WarSclerotic

An independent board tasked with reviewing National Security Agency surveillance called Thursday for the government to end its mass data collection program and “purge” its files, declaring the program illegal in a major challenge to President Obama.

The president did not go nearly as far when he called last week for ending government control of phone data collected from hundreds of millions of Americans. In its report, obtained by Fox News and scheduled for release Thursday afternoon, The Privacy and Civil Liberties Oversight Board (PCLOB) said the program ran afoul of the law on several fronts.

“The … bulk telephone records program lacks a viable legal foundation,” the board’s report said, adding that it raises “serious threats to privacy and civil liberties” and has “only limited value.”

“As a result, the Board recommends that the government end the program,” the panel wrote.

It remains to be seen whether Obama will accept all or part of the recommendations, but the findings could nevertheless be used as leverage in federal lawsuits against NSA spying.

The report concluded that the NSA collection raises “constitutional concerns” with regard to U.S. citizens’ rights of speech, association and privacy.

“The connections revealed by the extensive database of telephone records gathered under the program will necessarily include relationships established among individuals and groups for political, religious, and other expressive purposes,” it said. “Compelled disclosure to the government of information revealing these associations can have a chilling effect on the exercise of First Amendment rights.”

The panel added that the program “implicates constitutional concerns under the First and Fourth Amendments.”

The recommendations are sure to meet resistance in Washington. House Intelligence Committee Chairman Mike Rogers, R-Mich., who has been a staunch defender of the NSA, voiced dismay at the report’s findings.

“I am disappointed that three members of the Board decided to step well beyond their policy and oversight role and conducted a legal review of a program that has been thoroughly reviewed,” he said in a statement, noting that federal judges have found the program to be legal dozens of times.

The report also rejected claims that the program was necessary to cover up a gap in intelligence arising from a failure to detect Al Qaeda members in the United States prior to the Sept. 11, 2001 terror attacks. U.S. officials had claimed that the phone data collection program would have made clear that terrorist Khalid al-Mihdhar was calling a safehouse in Yemen from a San Diego address.

“The failure to identify Mihdhar’s presence in the United States stemmed primarily from a lack of information sharing among federal agencies, not of a lack of surveillance capabilities,” the report said. “This was a failure to connect the dots, not a failure to connect enough dots.”

The board’s recommendations go well beyond the reforms ordered by Obama in a major speech last Friday, in which he said that the phone records database would no longer be held by the NSA. Obama also tightened restrictions on gathering and accessing phone data, but did not recommend the program’s end.

The PCLOB recommendations also are more sweeping than reforms proposed by another panel of experts. That panel, the Review Group on Intelligence and Communications Technologies, advised Obama in December to restrict phone surveillance to limited court-ordered sweeps.

Along with its call for ending bulk phone surveillance, the oversight board report outlined 11 other recommendations on surveillance policy, calling for more government transparency and other reforms aimed at bolstering civil liberties and privacy protections. The board called for special attorneys to provide independent views in some proceedings before the secret spy court — as opposed to Obama’s plan for a panel of experts that would participate at times. The board also urged the administration to provide the public with clear explanations of the legal authority behind any surveillance affecting Americans.

Legal opinions and documents “describing the government’s legal analysis should be made public so there can be a free and open debate regarding the law’s scope,” the board said. Both the Bush and Obama administrations have been criticized by civil liberties advocates and by tech industry officials for failing to provide clear public explanations of the decision-making behind their surveillance policies.

While the oversight board found consensus in some of its recommendations for transparency, its members were sharply divided when it came to the surveillance programs and their judicial oversight.

Two members, former Bush administration Justice Department lawyers Rachel Brand and Elisebeth Collins Cook, defended the bulk phone sweeps and said they were too valuable to shut down.

“I am concerned about the detrimental effect this superfluous second-guessing can have on our national security agencies and their staff,” said Brand, who as a Justice lawyer defended USA Patriot Act legislation that provided the NSA with its authority to make the bulk phone collections.

But the oversight board’s three other members — executive director David Medine, former federal judge Patricia Wald and civil liberties advocate James Dempsey — held firm for broad changes.

“When the government collects all of a person’s telephone records, storing them for five years in a government database that is subjected to high-speed digital searching and analysis, the privacy implications go far beyond what can be revealed by the metadata of a single telephone call,” the majority wrote.

