Brand also worried that declaring that counterterrorism officials “have been operating this program unlawfully for years” could damage morale and make agencies overly cautious in taking steps to protect the country.
It's great to have another voice speaking up against mass surveillance. Still -- you're telling me these agencies are in all likelihood committing crimes against the American people, but we need to be careful not to hurt their feelings?
Well, it makes sense that she'd say that since she's one of the two that rejected that the program is illegal.
I've been reading Tim Weiner's Enemies, a history of the FBI and one thing stuck with me. That was that there was a period of time when the FBI was incredibly useless because of a previous Supreme Court ruling that wiretapping was illegal and then FBI agents all began to misunderstand what they could and couldn't do. That lead to a breakdown in communication and procedure between different offices and several terrorists that could have been caught slipped by.
I'm not saying that Brand is right, but there is reason to worry that this could happen again. What needs to be done is a clear declaration of our fundamental rights and a watchdog court that won't let the agencies overstep in their pursuit of justice. The agents have to know their boundaries, we have to know their boundaries, and we have to know that they know their boundaries. The whole FISA court stuff is ridiculous.
It's not hard to fix this problem without hurting morale. Change the primary thing that they should have morale about from protecting the security of the nation to protecting the values upon which this nation was founded, namely the Constitution and the Bill of Rights. Every single agent should know the Constitution back to front, inside and out, and see it as their job to protect it over all other objectives, including catching criminals (imho, we should substitute criminal for terrorist, whenever that person is within the borders of the United States and subject to its laws.). The atmosphere at the agency should be such that any subversion of the Constitution by colleagues and superiors should hurt morale among agency employees.
If you catch a criminal, but do so by subverting the Constitution, you should feel shame, not pride. When you have the power the agency has, it is of utmost importance that values be palpable in the air among staff. Power without obligation to something higher like the Constitution and Bill of Rights will always be debased in favor of achieving concrete objectives.
If we're worrying about hurting their feelings, we're having the wrong debate.
> Well, it makes sense that she'd say that since she's one of the two that rejected that the program is illegal.
Per the article, what the dissenters appeared to have done is reject the inquiry into legality as beyond the proper scope of the board's review. Its a fine distinction, to be sure, but there's a difference between a 3-2 split with three finding the program illegal and 2 finding it legal and a 3-2 split with 3 finding it illegal and 2 finding "we shouldn't be looking at legality at all".
I'm not saying that Brand is right, but there is reason to worry that this could happen again
There is reason to worry that a great many things could happen again. An increase in the number of Zoloft prescriptions in the greater Washington, DC area is pretty far from the top of my list of concerns.
Morale in this context is not about being happy or depressed. It's more of a technical term. It's about doing your job diligently and effectively. Low morale then would be shirking, dragging your feet, not following through, etc. "Because why bother, they don't like what we do" and then doing nothing, rather than less or different.
What's the problem with wiretaps, as long as you have actual independent judicial oversight? I don't have an issue with cops listening to cartel hitmen. Considering everybody as a suspect, that's entirely different.
> It would also be wonderful if all law enforcement officers were required to wear uniforms or identify themselves when in the course of their duties.
I see that now. "Hello, Don Corleone, I'm an undercover police officer, but please pretend you don't see my uniform".
There wouldn't be cartel hitmen if the thing wasn't illegal and hence profitable.
I have an issue with letting them listen--especially if I'm on the other end of the phone, for example, taking their order for pizza or arranging a playdate for my kids or something. It's the few-hops-away rule that is very easily justifiable that creates surveillance states.
If you unknowingly were setting up a playdate for your kids with a hitman, I think you'd have a vested interest in having the guy exposed and brought to justice.
> As long as he hasn't hurt me or mine, what's it matter?
You don't see anything wrong with cartel hitmen? The kind who lines up heads on the side of the road and torture people to death for effect?
> That same logic puts the friends of drone operators in a strange place, right? They kill civilians too.
Not quite. First off, it's much more likely that your cartel acquaintance will catch a bad case of drive-by shooting one of these days, kid or no kid. Secondly, sure, I'd feel weird knowing a drone operator, but AFAIK, they don't torture and kill civilians on purpose, it does make a moral difference.
If the FBI identified an organized crime hitman who killed 20+ people and left no evidence other than making incriminating phone calls, is it wrong for them to place a tap on his phone line once they have probable cause that he is a hitman?
Your hypothetical makes no sense. If they have "probable cause" before tapping his phone, that means that the "left no evidence other than incriminating phone calls" must be false.
Ok let's say they have some evidence that is sufficient to create reasonable suspicion, but probably insufficient to secure a conviction.
Why would it be wrong for the FBI, under the supervision of a court order, to tap this person's phone to see if he is the killer?
Keep in mind this is not a broad NSA dragnet here. This would be a targeted wiretap driven by probable cause and governed by the federal rules of evidence. The GP said "It would be wonderful if all wiretaps were ruled illegal," and we're exploring that idea.
