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Reforms like the plan will be circumvented.

Greenwald 14 Glenn Greenwald, journalist who received the 2014 Pulitzer
Prize for Public Service for his work with Edward Snowden to report on NSA
surveillance, Founding Editor of The Intercept, former Columnist for the Guardian
and Salon, recipient of the Park Center I.F. Stone Award for Independent Journalism,
the Online Journalism Award for investigative work on the abusive detention
conditions of Chelsea Manning, the George Polk Award for National Security
Reporting, the Gannett Foundation Award for investigative journalism, the Gannett
Foundation Watchdog Journalism Award, the Esso Premio for Excellence in
Investigative Reporting in Brazil, and the Electronic Frontier Foundations Pioneer
Award, holds a J.D. from New York University School of Law, 2014 (Congress is
Irrelevant on Mass Surveillance. Heres What Matters Instead.,
The Intercept, November 19th, Available Online at
https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsasmass-surveillance/, Accessed 06-16-2015)
All of that illustrates what is, to me, the most important point from all of this: the
last place one should look to impose limits on the powers of the U.S. government is
. . . the U.S. government. Governments dont walk around trying to figure out how to
limit their own power, and thats particularly true of empires.
The entire system in D.C. is designed at its core to prevent real reform. This
Congress is not going to enact anything resembling fundamental limits on the NSAs
powers of mass surveillance. Even if it somehow did, this White House would never
sign it. Even if all that miraculously happened, the fact that the U.S.
intelligence community and National Security State operates with no limits and no
oversight means theyd easily co-opt the entire reform process. Thats what
happened after the eavesdropping scandals of the mid-1970s led to the
establishment of congressional intelligence committees and a special FISA
oversight courtthe committees were instantly captured by putting in charge
supreme servants of the intelligence community like Senators Dianne Feinstein and
Chambliss, and Congressmen Mike Rogers and Dutch Ruppersberger, while the
court quickly became a rubber stamp with subservient judges who operate in total
secrecy.
Ever since the Snowden reporting began and public opinion (in both the U.S. and
globally) began radically changing, the White Houses strategy has been obvious.
Its vintage Obama: Enact something that is called reformso that he can give a
pretty speech telling the world that he heard and responded to their concernsbut
that in actuality changes almost nothing, thus strengthening the very system he
can pretend he changed. Thats the same tactic as Silicon Valley, which also
supported this bill: Be able to point to something called reform so they can trick
hundreds of millions of current and future users around the world into believing that
their communications are now safe if they use Facebook, Google, Skype and the
rest.

Surveillance restrictions entirely fail no real Congressional

support, new technology and creative interpretations of law.
Waldman 15 Paul Waldman, senior writer at The American Prospect, blogger
for the Washington Post, 2015 (A reality check on the future of government
spying, Washington Post, June 3rd, Available Online at
http://www.washingtonpost.com/blogs/plum-line/wp/2015/06/03/a-reality-check-onthe-future-of-government-spying/, Accessed 06-08-2015)
Its tempting to hail the passage yesterday of the subtly-named USA Freedom Act as
a victory for civil liberties in America and a step toward a healthy recalibration of
the governments surveillance policies. But if thats your feeling today, you might
want to think twice.
Not only are the changes the Freedom Act makes to existing practices relatively
minor, both parties have signed on with the dramatic expansion of
surveillance on law-abiding Americans that occurred after September 11. And
both will continue to support it.
The Freedom Act does take the bulk collection of Americans telephone records out
of the hands of the National Security Agency and leaves those records with the
phone companies; it sets up procedures for the NSA to get access to those records
when it wants to. But the truth is that this program wasnt particularly useful for the
NSA to begin with. The government has been unable to point to a single terrorist
attack that was thwarted by the use of these records. Not only that, just last month
an appeals court ruled that the bulk collection program went way beyond anything
envisioned by the section of the USA Patriot Act that was used to justify it, and it
was therefore illegal.
That doesnt mean this new law isnt significant, because anything that dials back
the surveillance contained in the Patriot Act is significant. But lets not forget that
had Edward Snowden not revealed the existence of this program, the Obama
administration would have been happy to keep it secret from the public
indefinitely. It was only once the programs existence was revealed that President
Obama came out in favor of taking the records out of the NSAs hands. Even if many
Republicans (including Mitch McConnell) would have preferred to keep the bulk
collection going as it was, we still have a bipartisan preference in Washington for
keeping the gargantuan surveillance apparatus we set up after 9/11 in business.
You might not have expected that from Barack Obama if you were a liberal who
supported him over Hillary Clinton in the 2008 primaries, concluding that he was the
dove while she was the hawk because of his opposition to the Iraq War. As a
senator, Obama had been quite active in proposing reforms to the governments
surveillance powers; as president, most of what he advocated has fallen by the
wayside.

