by Doctor Science
(who’s back to being unable to log in under that name)
I grew up in the 60s and 70s, which means (among other things) that I tend to distrust the benevolence and competence of the “three-letter agencies” (FBI, CIA, NSA, KGB). That is: I tend to assume that they’re up to not much good, and that what they *are* up to they do poorly. I have more respect for the FBI than the others, because I can see that they *do* do jobs they can talk about and that are worth doing, some of the time. But I don’t know if my trust will ever recover from growing up during the reign of J. Edgar Hoover
Since Sept.11th, my always-shaky confidence in the intelligence agencies has dropped even further. What I see:
- Al Quaeda was unstopped not because of failure on the part of the agencies, but because there was no political interest in stopping them.
- CIA/NSA, at least, let themselves be used as political tools to argue for the Iraq War.
- The fact that the agencies didn’t go *ballistic* when Valerie Plame was outed persuaded me that they think they *ought* to be political tools.
- It took the FBI 8 years to identify the anthrax terrorist, and they conveniently fingered someone who’d committed suicide years previously. Incompetence or political motivation? You be the judge!
- The CIA deliberately undermined the effort to exterminate polio to help track down Bin Laden. As far as I’m concerned, this makes them baby-killers aforethought.
- Security theater in the TSA, all in the spirit of covering one’s ass.
- Massive, untrammeled surveillance of everyone and everything, just because.
Now, I’m told that this is necessary to “keep us safe”, and that I should trust the people in charge. But you know what they say: Trust, but verify. So how do I verify?
Remember, I’m a scientist, and my null hypothesis is always: nothing non-random is happening. Is there any way for an observer without high-level access to tell whether the intelligence agencies are actually accomplishing anything? If so, is there any way to tell whether their accomplishments are outweighed by their costs?
The costs of the intelligence agencies seem to be quite high. Even their literal dollar costs are, in the case of the U.S., immense (tens of billions annually). But this is probably dwarfed by the costs in terms of the ways secrecy is always abused, to cover up damaging incompetence and corruption. On the other hand, the controversy over the value of intelligence agencies, at least among those who seem to be making a serious attempt to look at what evidence we have, is between those who think they’re slightly useful and those who think that they are useless. Everything we don’t know about them would have to be quite different from, and vastly better than, everything we do know about them for the intelligence agencies to be worth it. Everything we know about how people behave when they have no oversight and can conceal all of their corruption and mistakes suggests that, on the contrary, the stuff that is more secret is almost certainly worse rather than better. So the probability that the accomplishments of the intelligence agencies could outweigh their costs seems negligible to me.
One example I like to point out; during the cold war, the Soviet Union was much better at keeping secrets from the United States than the U.S. was at keeping secrets from the Soviets. But the Soviets decisively lost the cold war. It isn’t really controversial that one of the biggest contributors to the Soviet collapse was corruption. Since as noted, secrecy enables corruption, I think there’s a good case to be made that the Soviet skill at keeping secrets was actively counter-productive, contributing to their inability to compete with the less secretive West.
There is really no way for anyone to determine precisely whether the intelligence operations are effective or not because they depend on events of unknown but very low probability. The odds of another 9/11 are presumably low since there has been only one in a long history of “terrorism” directed towards the US. 9/11 depended on a unique security flaw, the policy of cooperation with airplane hijackers, which has been discontinued. Since the likes of Bin Laden are not dummies and are aware of the surveillance and can easily devise another 9/11 without using electronic communication, the probability of detection of such a thing is probably very low also. The probability of detection of less-competent attacks is higher, but such attacks tend to be less dangerous.
There was also Oklahoma City, and I suspect the total danger from such domestic attacks is at least as high as from foreign attacks (more low and unknown probability). But supposedly the programs are not directed at US citizens, so they would not stop another Oklahoma City, even if such a plot used electronic communication.
The most effective anti-terrorist measure is probably still infiltration.
i’m a little surprised there hasn’t been a plane-as-missile attack somewhere else in the world. airport/on-board security isn’t as strong elsewhere as it is in the US & Europe.
” Incompetence or political motivation? You be the judge! ”
Why can’t it be both?
Great post overall, DocSci. These are the very same questions that I ask. And I think the answers are telling…
‘We can’t tell you. We stopped 50 attacks. Maybe it was only one. Maybe that wasn’t really an attack.’
‘We can’t tell you. We are certainly not spying on X. We might be spying on X. We are, but we have oversight. There was no oversight.’
If the next 9/11 was stopped dead in its tracks, there would be news conferences, a parade of captured terrorists, filings in courts, etc etc. There would be no benefit to concealing a success like that, political or otherwise.