No, it would not be as long as there was a court order and our judges have the time and sense of gravity to give each and every court order sufficient scrutiny to determine whether it has merit or is merely a fishing expedition. Wiretaps should also only begin once a warrant has been approved by a judge, any wiretap in bulk so you can retroactively get phone records and conversations from the date before the warrant was issued is unconstitutional. If the person in question kept their own records, the warrant can apply to those records, but to keep a tab on every American, innocent or otherwise, is disturbing.
Personally, I would love to see a two-factor commit with all warrants. All warrants should require two judges to sign off on them, one federal judge and one state judge where the wiretap will be carried out.
The other thing I would like to see is some sort of "cost" that the agencies must bear to be able to request warrants. It should cost each agency money to apply for warrants and they should have a limited budget each year to spend on warrant applications. At the end of each year, to apply for increases in this budget, they should present an equal number of both cases which they would have liked to pursue warrants on someone, but it was deemed outside the budget and cases where they pursued a warrant and got one, but the person turned out to be innocent. Such a policy applies market forces to limit rampant wiretapping and phishing expeditions. Instead they will adjust to only use their warrants on those people who actually should be wiretapped. This would also help prevent unilateral action by a single agent or team, without appealing to another independent group with power of the purse over warrant applications. Individual agents and teams would try to get warrants for all their suspects, but the group with power of the purse has the responsibility to dole out warrant applications according to merit so that the agency doesn't run out of them before year's end.
A court order is not a warrant. This is the heart of the discussion you are trying to get into. The 4th amendment is very clear:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
If we allow a court order or a subpoena to continue to be all that LEO/LEA's to need to get whatever information they want, they will stop going to the courts for warrants, and worse, they will end up doing FISA style bulk orders/subpoena's.
Bottom line, if you have probable cause, get a fucking warrant, else, fuck off. (and companies should be requiring warrants for access to customer information too, not just setting up a pay portal for LEA's to peruse at leisure.)
A search warrant is a particular type of court order; a subpoena is another. As far as I know, there isn't really any overlap: search warrants authorize law enforcement to conduct searches, subject to fourth amendment restrictions; subpoenas compel parties to deliver documents or testimony, subject to fifth amendment restrictions.
Just replace the term "court order" with "warrant" above if it makes my point clearer.
The opinion that kicked off this sub-thread is that all wiretaps should be illegal. "All." That would also eliminate wiretaps that would be authorized under a warrant.
No, probable cause is not the same thing as evidence. His hypothetical is actually how warrants are supposed to work. Law enforcement have probable cause to suspect someone of being guilty. If they can make a strong argument about why the person is probably guilty, they then get a warrant to search for evidence in homes, phone calls, emails, whatever.
His hypothetical literally described the standard for getting a warrant.
> No, probable cause is not the same thing as evidence.
Probable cause is based on evidence.
> His hypothetical is actually how warrants are supposed to work.
No, its not.
> Law enforcement have probable cause to suspect someone of being guilty. If they can make a strong argument about why the person is probably guilty, they then get a warrant to search for evidence in homes, phone calls, emails, whatever.
And that "strong argument" is based on factual evidence that was either received through mechanism other than search and seizure, was the product of prior search and seizure in conditions that do not require a warrant, or was the product of prior warrant-based searches and seizures.
If there was no evidence left other than what was sought in the warrant, there would be no basis for probable cause to support the warrant.
>> No, probable cause is not the same thing as evidence.
> Probable cause is based on evidence.
From wikipedia, "Probable cause" is a stronger standard of evidence than a reasonable suspicion, but weaker than what is required to secure a criminal conviction.
In other word, you can get a warrant when you don't have enough evidence to secure a conviction, which in turn may lead to gather sufficient proof of guilt (or exonerate the suspect, I suppose).
Yes, and any standard of evidence -- even reasonable suspicion -- can't be met without the existence of evidence. That's why its called a "standard of evidence".
Again, if there is no evidence left by the "hitman" except the calls for which the warrant is sought, as specified in the hypothetical, than there can't be probable cause to support the warrant. There can't even be reasonable suspicion. In fact, without some kind of evidence, the only thing that could support the desire to seek the wiretap is arbitrary prejudice.
Fair enough. However, if we take the original premise and change it to "If the FBI identified an organized crime hitman who killed 20+ people and left no solid, non-circumstancial evidence other than making incriminating phone calls, is it wrong for them to place a tap on his phone line once they have probable cause that he is a hitman?", would you agree that wiretaps (with warrants) can be useful?
Circumstantial evidence can be used for a conviction, so the absence of non-circumstantial evidence doesn't mean that there isn't evidence sufficient for a conviction.
And, even if the FBI could know that a hitman left a series of incriminating phone calls without already having evidence which could be admitted against the defendant of the content of those phone calls, a wiretap based on a warrant issued after the fact wouldn't recover those contents.
Further, I don't think anyone in the thread has argued that wiretaps aren't useful in criminal prosecution, the issue which started this was a poster expressing that it would be wonderful if wiretaps were categorically outlawed, which does not require believing that they aren't useful in certain circumstances. It could, for instance, proceed from the belief that the capacity is so likely to be abused covertly in circumstances where it is inappropriate if its existence is tolerated at all, that the usefulness it has in the circumstances to which it is appropriate is outweighed.