And is Clinton going to move to restrict the governments surveillance powers if

shes elected president? Theres no particular reason to believe she will. Up until
now Clinton has been vague about what she might do when it comes to
surveillance; when shes asked about it, her answers tend to go like this: Yes there
are concerns about privacy, we have to balance that with security, its something Ill
be thinking about. Yes, she supported the Freedom Act, but it remains to be seen
whether shell go into detail about any other particular type of surveillance shed
like to restrict.
And lets not forget that the NSA and other government agencies are certain not
possible, not likely, but certain to come up with new ways to spy on
Americans as new technologies become available. Just as the NSA did with the bulk
phone data collection, theyll probably take a look at earlier laws and decide that
theres a legal basis for whatever new kind of surveillance they want to begin
and that its best if the public didnt know about it.

Find Another Method

Obama and the NSA will just find another way to collect the
same data shutting down programs empirically fails to end
the intrusion.
Ackerman 15 Spencer Ackerman, national security editor for Guardian US,
former senior writer for Wired, won the 2012 National Magazine Award for Digital
Reporting, 2015 (Fears NSA will seek to undermine surveillance reform, The
Guardian, June 1st, Available Online at http://www.theguardian.com/usnews/2015/jun/01/nsa-surveillance-patriot-act-congress-secret-law, Accessed 06-082015)
The USA Freedom Act, a compromise bill, would not have an impact on the vast
majority of NSA surveillance. It would not stop any overseas-focused surveillance
program, no matter how broad in scope, nor would it end the NSAs dragnets of
Americans international communications authorized by a different law. Other bulk
domestic surveillance programs, like the one the Drug Enforcement Agency
operated, would not be impacted.
The rise of what activists have come to call bulky surveillance, like the large
collections of Americans electronic communications records the FBI gets to collect
under the Patriot Act, continue unabated or, at least, will, once the USA Freedom
Act passes and restores the Patriot Act powers that lapsed at midnight on Sunday.
That collection, recently confirmed by a largely overlooked Justice Department
inspector generals report, points to a slipperiness in shuttering surveillance
programs one that creates opportunities for clever lawyers.
The Guardian revealed in 2013 that Barack Obama had permitted the NSA to collect
domestic internet metadata in bulk until 2011. Yet even as Obama closed down that
NSA program, the Justice Department inspector general confirms that by 2009, the
FBI was already collecting the same electronic communications metadata
under a different authority.
It is unclear as yet how the FBI transformed that authority, passed by Congress for
the collection of business records, into large-scale collection of Americans email,
text, instant message, internet-protocol and other records. And a similar power to
for the FBI gather domestic internet metadata, obtained through non-judicial
subpoenas called National Security Letters, also exists in a different, non-expiring
part of the Patriot Act.
Jameel Jaffer, the deputy legal director of the ACLU, expressed confidence that the
second circuit court of appeals decision last month would effectively step into the
breach. The panel found that legal authorities permitting the collection of data
relevant to an investigation cannot allow the government to gather data in bulk
setting a potentially prohibitive precedent for other bulk-collection programs.
We dont know what kinds of bulk-collection programs the government still has in
place, but in the past its used authorities other than Section 215 to conduct bulk

collection of internet metadata, phone records, and financial records. If similar

programs are still in place, the ruling will force the government to reconsider them,
and probably to end them, said Jaffer, whose organization brought the suit that the
second circuit considered.
Julian Sanchez, a surveillance expert at the Cato Institute, was more cautious.
The second circuit ruling establishes that a relevance standard is not completely
unlimited it doesnt cover getting hundreds of millions of peoples records, without
any concrete connection to a specific inquiry but doesnt provide much guidance
beyond that as to where the line is, Sanchez said.
I wouldnt be surprised if the government argued, in secret, that nearly anything
short of that scale is still allowed, nor if the same Fisa court that authorized the bulk
telephone program, in defiance of any common sense reading of the statutory
language, went along with it.

Indeed, just this week an investigation by the Associated Press revealed that the FBI
is using aircraft with advanced cameras to conduct investigations without warrants.
Thats a relatively mundane use of technology, but there will always be new tools
and capabilities coming down the pike, and the impulse will always be to put them
into operation, then figure out afterward if its legally justifiable.
The story of the bulk telephone data collection tells us that the only thing likely to
restrain the expansion of government surveillance is public exposure. If youre
hoping that politicians who care about privacy will do it on their own, youre likely to
be disappointed.