Everybody would be stepping up to take credit.
It hasn’t happened, despite billions spent on security theater and eroding liberties. Especially after Snowden, if the government had dramatic successes to justify their actions, they would have revealed them.
They didn’t, so I’m left assuming they have nothing except a colossal waste of money and privacy.
Or as you put it: the null hypothesis.
i’m a little surprised there haven’t been more 9/11-style attack elsewhere in the world. all airport/on-board security isn’t as tight as it is in the West… is it?
I have a real problem with including TSA in the category “intelligence agencies.” They have no apparent function in gathering information. And the amount of intelligence in evidence, either in TSA’s operation or even in its existance, is nil.
cleek:
“i’m a little surprised there haven’t been more 9/11-style attack elsewhere in the world.”
I’m not surprised. 9/11 ended the “cooperate with hijackers” concept pretty soundly.
Effective weapons are difficult to get past basic screening (eg metal detectors), and unless you have a whole host of suicide hijackers, the odds aren’t going to be in your favor on aircraft that seat more than 100 people.
A lot of things had to line up for the terrorists to pull off 9/11.
Personally, I think the best way to stop terrorism is to not blow up weddings and funeral processions in other countries. At the end of the day, terrorism requires people that are willing to kill and die for your cause. I’d speculate that those with happy families are less likely to do either.
cleek: all airport/on-board security isn’t as tight as it is in the West… is it?
In my experience, flights to/through the US follow US standards for security (liquid restrictions & screenings & whatnot), but elsewhere…yeah, not so much.
I was on a domestic flight within Australia a couple months ago. They had passengers walk through a metal detector (without restricting liquids, removing shoes, etc)—but the kicker is that not once did they check ID (at check-in, at security, at the gate, or boarding). It was fascinating.
On why there haven’t been more 9/11 style attacks, I thought the research on terrorists generally suggested that the most likely explanation is that there just aren’t very many terrorists motivated enough to carry out such attacks.
“aren’t very many terrorists motivated enough to carry out such attacks”
That’s one of the things that needs to fall into place. You need a large pool of people motivated to do it, in order to get a group of competent individuals. You need funding. You need training.
It’s hard to pull off something like that.
It’s also hard to defend against it. There will always be some soft target that a motivated terrorist could hit. I’ve seen no indication that the expensive and invasive security/intelligence apparatus offers good marginal increases in security.
You’ve setup a question framed in terms of a cost-benefit analysis but we can’t answer that until we know what your values are.
For example, consider a policy to harvest organs from developmentally disabled adults in state care to save the lives of powerful and important but ailing people in our society. From a cost-benefit perspective, this policy has benefits (our greatest ailing scientists, military leaders, CEOs, etc. living when they would otherwise die) and very low costs (perhaps even negative costs: DD adults don’t contribute much to GDP and are a drain on society’s resources). So the cost-benefit analysis say “whoohoo! time to kill some DD adults and harvest some organs”. But this policy is completely monstrous and unspeakably evil. You can’t easily encode values like “the individual right to bodily integrity” into a CBA.
From what I can tell, the NSA’s activities are simply incompatible with the fourth amendment. Their mass surveillance is exactly what the drafters of the 4A were trying to forbid: a general warrant that allowed the government to surveil anyone without any individualized suspicion. If that’s true, then the CBA is irrelevant: we cannot have an NSA engaging in this sort of mass surveillance no matter how great the benefits or how small the costs.
I’ve got a few questions about what you know:
Al Quaeda was unstopped not because of failure on the part of the agencies, but because there was no political interest in stopping them.
What does this mean? Do you think that if the director of the CIA knew enough about the 9/11 plans to stop them that he wouldn’t have stopped them? Or that the CIA didn’t really care one way or another?
CIA/NSA, at least, let themselves be used as political tools to argue for the Iraq War.
Is there a cite for this? What legal authority do you think the CIA or the NSA has to publicly declare that the President is lying? And didn’t many CIA analysts push hard against the rush to war?
The fact that the agencies didn’t go *ballistic* when Valerie Plame was outed persuaded me that they think they *ought* to be political tools.
What legal things do you think the CIA should have done that they did not do?
It took the FBI 8 years to identify the anthrax terrorist, and they conveniently fingered someone who’d committed suicide years previously. Incompetence or political motivation? You be the judge!
I haven’t followed this case, but has it occurred to you that maybe some criminal investigations are really hard and beyond our ability to crack? I mean, sometimes patients die, but that doesn’t necessarily mean that the doctors involved were incompetent. If your standard of incompetence is that the FBI has to succeed 100% of the time in all high status cases, then I don’t think the FBI can ever be competent.