"would you agree that wiretaps (with warrants) can be useful?"
Nobody is arguing against that. What people are complaining about is, among other things, the bulk collection and retention of records; the gathering of records upto 3 degrees of separation from a suspect; etc.
The issue I have with the hypothetical is: how would they know about the phone calls without a wiretap? If there was no other reason to suspect the guy, they'd have no basis for probable cause, and thus no way to get a wiretap.
Now if someone tells the police that they've been getting incriminating phone calls, well then that seems like more reasonable probable cause, and doesn't strike me as morally dubious.
What if they hear this guy's name uttered by multiple mafia thugs on the street, as a top hitman? And they find the guy is friends with some mafia members? That doesn't warrant real evidence he killed anyone (random hearsay + just being friends), but it definitely creates some suspicion.
It really was. At least once, known al-Qaeda terrorists did a trial run prior to 9/11. And for a month up to the day before 9/11, Agent Samit was desperately trying to stop Moussaoui by getting a warrant to search his laptop, but a breakdown in communication at the FBI let Moussaoui pretty much get away with it. Then we all know what happened 9/11.
This really presents an interesting problem, I think. Reading the effect of secret government surveillance from the past century, it's hard to not believe that that surveillance won't be abused. It's been abused in so many other countries and so often in this country (where we hold ourselves in such high regard). At the same time, the power to terrify and commit mass murder has become much easier as technology advances. So what to do?
I think I would prefer to spend some of that security money on making transport safer or on Mental health programmes or on better energy use or etc etc. All of those things cause far more problems than terrorism has.
Yes, I completely agree with you that security spending can be trimmed if we make it more efficient. And yes, that money definitely should go to public programs that improve on our well-being (less attacks then!).
However, I just want to state that we can't completely ignore security either. If bombs are going to go off around us (we cannot make 100% of people non-violent), it's not as if we could stand still and take no action either.
> But you're telling me these agencies are committing a crime against the American people, and we need to be careful not to hurt their feelings?
Its worse than that: we have to be careful to avoid making them cautious about committing crimes against the American people, the rule of law, and the Constitutional order of government.
They're not committing crimes against the American people. Not one American has been found who has been demonstrably harmed by any NSA program. Without harm, there no criminal act. That said, something can be unlawful without being criminal.
The Palmer raids in the early 1900s arrested more than 10,000 people. Of that, 3,500 of them were held indefinitely. Almost all of them were innocent people.
In the wake of the 9/11 attacks, 1,200 Muslims were arrested. Some were beaten (this is according to the Justice Department's own Inspector General of the time). Hundreds were held for months. Absolutely none of them were found to be with al-Qaeda.
These are just two examples of MANY. You know what's scary? The spying that the NSA, FBI, and CIA do gets people put on lists. There are lists of people to arrest in the event of an attack. Hoover of the FBI had something like 70,000 people on a list during the era of Communism fear. The vast majority of those people were innocent of any crime.
Over the past century, these lists have been kept openly and kept secretly when different administrations denounced them. But they have been kept (at the FBI at least. Hoover hid them illegally). Letting the NSA spy on us and treating us as if we were assumed criminals before innocent is a terrible way to waste away your fundamental rights.
And the scary thing is we wouldn't even have known that we were being spied on for sure unless Snowden said something.
These are crimes against the American people. You can't tell me that the FISA court not rejecting any warrants is a good thing. Out of tens of thousands of requests, not one gets rejected? That is a failure of the checks and balance system our founding fathers set up. THAT is definitely a crime against the American people.
Wow, I didn't know about the Palmer Raids. Thanks!
"In June 1919, Attorney General Palmer told the House Appropriations Committee that all evidence promised that radicals would 'on a certain day...rise up and destroy the government at one fell swoop.'
And because of how fucked-up the system is, when they come to pick you up, any number of minor things during that encounter ("Fuck you pig, where's the warrant?", running, etc.) can escalate into resisting arrest, disturbing the peace, or assaulting an officer, and then magically you're in the system "for real" and screwed.
I use the hyperbolic case because it should still be allowed--even a kinder "I'm sorry, but I can't leave with you until you've got a warrant" can trigger a "Are you resisting? taze taze taze" event, as we've seen elsewhere. There is no assurance, no safety net, no hope in the system for common sense--and that's before you even take into account informal departmental policies (HPD: "You can beat the rap, but you can't beat the ride.", Denver PD: "We get up early to beat the crowds").
Very few industries are capable of as thoroughly ruining somebody's life as an abuse of power by cops--especially since they are given carte blanche to do so.
We have to look at the worst-case outcomes and make our safeguards against them; anything else is inviting disaster.
Look, there are enough laws and regulations on the books that you can get written up (legally, strictly speaking) for almost anything. Then, it is up to you how far you wish to assert your innocence--the DA will offer to plea you out again and again, and if you make it to court they will then try to make an example out of you, using whatever tricks suit them (all legal, mind you!). There is plenty of evidence and coverage of this happening, so don't pretend it is unreasonable to fear.
That all said, going back to the very first interaction--you and the cop--we see that it becomes purely a decision on the cop's part whether or not you are going to be sent down into the machine.