The oversight board was created at the urging of the independent commission on the 9/11 attacks as a key organizational reform needed to balance counterterrorism policy with civil liberties concerns. The board functioned fitfully for several years, often short on members because of Congress’ inaction. It finally won legislative approval last year for all five members and staff and took on its study of the NSA programs at the urging of Obama and congressional leaders.

The Associated Press contributed to this report.

Were it not dealing with the killing of 130,000 civilians, a genocide of frightening proportions, and the exposure of terrible brutality by the Assad regime not been exposed — then perhaps this summit to discuss the future of Syria wouldn’t seem to be an especially unique diplomatic farce.

Representatives from across the globe are talking about a transfer of power and holding elections, and are discussing whether the accused is eligible to participate. In actuality, no one is putting any real stock in the worthless chatter that is supposed to extricate our neighbor to the north from this horrific crisis.

This summit was born in diplomatic sin — U.S. President Barack Obama’s belated focus on Assad’s wholesale use of chemical weapons against his people. There is a real achievement, though. Assad’s chemical weapons warehouses have been wiped clean, almost entirely if not entirely. The lack of a comprehensive diplomatic plan, however, and without the required determination to foster a political solution, this achievement, valuable as it may be, is not enough because it is merely one aspect of the equation.

The West’s dithering led to the disintegration of the Syrian opposition. The democratic countries left the sane elements in the opposition to erode. Now the rebellion is being led by al-Qaida, which again puts into question whether under the current conditions humanity should be interested in toppling Assad, who was and still is subservient to the Iranians.

Not to mention that America is not what it used to be. Obama, after all, is currently engaged in a love affair with Tehran, and one can only think that if it were up to the Americans, the Iranians would be allowed to participate in this summit. Only a Saudi Arabian veto and threats by the vestiges of the Syrian opposition to boycott the summit left the representatives for Iranian President Hassan Rouhani at home, or perhaps they flew with him to the World Economic Forum in Davos to ask high-tech leaders to invest billions in their country.

The summit in Geneva, which began Wednesday to discuss Syria’s future, is the unnecessary result of the international community’s empty diplomatic efforts to rid Syria of the Assad regime. Even the West’s willingness to initiate Assad’s downfall has waned. Instead there appears to be a sense of acceptance that the Middle East exists on a powder keg, which means an increasing threat to stability in Lebanon and to calm in Israel.

Only the staggering proportions of the ever-deepening human tragedy prevent this summit from being ridiculed as a joke.

Iranian President Hassan Rouhani last week tweeted a declaration of diplomatic victory: “In #Geneva agreement world powers surrendered to Iran’s national will.” In response, White House press secretary Jay Carney said not to worry: “It doesn’t matter what they say. It matters what they do.”

OK, so what are they doing? Abbas Araqchi, Iran’s chief negotiator, has provided the answer. “No facility will be closed; enrichment will continue, and qualitative nuclear research will be expanded,” he said. “All research into a new generation of centrifuges will continue.” Iran also is sending warships into the Atlantic Ocean for the first time in history — a not-so-subtle message, perhaps?

The Geneva agreement does slow Iran’s timeline for the development of nuclear weapons — by a month. Yes, that’s right: If Iran’s rulers faithfully comply with every commitment they have so far made, at the end of this six-month period, they will be about three months — instead of two months — away from breakout capacity.

In exchange, the U.S. and other “world powers” have given the revolutionary regime, long the world’s leading sponsor of terrorism, additional time — perhaps as much as a year — to continue developing nuclear warheads, triggers and ballistic missiles. Plus there is sanctions relief sufficient to remove the threat of an impending Iranian economic crisis. Iran’s economy already is recovering.

If such “doing,” in addition to “saying,” does not justify Rouhani’s claim of a “surrender” to Iran what would? Perhaps this: The same day Rouhani was using social media to announce Iran’s defeat of the West, Reuters was publishing photos of Iran’s foreign minister, Mohammad Javad Zarif, laying a wreath at the Beirut grave of Imad Mughniyeh.

History has cheated Mughniyah of the infamy he deserves. No self-proclaimed jihadist other than Osama bin Laden has murdered more Americans than he. A commander of Hezbollah, Iran’s Lebanon-based terrorist militia, Mughniyeh was the mastermind behind the attacks on the U.S. Embassy (63 people murdered) and Marines barracks (241 killed) in Beirut in 1983, as well as the truck bombing of a building housing French paratroopers (58 killed). He also was indicted for the 1985 hijacking of TWA flight 847, during which U.S. navy diver Robert Stetham was murdered.