Finally, let me pose a thought experiment: has the NSA saved millions of lives by reducing the number of wars the US engages in? I mean, the US government has a long history of starting random pointless wars that kill millions of people. But what if it spied on the rest of the world much less and had much worse signal intercept capabilities? Would the US government engage in even more belligerence? If the US government had much better intelligence on Iraq or Vietnam, would those wars have happened? And if they didn’t happen, wouldn’t millions of lives have been saved? Hasn’t the availability of MRIs and CT scanners prevented many many exploratory surgeries? I’m not sure it is even possible to answer most of these questions.
Having said that, I think the CIA Directorate of Operations should be shut down and most NSA activities in the US should be disbanded.
I think the CIA Directorate of Operations should be shut down and most NSA activities in the US should be disbanded.
Seconded.
“Their mass surveillance is exactly what the drafters of the 4A were trying to forbid: a general warrant that allowed the government to surveil anyone without any individualized suspicion.”
I’d agree, but not everybody does. Which is where the cost/benefit comes in.
I’m more than willing to put the 4A discussion aside for now and settle the matter on the utter lack of useful results for such large expenditures.
I’m likewise willing to just say it’s grossly out of line with the Constitution and put aside the C/B analysis.
Both are valid and dire criticisms, in my mind. I’m all for people listening to either or both.
WJ – “I have a real problem with including TSA in the category “intelligence agencies.” They have no apparent function in gathering information. And the amount of intelligence in evidence, either in TSA’s operation or even in its existance, is nil.”
And yet the TSA has an Office of Intelligence and Analysis, gathers and analyzes intelligence, and is integrated into the larger Homeland Security Intelligence Enterprise. It’s heavily imbricated within the rest of our complex of institutions listed above.
Their mass surveillance is exactly what the drafters of the 4A were trying to forbid: a general warrant that allowed the government to surveil anyone without any individualized suspicion.
This is not what the drafters of the 4th Amendment were trying to forbid at all. The drafters of the 4th Amendment were trying to forbid police officers (or government agents) from breaking into your home or your locker, and messing with your stuff. They would have been fine with police following people around, reading the outside of their mail while it was in the post office, and all manner of things that police (and private investigators, and people who are curious about other people) do all the time.
The Fourth Amendment has been interpreted by the courts for many, many years. It was fairly recent in our history that the courts even thought about electronic communications. It was even more recent when an “expectation of privacy” was found in an extremely limited set of electronic communications.
It’s clear (to me anyway) that most people in the country want their electronic communications to be private, and free from government surveillance (even the “outside of the envelope” apparently). But it’s a huge stretch to say that, all along, the founding fathers were against this kind of surveillance. They may have been against reading people’s email without a warrant (if they’d had email), but whether they would have been against seeing call data is a very open question. Sometimes police have to surveil (in a limited way) in order to obtain probable cause to get a warrant. That has always been a police prerogative.
Following someone on the street is an example of something that’s perfectly legitimate, and always has been. Third party records, in the way that they have been collected, have also been held to be fair game. The problem is not that the NSA is doing something that is blatantly unconstitutional; they just have technology that’s more efficient than had been anticipated by anyone before the technology revolution. The NSA is doing something that people don’t like, and that most people think is a breach of their privacy. That behavior could be changed legislatively, or by amending the Constitution, or it could be changed by a broader interpretation of Fourth Amendment protections. But it’s not in any way clear that it violates the Constitution, most certainly not according to some view of the founders’ intent.
Turb – do you not think that there is a substantive difference between assigning an investigator to look at the outside of a physical envelope for traffic analysis from a particular person for whom probable cause exists, and gathering and sifting that same information from pretty much everybody regardless of probable cause just because technology makes that intelligence gathering practical and economical?
“Remember, I’m a scientist, and my null hypothesis is always: nothing non-random is happening.”
This is a reasonable default hypothesis concerning the natural, inanimate world of physics and chemistry, and orbiting bodies, and all things which lack intelligence and motive. I think it is not so good a default hypothesis concerning the actions of human beings.
My default hypothesis for organizations of people possessing both coercive powers and a determination not to be subject to transparency, is that anything I can’t see is corrupt.
do you not think that there is a substantive difference between assigning an investigator to look at the outside of a physical envelope for traffic analysis from a particular person for whom probable cause exists, and gathering and sifting that same information from pretty much everybody regardless of probable cause just because technology makes that intelligence gathering practical and economical?
I think there are big differences between those two cases. Do you have a more concrete example in mind?