Justice should not be so arbitrary, but here in the US it oftentimes is; don't pretend otherwise.
EDIT:
As for safeguards...the state can deprive you of years of freedom and set you free afterwards with an "oops". That's bullshit, even if the safeguards finally kick in. And if you end up with "resisting arrest" or just antagonizing the system or embarassing a DA, those safeguards seem to magically fail.
>There are safeguards in place unless I'm mistaken (looking at you Internal Affairs).
Yes, I recall the NSA and other government agencies having such self-policing groups.
Tell me, do you really in your heart of hearts think a corrupt organization (say a police dept in a specific place.. if pressed for an example, say Maricopa County in Arizona?) has a functioning IA group?
The federal government has an IA group too. Many of them. I'm sure that if Snowden had raised his concerns with them, they would have gladly worked with him to solve those problems.......
Internal Affairs is largely hollywood fantasy. If you have trouble with a local police department and need independant help dealing with it, the best you can really do is going to the FBI.
You are free to talk shit to anyone you want in a bar; you are also free to get your ass kicked.
Antagonizing a cop just to be a dick will probably result in those minor charges he would have ignored if you were nice, getting written up with a smile on his face. That's 100% your fault in that case.
Differential punishment based on protected speech is not professional or in line with the Constitution.
That it may be difficult for a court to unambiguously distinguish this abuse of power from legitimate application of discretion doesn't mean that it is legitimate.
Reread what I said above...If you are being a dick because you want to "stick it to the man", well expect the man to stick it back to you and write you up for those petty offenses he would have otherwise ignored.
Problem there is often times people have recieved BS citations for "disturbing the peace" or other nonsense citations which plainly don't apply (i.e. because contempt of cop isn't a crime), but still result in court time and hassle for the accused.
> They're not committing crimes against the American people. Not one American has been found who has been demonstrably harmed by any NSA program. Without harm, there no criminal act.
Criminal acts, in general, don't require harm (some specific crimes may involve a harm as a required element, but that is not generally the case -- generally, crimes exist to prevent harm, but that does not mean a harm must be realized for a crime to occur), and, in any case, depriving the American people of the popular sovereignty by exercising the power of government inconsistent with the constraints in which it is granted by the people through the Constitution is, in and of itself, a harm.
"Not one American has been found who has been demonstrably harmed by any NSA program."
As an American, how would I know? It is against the law to read my mail; but if the government has been secretly reading my mail without my knowledge, then by your logic (and I use that word lightly here) I have not been harmed, since I didn't know about it?
Do you even know the meaning of the word "rights" ? My rights have been violated; I don't have to demonstrate harm.
" Not one American has been found who has been demonstrably harmed by any NSA program."
Of course, this statement heavily relies on what you mean by "demonstrably" and "harm". What is the standard of proof you would require to demonstrate harm? As you say it, it sounds like one of those terms that you can forever pushback against and say "but X didn't demonstrate harm sufficiently".
The most likely harm that I would consider widespread would be the chilling effect. For example, Chris Hedges and others tried to sue the gov for the NDAA's chilling effect, but once they got to court it was thrown out because they had "no standing". So it's pretty obvious that you can't say that a court ruling on something demonstrates harm, because the courts themselves are part of the harm occurring.
As a matter of fact, I bet I could have a pretty good claim that the NSA program has harmed me. I am an Iraq combat vet with PTSD, and happened to be someone who has talking about the NSA doing this stuff since the early 2000's. At my last meeting with the VA, I specifically stated that I was concerned at the confidentiality of my talks due to their being entered in an electronic system that I suspected the NSA and other three-letters would have access to. Therefore I quit my PTSD treatment because I felt I could not trust the VA system or any claims of doctor-patient confidentiality. I actually asked the doc to make sure she typed that into the system so that in the future I could use it as evidence if the need ever arose. I'm doing fine now mostly of my own volition, but what I think about is how many other vets had the same gut feeling and kept their problems hidden and suffered greatly for it?
This is only one example that I think is pretty concrete.
How was Snowden harmed by an NSA program? He's admitted to committing a federal offense and therefore cannot return to the US or countries with an extradition treaty without appearing in federal court. That's pretty "standard" judicial proceedings, no need for NSA powers.
They've undermined the Constitution and Bill of Rights. I'd argue that they've harmed every American by doing so. Harm doesn't just have to be physical or economic. They can harm the liberties of Americans granted by those documents.
Think about it. Your doing what your told over and over is good for the country. You really don't understand all the ins and outs but suddenly what you have putting all your effort into is declared criminal by some. If your a mid/low level worker how are you supposed to feel? Brush it off and blame those above you? Hang your head in shame? There certainly are enough people out there; if not posting here; who would excoriate you for not knowing what any one one with a brain should have known/etc/etc
This is what happens for all wars after reddition: Suddently all local soldiers who did lawful things can be charged for having done illegal crimes. Humans are responsible for their actions, perhaps in the limit of the constraints they were held under. Blame the US for using the vocabulary "war on terrorism" and the NSA for being a military branch. If power turns over and it is deemed illegal, there can be a mixed between penalty and pardon for those involved until the country heals.