Covert Noncompliance
Even if the President claims to support the law, Obama will use
the State Secrets Doctrine to covertly avoid compliance with
surveillance statutes.
Bazzle 12 Timothy Bazzle, litigation associate at Goodwin Procter LLP in
Boston, J.D., Georgetown University Law Center, M.I.A., School of International and
Public Affairs at Columbia, 2012 (Shutting The Courthouse Doors: Invoking The
State Secrets Privilege To Thwart Judicial Review In The Age Of Terror, Civil Rights
Law Journal, Vol 23, No 1, Available Online at
http://civilrightslawjournal.com/issues/23.29.pdf, Accessed 06-05-2015)
The war on terror has led to an increased use of the state secrets privilege by the
Executive Branchto dismiss legal challenges to widely publicized and controversial
government actionsostensibly aimed at protecting national security from terrorist
threats.1 Faced with complaints that allege indiscriminate and warrantless
surveillance,2 tortious detention, and torture that flouts domestic and international
law,3 courts have had to reconcile impassioned appeals for private justice with the
governments unyielding insistence on protecting national security. Courts, almost
unanimously, have cast their lot with national security, granting
considerable deference to government assertions of the state secrets
principle. This deference to state secrets shows no signs of abating;
indeed, the growing trend is for courts to dismiss these legal challenges
pre-discovery,4 even before the private litigants have had the chance to present
actual, non-secret evidence to meet their burden of proof. Although many looked
optimistically at President Obamas inauguration as a chance to break decisively
from the Bush Administrations aggressive application of the state secrets
privilege,5 the Obama Administration has largely disappointed on the state-secrets
front, asserting the privilege with just as much fervorif not as much regularity6
as its predecessor.7
Judicial deference to such claims of state secrecy, whether the claims merit
privileged treatment, exacts a decisive toll on claimants, permanently shutting the
courthouse doors to their claims and interfering with public and private rights.8
Moreover, courts adoption of a sweeping view of the state secrets privilege
has raised the specter of the government disingenuously invoking state
secrets to conceal government misbehavior under the guise of national
security.9 By granting greater deference to assertions of the state secrets
privilege, courts share responsibility for eroding judicial review as a meaningful
check on Executive Branch excesses. This Article argues for a return to a narrowly
tailored state secrets privilegeone that ensures that individuals who allege a
credible claim of government wrongdoing retain their due process rights.

Presidents will use secret National Security Directives to

continue to thwart Congress and the Courts on surveillance
no effective oversight.
Moe and Howell 99 Terry M. Moe, William Bennett Munro Professor of
Political Science at Stanford University and a senior fellow at the Hoover Institution,
and William G. Howell, Ph.D. Candidate at Stanford, now a Professor in American
Politics at the University of Chicago Harris School of Public Policy Studies, 1999
(The Presidential Power of Unilateral Action, The Journal of Law, Economics, and
Organization, Vol 15 No 1, Available Online at
http://home.uchicago.edu/~whowell/papers/ThePresidential.pdf, Accessed 06-052015)
Presidents also have advantages in foreign affairs because of the expertise they
control, and because of the frequent need for secrecy. These are reasons why
Congress feels the need to delegatebut they also give presidents key resources,
whatever the delegation, for taking unilateral action that can easily go beyond
the bounds of what Congress intends. This is true throughout the realm of foreign
policy, but it is perhaps most consequential for policies bearing on the intelligence
community. While the Central Intelligence Agency and other intelligence
organizations within the government have played key roles in U.S. foreign policy,
they have been almost entirely under the control of presidents who have used
these agencies to promote their own agendas throughout the world, exercised their
control largely in secret, and sometimes, as in the Iran-Contra affair, done things of
which Congress would never have approved if it knew (Fleishman and Aufses,
1976).
The key is that Congress often doesn't know. Presidents control the
intelligence community through their own orders, with heavy reliance on '"national
security directives," which can be kept secret. Thus even though Congress, as part
of its "resurgence" after Vietnam and Watergate, set up committees to oversee
aspects of the intelligence community, the pervasive secrecy has made their job
extremely difficult. Consider the words of Lee Hamilton [(D) Indiana], chair of the
Iran Contra Committee, who vented his frustration at a 1988 House hearing:
The use of secret [national security directives, or NSDs] to create policy infringes on
Congress's constitutional prerogatives by inhibiting effec- tive oversight and limiting
Congress's policymaking role. [NSDs] are revealed to Congress only under
irregular, arbitrary, or even accidental circumstances, if at all. Even the
Intelligence Committees do not usually receive copies of [NSDs]. (U.S. House of
Representatives, 1988:29)