“…. anything I can’t see is corrupt.”
I know how you feel.
I think that is the NSA’s motto, by the way.
Their organizational insignia seems to suggest the same, what with the octopus and all.
Obviously, no one would want either you or me running the government, given our assumption that everything we can’t see is suspect.
My rule of thumb is that individuals can account for everything in the universe except themselves, which also goes for the human race as a whole.
We are not transparent to ourselves.
Ever take a look around in a four-way mirror in the changing room?
Who is that person?
People are thinking about themselves and their relationship to the world in a different way than they did in the past. It’s interesting that friends of mine post on Facebook pictures of every new cocktail they try. Some post maps of their walks. Pics of kids (even substituting for their own identity). All of this information is forwardable, and can be known to everyone.
This NSA scare mongering seems awfully weird to me, considering all of this. I have a Facebook account but rarely post. I’m never sure who, exactly, among my many friends (some of whom I don’t even know) will appreciate my political rants, my pictures of pets, etc. I used Facebook to complain about something to my House Representative, and all of the sudden I got likes from people I had no idea would have seen the note. It was all good, because I didn’t mind that my views were known, but still … more public than I’d realized.
Sure, if people educate themselves about communications of various types, maybe they can find the private shell that they seek. For now, I’ll find my privacy in face-to-face communications (hoping that there’s no webcam around), or take my chances with phone calls, email, social media, and even writing letters or a journal. People peek.
This is not what the drafters of the 4th Amendment were trying to forbid at all.
I tell you what: let’s see what the courts think. Let’s open up the NSA data to every US Attorney and every District Attorney in the country. Let’s start putting murderers and drug dealers and organized crime bosses in prison; let’s start finding people who have taken children and run. We can do all that, if only some prosecutors are willing to stand before a judge and say “this NSA mass surveillance, it is totally compatible with the 4A”.
But of course, that’ll never happen because no prosecutor in this country thinks that argument will fly in a court of law. That’s why we’re leaving murderers and child abusers to run free. Because this mass surveillance system is totally completely illegal and will crumple the minute any prosecutor mentions it before a judge. That’s why there’s zero push whatsoever to make this data available to prosecutors or police departments or the FBI. Americans are scared senseless over crime but we’ve all decided that this treasure trove of data can never be used for prosecuting crimes because….well why exactly do you think that is sapient?
Americans are scared senseless over crime but we’ve all decided that this treasure trove of data can never be used for prosecuting crimes because….well why exactly do you think that is sapient?
Well, first of all, I’m not scared senseless over crime.
Second, this treasure trove of data has been collected, but can only be used according to the statute (passed by Congress) under which it was collected.
So opening up the NSA data isn’t on the table. Let’s deal with the law and the facts as they exist, which is what is being litigated currently in the courts, and where there is a conflict among the circuits.
The drafters of the 4th Amendment were trying to forbid police officers (or government agents) from breaking into your home or your locker, and messing with your stuff.
The 4th Amendment was a response to writs of assistance, which served as general warrants allowing agents of the Crown to search anything, anywhere, anytime, without specifying in advance what was to be searched for and why, and which did not expire until some months after the death of the King who issued them.
The remedy was to require police to specify, in advance, what was to searched, and why, and “why” had to be justified by probable cause that a crime had been committed.
For electronic communications, the content of the communication has for some time – at least since Katz v. United States, 1967 – been considered to be protected by the 4th Amendment, while routing information has been considered to be outside the protection of the 4th. Routing information has, however, been considered to be protected by statutory law since at least 1986, see the Electronic Communications Privacy Act (ECPA). The ECPA also explicitly extended the protections that were in force for phone calls to email and other computer-based electronic communications.
Content is protected under the 4th Amendment, routing information protected by statutory law, for phone calls, email, internet searches, and any other electronic communication, computer-based or not. All since at least 1986, with protections for phone and other non-computer-based communications extended back decades longer than that.
The idea that the founders would be perfectly fine with a government agency maintaining a record of every phone call and electronic communication made by every individual in the United States, to be stored indefinitely for them to peruse at their leisure, boggles the mind.
Well, first of all, I’m not scared senseless over crime.
That’s good. Unfortunately, compared to peer nations, the US has an extraordinarily high rate of imprisonment and an absurdly aggressive criminal justice system. Being tough on crime is vitally important for politicians.
So opening up the NSA data isn’t on the table.
Says who? Congress passes new laws all the time. Do you think that Congress is uninterested in bringing murderers to justice? That Congressman don’t care about finding child predators? That putting drug cartel leaders in prison would be political suicide?