The upside is, it's most probably democracy which is winning today.
By which "touchstone", "Three-pronged Test" or "Most Holy Doctrine" are we supposed to know this? That is, you just wrote a very lawyerly thing that doesn't translate well to what everybody knows and feels.
Mass surveillance is a crime, dude. Somebody needs to be punished to set an example so that civil servants don't overstep their bounds again. Somebody needs to be punished to stop what will certainly turn into an instrument of repression.
It's not a "very lawyerly thing" nor is there any problem translating to what "everybody knows and feels." People have a pretty intuitive grasp on the idea that the recourse for Constitutional violations is almost always for the government to stop doing whatever was unconstitutional. When Brown v. Board ruled segregated schools unconstitutional, nobody was thrown in jail. When California unconstitutionally suppressed free speech through its violent video games legislation, nobody was thrown in jail. When limitations on the use of birth control were declared unconstitutional, nobody was thrown in jail. The line between constitutional action and unconstitutional action can be quite subtle in ways only lawyers can appreciate, and because of that we don't punish constitutional violations (on their own). And normal people grasp that reality, and the percentage of people who think a crime has been committed that warrants jail time for anyone is a polling margin of error.
The whole "and should end" thing always makes me laugh. Oh, we just determined that violating the constitutional limitations on government is against the constitution, so we're going to stop violating the constitution, now.
None of these idiots thought they were doing anything but violating the law for the past several decades. They just didn't care. And they still don't. And they won't. This big display right now is nothing but that - a display. At most, they'll throw out some "oh, gosh, we will put in regulations or stop it all together"... while they continue to do exactly as they please behind the scenes.
I disagree. American history is full of government actions that were later found unconstitutional and were abandoned and condemned. Think about slavery, women's voting rights, mistreatment of the Japanese during WWII, McCarthyism, segregation and the civil rights movement, and now finally marriage equality. These things unfortunately take longer than a few months to get shut down, but they do stop.
* The NSA imbroglio resembles McCarthyism in some ways.
* Segregation and civil rights are still significant issues in some parts of the country; the battle has simply moved away from "offical" fights into more indirect fighting using tactics like "school vouchers" and "redlining".
* Muslims and people of Arab descent are mistreated rather badly at times.
* Women's suffrage hasn't been in question for a while now, but there are certainly a lot of attacks against women in recent politics with significant attacks against abortion rights and women's healthcare in general.
* We don't call it slavery, but the prison–industrial complex has a LOT to answer for, and is a growing problem.
I am not saying that things are peachy. I agree with all of your examples. What I am saying is that less than a hundred years ago women could not vote and the official stance on that was that it's constitutional. Less than fifty years ago it was perfectly legal to pay women less than men just because they are women. It is now illegal.
The point is that things like what the NSA is doing are clearly illegal in my mind and I think 20 years from now our kids will look back and say "how did you let this happen?" but it will be made illegal. Will the spy agencies and over-reaching corporate entities continue trying to find a way to circumvent the new laws and the interpretations of the old laws? Absolutely. However, we will have made progress.
I guess this brings up the grand question: will we ever reach enlightenment enough to stop spying and oppressing our own citizens, denizens, visitors, and allies? I think it'll take a few centuries but yes. Eventually I think we will get there through lots of lessons learned the hard way.
You could not hide slavery, a woman's inability to vote, internment camps, segregation, or any of these other things.
Spying on your own people, however, is something that has always been hidden in this country except the times it has arisen to the public eye (think of the communism-witch-hunts of American citizens by the government and fellow citizens).
... only to retreat and be hidden again and forgotten again.
At best, these people believe it is an obligated imperative to spy on our own citizens in order to keep them safe after the sickening mandate congress and the American public gave them weeks after 9/11 and ever since. "They are scared and they demand their government protect them, so we are going to protect them, even if it means violating everything we stand for".
At worst, they believe they need to control the public for their own benefit. Be that to accommodate lazy police work and law-enforcement work or to facilitate further abuse of the public at large by politicians and aristocrats. My vote is for a little bit of "at best" for the more naive and less involved politicians and "at worst" for those further to the inside. After all, there is nothing about spying on lovers, potential love interests, collecting dirt and blackmailing and threatening journalists, activists, and fellow politicians that is anything but vile and self-serving. Oh, and don't forget its primary use - not as a terror-prevention, but as a tool to protect American "economic interests" (if you recall the speech a few months ago, he listed "terrorism" as the last concern, after protecting our energy supply and then economic interest).
So I lean toward the more malevolent intent.
Either way, they will continue with this mindset and the only thing anyone will accomplish is some public dressing-down of certain scape-goats while the whole spying machine retreats back into the dark and continues to operate in silence.
Quite simply, none of us will ever know if they have actually stopped or not. Even if they do. Which they won't. They are above the law. Our only possible recourse is the widespread utilization of security measures that we must find a way to turn into common-practice. To the point that your great-grandmother wouldn't even think of sending a birthday card to little Billy without encrypting it.
