want to protect the Bush administration from the consequences of their illegal behavior? Maybe you can explain it?

[struggle4progress]

39. The bill was a compromise during the Bush era, intended to end Bush's lawless behavior,

and over half of the 535 folk in Congress voted for it. Sadly, it was the best we could get at the time. If you have any useful ideas how to chop the law back down to size, I'd love to hear them

[sabrina 1]

41. Oh, enough of this BS. It was a bill quickly cobbled together to save the Bush administration from

finally being held accountable for at least one of their crimes. Mostly it was to save the Telecoms from the consequences of the law they broke. Law suits against them had already begun and part of that law required that they pay the sum of $1,000 to victims of their spying. I never got my $1,000 thanks to Congress. And they went on to profit from their crimes.

It's laughable that you have the gall to think you can convince anyone that the modification to the existing law, which was a good law, and is not anymore, was to 'end Bush's lawless behavior'. I laughed out loud when I read that!!

Wait, maybe you're right. Bush's lawless behavior suddenly became lawful when they passed that bill. So in a Machiavellian sort of way, they did end 'his lawless behavior' they made it legal! And now everyone's doing it, lawfully!

I don't blame the criminals and deceivers in our Government anymore, I blame people who will accept anything, no matter how egregious, even an illegal war, that they try to sell to them. Without these enablers we could stop the crimes against the people. My anger from now on will be directed at those who aid and abet the crimes that have been committed against this country's Constitution. THEY are to blame.

[struggle4progress]

42. We agree on several points: (1) Bush's behavior was lawless; (2) The telecoms cooperation with BUsh

was actionable, and it left them vulnerable to gigantic civil liabilities; (3) Congress inappropriately granted the telecoms retroactive liability; and (4) the resulting protocols really don't provide adequate judicial oversight but allow the FISA court to rubberstamp requests

You have, however, forgotten what Bush was doing: he was engaged in widespread wiretapping without warrants. That was illegal and remains illegal; there's no evidence Obama's doing that

You may also have forgotten two other details: first, that telephone records collection without a warrant has been legal in the US since the late 1970s; and second, that Obama got a warrant for his telephone records collection

[sabrina 1]

36. Is there any reason why the President wasn't aware of the members of Congress, like Ron Wyden

eg, who has been a hero on these issues throughout the Bush years, who HAVE tried to raise the issue? Does the President ever talk to Democrats like Wyden? I would think he would seek out people like Ron Wyden whose reputation on these matters is well known and excellent.

Wyden has been raising this issue for years. If I know that, surely someone at the WH knows. But Wyden could not legally reveal what he knew, he came close enough when he said recently that the American would be shocked to know how the government is operating re security.

I remember an incredible speech by Wyden when Bush was president regarding the abuses that were taking place. I wrote a thank you to him for the guts to raise the issue.