The idea that the founders would be perfectly fine with a government agency maintaining a record of every phone call and electronic communication made by every individual in the United States, to be stored indefinitely for them to peruse at their leisure, boggles the mind.
Your very generalized statement as if it were black letter law is what is mind boggling.
The Founders didn’t have any idea about phone calls or electronic communications, so trying to divine their opinions about those technologies is really beyond the pale. You and Scalia need to have a seance.
I would suggest, before we give our amateurish opinions on the Constitutionality of the NSA program, that the courts be able to state their interpretation. There are two eminent federal judges who disagree, and I’m guessing that we’ll hear even more authoritative judicial voices before it’s over. And although we’re really pretty smart, and can read wikipedia, they will have considered extensive case history and the briefs of eminent lawyers in order to pass judgment.
I can see the campaign commercials now: “Hi, I’m Representative X, and I have the power to vote for a law that will put murderers and drug kingpins and rapists behind bars, but I won’t do that because I don’t think Americans deserve to be safe from criminal predators. So vote for me for re-election!”
Don’t the children of murder victims deserve justice? I guess not, at least not if it requires Congress to pass a law.
sapient: I would suggest, before we give our amateurish opinions on the Constitutionality of the NSA program, that the courts be able to state their interpretation.
First time on the internets?
“So opening up the NSA data isn’t on the table.”
I would run that concept by the DEA. They seem to be utilizing NSA (and other TLA) data.
For some reason, they are trying to avoid disclosing the source to the data by making up a “parallel construction” or fictitious reasons why they engaged in searches.
http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805
This is, no doubt, exactly what fair trials are based on.
Ugh:
“First time on the internets?”
Heh.
Maybe you, Turbulence, and you, Ugh (whose comments I never really get, sorry), should check out Judge Pauley’s opinion. And you, too, russell.
Instead of hanging on Katz v. United States, you might want to see what he says about Smith v. Maryland. And the FISA act, and its amendments.
You know, Wikipedia is a great thing, but it’s not the law. Not to say that the appellate courts won’t go with Judge Leon, but don’t bet on it. At least, I’m not going to.
“The Founders didn’t have any idea about phone calls or electronic communications, so trying to divine their opinions about those technologies is really beyond the pale.”
I disagree with this statement.
The founders didn’t have ideas about a lot of things. Otherwise the constitution would be a rigorously detailed compendium of laws regarding every possible situation.
What they did have ideas about was the importance of individual rights, the importance of democratic representation, and the importance of limiting the powers granted to the government.
As a result, the constitution requires interpretation in order to apply to the varied legal problems we face. I don’t think its an unreasonable exercise to try to interpret the constitution, and through it, the thoughts of the founders.
Hey, that’s pretty much what the courts (and various internet amateurs) do.
Some people, myself included, consider that a reasonable reading of the 4A would prohibit such broad data collection efforts.
thompson, we’ve discussed the article you linked to awhile back. How information is used in a particular case is certainly subject to scrutiny. That has nothing to do with the NSA program to collect information to begin with. There are all kinds of programs that are perfectly legal, but can be abused. We’re talking about the NSA collection of data, not any alleged abuses of that program.
Also, for those interested in Judge Leon’s opinion:
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0851-48
And an analysis of the dueling opinions by Eric Posner that is quite enlightening.
sapient:
The government is claiming is isn’t an abuse for one.
Second, you said “So opening up the NSA data isn’t on the table.”
And its pretty clearly on the table. Since NSA data is currently being used by other agencies.
Finally, I’m unclear on a legal theory that would rule out discussing the impact of law, including how it may be abused, in the discussion of the constitutionality of the law.
If you listen to 4A case arguments before the SC (I’d highly recommend listening to SC oral arguments when you can, very informative and entertaining), potential abuses are regularly discussed.
The 4A makes no sense if you can’t consider potential for abuse.
Why wouldn’t I want police to have every possible tool during the investigation and prevention of crime?
Because they will abuse it.
Yeah, thompson. “The government is claiming is isn’t an abuse for one.”
Just like Ugh – I don’t really get what you’re talking about.
And, yeah, I listen to Supreme Court arguments when I have a chance. I’m a lawyer, and I enjoy it and get it. Thanks for the tip.
Anybody can abuse anything. Abuse is usually a crime. We prosecute abuse.
Parents sometimes abuse children; therefore, people can never be parents.
People sometimes embezzle funds; therefore, people should never be put into a position of trust.
Etc. Your premise is dumb, thompson.
And an analysis of the dueling opinions by Eric Posner that is quite enlightening.