Even that requires some degree of faith that the unlimited spending machine of the US Government (or the combined governments of Five Eyes (https://en.wikipedia.org/wiki/UKUSA_Agreement), etc) haven't compromised its security. And assuming that utilization of such measures aren't simply outlawed (not an irrational concern, given that such security measures are -- or were a decade ago -- disallowed from inclusion in software for international distribution due to classification as a munition).
That's not quite true. You can hide spying when it's small scale, but we can certainly defund spy agencies. Currently the budget for the NSA is classified, but estimate at around $11 billion. Let's slash that to $100 million and watch these programs fall away.
I also do think that introducing harsher laws for this type of stuff is a good technique. Currently the NSA is above the law, but that can change. Basically, if anyone there is caught doing anything illegal, they should be held to a higher, not lower standard since they do have the ability to do much more damage. Then spell out what constitutes legal vs illegal spying.
Furthermore, states can exercise some rights over federal agencies performing these actions, such as withholding state resources (water) and making it illegal for businesses within the state to do business with violating agencies (electricity).
What I would most like to see is states assert the requirement that all wiretaps carried out within its borders to also require approval by a state judge and not just a federal judge. This two-factor auth would add another layer to prevent transgressions and abuse of warrants.
I'd say it was cowardly and poor leadership for Obama to get this report and still half-step his speech, if not anti-democratic. There's something he won't tell us.
Or that someone who was a 'constitutional expert', and ran on "Hope and Change" for two consecutive terms would risk nothing politically (in terms of re-election) to dismantle what is obviously an unconstitutional measure?
Indeed; it wasn't until very recently that I regretted re-electing him. Then again, I can't imagine Romney would've behaved any different. God damn two-party system.
If you allow for the possibility that the military is actually in charge of determining US foreign policy, we can conclude that Romney would have done the same thing.
After 6 months of anti-mass surveillance activism,I'd like to share an insight with the community.
The problem with the NSA is not just one or more illegal program but their operating culture and philosophy. The NSA has gone into the business of preemptively acquiring capabilities(subverted systems,large scale databases, zero days, malware, etc) and then marketing those capabilities to other institutions from law enforcement to foreign governments. The NSA leverages the classification system, deception and parallel construction to evade judicial and legislative review on how those capabilities are used.
This approach to covert actions means that there is no part of society that the NSA will not attack to stockpile a capability for some unspecified future use.
I would submit that MANY of the laws our Federal government passes are unconstitutional (10th Amendment). Yet they go and do it anyway and we go and vote in another worthless fuck who got there by pandering to us and promising more unconstitutional laws.
WE ARE TO BLAME! They may be the bullet that felled the murder victim but we pulled the trigger.
The text of the 10th amendment is this: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
I submit that nothing can be unconstitutional for violation of the 10th amendment that isn't unconstitutional for some other reason. There is no law that can be justified as an exercise of one of the enumerated powers that nonetheless fails for contravention of the 10th amendment, because any law that can be justified on the basis of an enumerated power + the necessary and proper clause is one that is "delegated to the United States by the Constitution" and thus, literally, not within the scope of the 10th amendment.
Take the healthcare mandate. You can't argue that the 10th amendment makes the healthcare mandate unconstitutional, because it was found to be a valid exercise of the taxing power, which is a power delegated to the United States by the Constitution.
The NSA has committed no crimes. As an organization, they've acted within the bounds of the law and done exactly what they were supposed to do. This watchdog report is saying that the law is not in the interest of the people and it should be changed. But until that happens, the NSA is in the right to continue with business as usual.
Our constitution prohibits ex post facto law. This means that someone can't be charged with violating a law that was not in effect at the time of the person's action. ie, if the the speed limit is lowered to 50mph on Tuesday, you can't be ticketed for having driven 55mph on Monday. This should apply to the NSA in the same way that it applies to citizens. We may not like the law, but we can't call them criminals, dictators or all around bad guys for playing by the rules as they were written at the time.
It's also important to note that the NSA currently has the support of the people and the people's representatives. If 80% of the country hated the law that allows blanket collection of business records then it would have been changed long ago. The issue is 50/50 at best among the people and much more lopsided in favor among members of congress. Changing the law will be difficult at this point, as it's supposed to be. The whole point of a democratic bureaucracy is that they are stable and slow to change. We can't routinely re-write laws that are disliked by 40% or even 50% of the people and lawmakers. In general, it's bad for business. It's difficult to plan for the future when a relatively small group of citizens can throw out the rules in a short time period.
If the NSA had some kind of effect on the life of the average citizen this law would be rescinded immediately. If that doesn't end up happening, it's going to take a lot more than personal interpretations of the constitution to get the federal government to give up capability and assets it spent a lot of time and money building. This law may change and the country may be better without it. If anything it will be a long time until the majority of people make up their minds or even form an opinion on this issue. Until then the NSA is going to what all of us do: pursue their goals while acting within the boundaries of the law.
> The NSA has committed no crimes. As an organization, they've acted within the bounds of the law and done exactly what they were supposed to do. This watchdog report is saying that the law is not in the interest of the people and it should be changed. But until that happens, the NSA is in the right to continue with business as usual.
From the article, quoting the report:
The program “lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value,” the report said. “As a result, the board recommends that the government end the program.”