Kidnapping was another of Mughniyeh’s specialties. William Buckley, the CIA station chief in Beirut, was abducted in 1984. For 15 months, he was brutally tortured before finally being murdered.

Through these and many other atrocities, according to former Deputy Secretary of State Department Richard Armitage, Hezbollah incurred a “blood debt” to America. But neither Republican nor Democratic administrations have ever made a serious effort to collect.

On February 13, 2008, Mughniyeh was assassinated. The following day, the Washington Institute’s Matthew Levitt and David Schencker wrote a paper describing him as a “brilliant military tactician” who served as Hezbollah’s “primary liaison to Iran’s security and intelligence services.”

Born in southern Lebanon in 1962, Mughniyeh “became a sniper in Yasser Arafat’s forces” at the age of 14. His “first major operation outside Lebanon was the March 1992 bombing of the Israeli embassy in Buenos Aires that killed twenty-nine people. Two years later, he directed the bombing of the Asociación Mutual Israelita Argentina in the same city, killing 85. Although Hezbollah carried out the attack, Argentinean court documents allege that Mughniyeh’s impetus came from a fatwa issued by Iran’s supreme leader, Ali Khamenei.”

Syrian President Bashar Assad, Iran’s loyal client, provided Mughniyeh with safe harbor — until it wasn’t. On Feb. 12, 2008, in a fashionable Damascus neighborhood, Mughniyeh attended a reception marking the 29th anniversary of the Iranian Revolution. He left the party around 10:30 p.m. and walked to his car. He didn’t notice that the headrest on the driver’s seat had been replaced. The new one contained an explosive. It detonated, killing him and no one else. Nearby buildings suffered only minor damage. It was a very professional hit. There is no proof that Israel was responsible.

The key point is this: Zarif’s homage to Mughniyeh, combined with Araqchi’s boast that Iran’s nuclear activities are continuing, combined with Rouhani’s announcement that America and other world powers have “surrendered” speaks volumes. It says that for the Iranian side, “Negotiations do not require concessions. Negotiations are a tool for us to receive concessions.” Actually, Iranian parliamentarian Ali Motahari said exactly that.

Many of the most influential members of “the foreign policy community” are convinced that such rhetoric is without significance — that it’s just for “domestic consumption.” Within Iran, they believe, a great debate is taking place between “hardliners” and “moderates.” They see Rouhani as the latter.

They don’t grasp that the Supreme Leader is called the Supreme Leader for a reason. During the popular upheaval that followed Iran’s fraudulent elections in 2009, tens of thousands protested in the streets, yelling “Death to the Dictator!” They knew what they were talking about — even if many in the West did not.

And so, despite abundant evidence to the contrary, the dominant narrative has become that the negotiations now underway offer “a once-in-a-generation opportunity to keep Iran from acquiring nuclear weapons.” Those of us who dissent from that view are denounced as “war mongers.”

Or, as news analyst-cum-humorist Jon Stewart told his millions of fans last week, “For the first time in decades,” the U.S. is on the verge of re-establishing “diplomatic relations with Iran and a means of ensuring that they would not have a nuclear weapon. Just so long as nobody comes in and figuratively throws eggs at the entire thing.”

Stewart went on to accuse Democrats and Republicans in Congress — at least 59 senators and a clear majority in the House — of doing exactly that by attempting to pass a bill that would put Iran’s rulers on notice that tough new sanctions will be imposed if they fail to make significant concessions over the next six months, if they refuse to dismantle their nuclear weapons programs in exchange for the sanctions relief the U.S. has already begun providing.

At this critical juncture, you might expect Iran’s rulers to do all they can to make this spin more credible, to at least give American leaders a face-saving way to “surrender.” Apparently, they see no need. They figure they can tell the truth about American retreat and do pretty much as they please on the nuclear portfolio. They are confident that American and other Western diplomats, politicians and pundits will continue to place their faith in the ability of international inspectors to stop a regime that has spent decades engaging in nuclear mendacity and the slaughter of Americans. No compelling evidence contradicts their thesis.

Clifford D. May is president of the Foundation for Defense of Democracies, a policy institute focusing on national security.