That’s a very interesting analysis: it was published three weeks ago, but it only covers one small program that comprises a tiny fraction of the NSA spying on Americans. Is there a reason that the best defence you can point to pointedly ignores almost all the programs that the NSA uses to spy on Americans?
Actually, the analysis isn’t that interesting and even regarding the one single metadata program with which it concerns itself, makes no sense. Posner goes on at length about how there is no real expectation of privacy whenever information touches a third-party and also goes on about how useful all this data is for investigating crimes. So why not use this data for stopping crimes? Posner is silent. He’s super interested in how useful this data is for investigations and then…nothing. I guess it is not that useful. If there is no expectation of privacy for metadata, then why don’t we use it for criminal investigations?
Why, as thompson so astutely points out, do we even bother with parallel construction? Are DEA agents just bored and looking for ways to waste time?
We prosecute abuse.
No we don’t. Show me a list of NSA staff who’ve been prosecuted for abuse.
I would suggest, before we give our amateurish opinions on the Constitutionality of the NSA program, that the courts be able to state their interpretation.
Physician, heal thyself.
You know, Wikipedia is a great thing, but it’s not the law.
This topic is of particular interest to me, as are most of the civil rights issues that were raised when USA Patriot Act was passed.
I wanted to understand what was what, so I printed out the text of the USAPA, as well as a number of CRS articles on the relevant issues, as well as a number of the better analyses of the law that were available in various print publications, and I worked through the US Code to see what was changed and why.
Black letter, chapter and verse.
Then I familiarized myself to the best of my ability with the case law by reading summaries of the relevant SCOTUS and other cases.
All in, it was a few hundred hours of personal research. It was important to me, so I spent the time.
My wife is a very, very tolerant and forbearing woman.
IANAL but as best I can tell you are not particularly well informed on this topic. If you want to make substantive responses to what I or anyone else says, I invite you to do so.
If you want to be a pissy sarcastic asshole, you can kiss my hind end.
Thanks.
The relevant law right now as to the NSA programs and their constitutionality are the two district court opinions that have been cited.
Kudos to you, russell, for reading up, and putting in time. I too have read about electronic privacy, and other matters regarding new technology that the EFF has been concerned about. In fact, I’ve done so since the 1990’s, and I’ve attended presentations by EFF representatives, and other Internet security and privacy people because it had to do with my work. In fact, I was briefly acquainted with Marc Rotenberg, of the Electronic Privacy Information Center regarding some of the writing he did relating to electronic privacy. The fact is, the law is not cut and dried on these issues, because it hasn’t kept up with the technology, which is why there are two conflicting district court opinions about the constitutionality of the NSA collection of data.
Posner’s article suggests (correctly) that Pauley’s opinion about the NSA collection of phone data is correct as to the current law, and that Smith v. Maryland is the controlling case. He also concedes that people are nervous about the implications of that decision when so much information can be ascertained from looking at the data that can currently be collected, so the appellate courts (including the Supremes) may side with Leon, and overrule or ignore Smith.
The fact is, I think the NSA program could easily be abused, and that it needs more oversight. However, the founding fathers didn’t know anything about the Internet or electronic communications, and the “expectation of privacy” when the Bill of Rights was drafted mostly had to do with people’s bodies, their homes, and their physical effects. The concept of electronic communications didn’t exist, so we, the twenty-first century folks, basically have to figure out ourselves where to draw the lines. I’ll be perfectly happy if the Supreme Court (or even the appellate courts) side with Judge Leon, but I’m certainly not counting on it, because it isn’t a foregone conclusion, as you seem to believe it is, despite the patience of your neglected wife. We cannot know what the people who drafted the Fourth Amendment would have thought. Period.
And, no, Turbulence, it’s late, and I don’t care to go through a laundry list of everything I’ve read about what the NSA may or may not be doing with cell phone and internet data that it collects. We all know that individual people commit all kinds of abuses, and that some people aren’t held to account for it. People commit abuses in nursing homes and institutions caring for the disabled. Should we destroy the institutions? No, we find the people who commit abuses and deal with them appropriately, including firing or prosecuting them. If there are systemic abuses, we change the system. In the case of the NSA, I’m quite sure Congress can amend the Patriot Act. People here want to reorganize the CIA and disband the NSA – go to it. But quit pretending that you’re channelling the Founding Fathers.
sapient:
“Etc. Your premise is dumb, thompson.”
I certainly agree the “Parents sometimes abuse children; therefore, people can never be parent” premise is dumb.
But its not mine.
My “premise” was that its unproductive to discuss a constitutional amendment that was crafted to prevent governmental abuse without including potential government abuse.