Now, you could mention that two out of the five representatives disagree with the idea that the program is illegal. That would be fair enough. Saying that the report finds nothing wrong law-wise with the program isn't.
> This means that someone can't be charged with violating a law that was not in effect at the time of the person's action. ie, if the the speed limit is lowered to 50mph on Tuesday, you can't be ticketed for having driven 55mph on Monday.
No doubt. But if you were to be caught red-handed doing warrantless wiretaps, on the other hand, retroactive immunity would automatically follow.
> In general, it's bad for business. It's difficult to plan for the future when a relatively small group of citizens can change how things work in a short time period.
I don't know what ordinary US citizens think about having their privacy violated and have the head of the NSA lie about their activities. You may well be right about them not caring, it's certainly the case here in Europe. But saying that changing the law would "harm business" is grotesque. I'm pretty sure you'll be hard-pressed to find any support for the activities of the NSA in the US IT sector, short of security/defense suppliers, who bloody well know which side of the bread is buttered. The rest is scared of losing non-US customers and of the EU implementing stringent laws about transferring data outside of the EU borders.
> Now, you could mention that two out of the five representatives disagree with the idea that the program is illegal. That would be fair enough.
Not based on the article, which said they rejected the majority's conclusion that the program was illegal because they believed that legality should have been left to the courts and not addressed by the board, which does not mean that they disagreed with the board's assessment on legality. (I'd argue that it suggests, but does not mean, that they did not like the fact that the board reached the conclusion, but even then could not actually argue against it.)
Ms. Brand wrote that while the legal question was “difficult,” the government’s legal theory was “at least a reasonable reading, made in good faith by numerous officials in two administrations of different parties.”
> The NSA has committed no crimes. As an organization, they've acted within the bounds of the law and done exactly what they were supposed to do. This watchdog report is saying that the law is not in the interest of the people and it should be changed.
No, the watchdog report is saying that the actual program was not within the statutory legal basis on which the Executive Branch, in the past two administrations, attempted to justify it, and, beyond that, is not within the bounds of the Constitution.
> This should apply to the NSA in the same way that it applies to citizens. We may not like the law, but we can't call them criminals, dictators or all around bad guys for playing by the rules as they were written at the time.
We can call them whatever we want (see US Constitution, Amendment I). Further, the report is saying that the program was not within the laws in place at the time, both the statute laws governing surveillance (and, since there are criminal laws for that, outside of the statutory allowance, the conclusion that, if the report is correct, they are criminals is not unjustified) and the fundamental laws limiting government power in the Constitution (from which, again on the assumption the report is correct, justifying the description as dictators, or at least agents of those usurping power in the manner of dictators).
And "bad guys" is a conclusion that doesn't require a violation of the law to support, since something can be bad without being illegal.
> It's also important to note that the NSA currently has the support of the people
> If 80% of the country hated the law that allows blanket collection of business records then it would have been changed long ago.
Aside from the mistake of assuming that the US is a direct democracy where public opinion is immediately and infallibly reflected in policy (which is decidedly not the case), this errs further in arguing that if there was current widespread opposition, that opposition would cause policy change in the distant past ("long ago"). This is an astounding claim of retrocausality, and is simply implausible.
>It's also important to note that the NSA currently has the support of the people and the people's representatives. If 80% of the country hated the law that allows blanket collection of business records then it would have been changed long ago.
That's ingenious. We didn't know about these secret courts. We didn't know the extent to which we were being spied on. The extent to which laws were being manipulated. Obama's administration even claimed that their interpretation of these laws and therefore what they could do with them were too vital to national security to let us know!
Congress wouldn't have had hearings where Keith Alexander had to explain and defend what he was doing if we already knew what he was doing. These wiretap laws also run contrary to an older Supreme Court ruling. You know how the government got around that? Bush's administration claimed that Congress told him to use military power and he considered the NSA a military force so they could ignore the Supreme Court ruling. The FBI did the same. These are twisted versions of laws we allowed that we weren't even allowed to know about. Fuck secret interpretations of laws.
Well, no, its just false. The NSA surveillance is overwhelmingly opposed by the public, but...
> We didn't know about these secret courts.
There was nothing secret about the fact of the existence of the courts are what their job was, they were an overt part of the system from the original adoption of FISA.
They aren't "secret courts" whose existence was concealed, they are courts whose proceedings are secret.
> "As an organization, they've acted within the bounds of the law and done exactly what they were supposed to do."
Do you get paid to write this stuff, or do you actually believe it? It is obvious that the NSA has been creatively interpreting the law to acquire more and more data on innocent citizens. This report says so. The President's panel said so too, albeit a little more politely.
> the NSA currently has the support of the people and the people's representatives... The issue is 50/50 at best among the people
Know what? Slavery had the support of the people. Segregation had the support of the people. Anti-miscegenation laws had support of the people. Opposition to gay marriage has the support of the people. When it comes to rights, it doesn't matter if the majority of the people support it or not; rights are rights.
And, by the way: members of Congress themselves have asked for help from the Snowden documents[1], because the NSA has not been truthful with them.