In support of this, I pointed out that those sort of practical concerns are often discussed during 4A oral arguments at the SC.
In support of this, I pointed out that those sort of practical concerns are often discussed during 4A oral arguments at the SC.
Discussed at dinner parties too. But the discussion isn’t the law.
The law is the decision that’s handed down, and we haven’t had any kind of decision stating that the NSA is doing anything that’s unconstitutional.
sapient:
“Bill of Rights was drafted mostly had to do with people’s bodies, their homes, and their physical effects.”
I noticed you didn’t include “papers”, which included written communication between individuals, datebooks, journals, business statements? Don’t you think its reasonable to draw an equivalence between “papers” and the electronic communications of today? If they couldn’t search a datebook without cause 200 years ago, why can they search phone logs now?
“…so trying to divine their opinions about those technologies is really beyond the pale”
Only because you’ve managed to confuse method with purpose. It doesn’t matter what they would have thought of the method, because the thing they were trying to protect was the purpose.
The Founders felt that government access to citizens’ personal communications and records, aka “papers” in the original parlance, required the consent of the judicial branch, probable cause, and particularity. It’s right there in the original document.
Now suppose there were no such thing as email or telephones, but all the network-analytic capabilities, and the duplication of content, could be applied to postal mail. Without resorting to a seance, can you say whether the executive branch of the late 18th century (had it been able to) would have been allowed to instruct the postal service to record and keep a duplicate of any piece of mail that passed through their hands?
How about a case in which the government argued that a collection of clay figurines which represented the structure of a particular organization were neither “effects” nor “papers” and were therefore not protected by the 4th? Can you tell me how that was likely to have gone, circa the early 1800s?
If these things do not require a seance, then why does it require a seance to conclude that the founders (at least the ones that favored civil liberties, which granted was not all of them) intended different methods with the same purpose to be protected in an equivalent way?
“Second, this treasure trove of data has been collected, but can only be used according to the statute (passed by Congress) under which it was collected.”
You know, I’ve been trying to explain to my five year old the difference between “can” and “may”, and you’re not making me optimistic that I’m going to get it across. It only MAY be so used. It obviously, having been collected, CAN be used for any purpose under the sun. Cyberstalking. Earning mad money by committing extortion. Slipping embarrassing dirt on political opponents to the media. Blackmailing Supreme court justices.
It “can” be used for any of this, and the deliberately obscure nature of the NSA means we wouldn’t know it.
Briefly:
The fact that electronic communications did not exist at the time the 4th A was written is not a good argument for why the 4th does not apply to them now. And, in fact, there is ample case law, some of which is cited in this thread, which specifically addresses how the 4th does or does not apply to electronic communications.
Smith v Maryland established that pen register traces – captures of the routing information for electronic communications – were not protected by the 4th. That meant that any such protection would have to come from statutory law. The ECPA is, in fact, that statutory law.
As I’ve said previously on this topic, metadata collection specifically – which is not the whole of what the NSA is up to – is likely legally in the clear, because the feds can basically write their own warrants if they like. I don’t believe they even need to go to FISC for that.
The NSA has apparently extended the privilege of collecting routing information on persons of interest to include all electronic communications, of all people, in the US. At a minimum, that deserves a hearty WTF from all us, and obliges them to explain what the hell they want it for, and what use they intend to make of it.
It’s true, police, the FBI, and whatever intelligence agency can follow you around as you go about your public business. If they decided that they were going to follow every freaking person in the US around, each and every day, as they went about their business, and keep a durable record of all of our activities for them to peruse at their leisure, that should properly give us cause to ask what the hell they were up to.
The NSA’s job is to look for needles in haystacks. Consequently they want to have all the hay. If they leave out some hay they might miss a needle, if the needle turns out to have been in that hay.
I’m not saying the NSA should get all the hay whenever they want. But this is definitely the reason for their approach.
The NSA’s job is to conduct signals intelligence.
So?
Is it even possible for the judiciary or the executive or Congress to effectively oversee the NSA’s activities?
What I mean is that for any Congressperson or judge or executive staffer, there’s a good chance that the NSA has access to daughter say, personally incriminating information on them or their family. Say, the fact that person A, who is the government overseer’s daughter say, frequently communicates with person B who the DEA suspects is a mid-level drug dealer who often communicates with person C who is the DEA knows is a high-volume drug dealer. How many congressional staffers or congresspeople are cheating on their spouses or buying drugs or watching problematic porn? How many of their careers could be terminated with one anonymous phone call to the DEA or the local police or a local newspaper? How do you oversee someone who has the power to destroy your career?