> If 80% of the country hated the law that allows blanket collection of business records then it would have been changed long ago.
Source?
If one thing I've learned from this whole thing is that the general public holds a very dangerous belief in some high-functioning state of representative democracy.
A combination of crippled public dissent and (state-supported) public ignorance makes me highly question a strong majority of opinion would make a difference in real-life politics. Let alone active protest among a minority.
This isn't SOPA where it's people against lobbyists and special interests. This is against internal government power. The stakes are much higher.
>The NSA has committed no crimes. As an organization, they've acted within the bounds of the law and done exactly what they were supposed to do.
Even if the "acted within the bounds of the law" that would be no better than saying "the SS committed no crimes". They too, after all, acted within the bounds of the law at the time. The law is not some holy scripture, it can be criminal in itself, especially if crooks like G.W. Bush and co help create it.
But even that's not true. The NSA broke surveillance and privacy laws thousands (if not millions of times), and even had personel lie to the Congress. That's as bad as you can get.
And they pissed all over international laws and agreements (somehow Americans forget those also exist).
The "just following orders" excuse has been proven to be bullshit. You are right on in bringing up the SS and the Nuremberg Trials when people try to spit the 'just following orders/the law' excuse or any derivative thereof.
Not comparing the NSA to Nazis, but the excuse doesn't work, its been prosecuted many times.
Can we stop with the nonsense "they have comitted no crimes" line? They have violated orders by FISC and overstepped their boundaries in many cases before the FISC, then lied to it.
So of course they comitted crimes, it's just that the punishment (or due process) is nonexistant.
Or for lying to congress during a hearing and then admitting to it by saying they wanted to use the 'least untruthful answer' (which is false on its face because the truth is the least untruthful answer.) But c'est la vie power protects power.
"If 80% of the country hated the law that allows blanket collection of business records then it would have been changed long ago."
Even if people hated some laws like they, they can get passed by putting something else in the law like "anti child porn" language, and call the bill "protect the children from abuse act", which just happens to have language permitting unrestricted data monitoring provisions. Try to vote against that bill? You're in favor of child abuse?
Over the top example, slightly, but even in this case, it presumes that people even read the bills before voting on them, which we all know doesn't happen as often as it should. Trying to get past that problem requires a far more educated and engaged population.
The US and its opinions are not the whole world, and are not where American tech companies get most of their revenue, which (vide IBM) has taken a big hit. The US has done wrong, and is being punished by having the US tech industry become provincial. Our remaining markets will be among customers in the Five Eyes nations, because nobody believes our products are not penetrated by spy agencies.
That's a real crime, and it will affect American people in the coming years in highly visible ways. It is a real and present crime against the industry many people here work in. It will affect how, at least, governments and industries who have an interest in not being spied on operate, and perhaps ordinary people, too.
You have stated the position for putting our fingers in our ears and relying on the public's apathy. I'm pretty sure the big enterprise customers in BRIC/MINT markets are not apathetic.
"The NSA has not yet been investigated, tried or convicted of any crimes. However, it's intelligence director, James Clapper, did commit perjury, but it has yet to be investigated and he has yet to be tried and found guilty or innocent by a jury of his peers."
According to the article, three out of five members of the board held the opinion the program was illegal. That's a little bit different than what the title of the article suggests.
I really want all of this to go through the Supreme Court before Congress decides either way on it, because I worry they will pass some laws that make this only slightly less awful, but at the same time make all current lawsuits irrelevant.
If there's one lawsuit say regarding the Patriot Act, and the Patriot Act get repealed and then replaced with something else in the meantime, does the lawsuit still continue, for example?
But even if it does, and let's say it says it's completely unconstitutional and whatnot, that still wouldn't apple to the "new law" that is slightly less awful, would it? It would require a new lawsuit against those specific provisions, right?
So this is what I'm worried about, and why I'd prefer all this goes through the Supreme Court before Congress starts passing new surveillance laws, because then they'd have a much lower chance of passing something that's already been declared unconstitutional in a new law.
I guess I don't see how what the NSA is doing would not be unconstitutional and illegal. I don't care about the mechanics of how it's actually done but wiretapping requires probably cause and a warrant. Fishing expeditions are not legal. The fact that it's not listened to directly by a human but instead stored for later processing has nothing to do with the fact that it's wiretapping. Creating a secret court that is a rubber stamp of approval for broad warrants does not make it legal.
I actually wonder what would happen if the government was to prosecute someone where the only evidence they had was obtained via this illegal wiretap. Would the evidence gathered this way actually hold up. I know the point of this is not the due process but to detect terrorist plots, but the legal hypothetical is interesting.
I'm OK if they want to look at my data. I just want to know who and when they look at it and how much they are going to pay me for it. 1,000 Bitcoin gets you everything I have data-wise.
I think this deal is poorly thought out since, coincidentally, all of your bitcoin wallets are in fact data. I'll happily pay whatever sum of BTC into a wallet in exchange for that wallet + some more data. Nothing but gain.
It's great to have another voice speaking up against mass surveillance. Still -- you're telling me these agencies are in all likelihood committing crimes against the American people, but we need to be careful not to hurt their feelings?