Perhaps the reason that the two judges came to different conclusions is that one didn’t have any dirt the NSA could find and one did. It may be that an organization with as much data as the NSA is simply impossible to regulate, given that the humans who would regulate it are likely to have skeletons in their closets and that the people who run the NSA may not be averse to using that to their own benefit. Seems a bit like keeping a loaded firearm (or an armed nuclear weapon) in your living room.
Now, I don’t know for a fact that the NSA is actually blackmailing or threatening every authority that tries to limit its scope, but I don’t see why they can’t. The people in charge of regulating them have a great many vices. And I can easily see people at the NSA convincing themselves that their the last line of defence and that they’re work is vital, so they must be allowed to continue it, no matter what the idiotic politicians or judges say.
So?
Allow me to expand.
The NSA’s job is to conduct signals intelligence, not to look for needles in a haystack.
If they’re approach to conducting signals intelligence is to look for electronic needles in electronic haystacks, they’re likely going about it the wrong way.
I understand the desire to NEVER LET 9/11 HAPPEN AGAIN!!!11!!, but the intelligence failures leading up to 9/11 were not due to a lack of information.
Is it even possible for the judiciary or the executive or Congress to effectively oversee the NSA’s activities?
Not if they don’t know what’s going on. Which, in turn, is hampered when folks from the agencies lie to them.
These comments from the head of the FISC court seem relevant.
i don’t think the NSA needs to use the threat of blackmail to keep itself in business. just holding up the “9/11” sign whenever someone opens their mouth about restrictions or changes will be more than sufficient.
my crystal ball says that it will be generations before there are significant changes to the NSA – the 9/11-era politicians and voters will have to die off, first. we’ll need people who look at 9/11 the same way people born in the 70s look at Pearl Harbor.
If they couldn’t search a datebook without cause 200 years ago, why can they search phone logs now?
They’re not coming into your house and searching your datebook, thompson. They’re getting their data from the phone company: you know, that third party that you gave your life story to when you were trying to keep things so private.
It’s true, police, the FBI, and whatever intelligence agency can follow you around as you go about your public business. If they decided that they were going to follow every freaking person in the US around, each and every day, as they went about their business, and keep a durable record of all of our activities for them to peruse at their leisure, that should properly give us cause to ask what the hell they were up to.
It is worrisome that they can essentially follow people around in that massive way. But that doesn’t mean that the Fourth Amendment solves that worry. By the way, it’s worrisome that the folks at my local pharmacy have a long record of all of the things I’ve bought there (although I could prevent that by using cash). It’s worrisome that there was a huge security breach at Target where lots of people’s bank accounts were made available to thieves (again, could have used cash). It’s worrisome that people can have cameras wherever they want, and have photographs of me when I don’t authorize it. Technology presents a whole new world of worries. Everyone takes advantage of technology, including the government.
The writs of assistance that you mentioned earlier were general warrants, allowing English officers to go from house to house, breaking in to look for smuggled goods, and taking them (or whatever else they might find, since they didn’t have to account for anything). That’s the kind of behavior that the Fourth Amendment was originally (through the Founders) designed to protect: trespass to persons or property for the purpose of finding evidence of crime. Obviously (and with my thanks), the law developed beyond what the Founders had thought about.
Because what the Founders were trying to prevent was unlawful collection of criminal evidence, the remedy for Fourth Amendment violations has been the exclusionary rule, period. Until Katz (1967), there wasn’t much discussion of “privacy”. The idea of “portable privacy” (except as to a person’s body) is a 20th century concept. (For a good summary of case law regarding the Fourth Amendment, with citations to most Fourth Amendments cases through 1992, see this.
So, right, it’s creepy that the NSA, and Walgreen’s, and Facebook have a lot of information about me that they could use to blackmail me, and I have no problems with laws restricting their collection or use of it. But I’m not going to pretend that the Founding Fathers had any inkling about it, or would have been championing Edward Snowden, because that does not bear out.
The question of whether the “cost” side (including abuse) of the 3-letter agencies can be estimated is what y’all are discussing.
I’m really wondering if there’s some way to estimate the *benefit* side, given that a) I don’t have a security clearance, and b) as russell points out, the TLAs lie to the people who *do*.
Is there any way to see or estimate the benefit objectively, without secret knowledge? Otherwise, we’re paying them based only on their self-evaluation.
Is it even possible for the judiciary or the executive or Congress to effectively oversee the NSA’s activities?
People will complain when they’re harmed, won’t they?
If Edward Snowden had been English at the time and giving up the Crown’s intelligence to George Washington regarding British fleet movements in 1776, the Founding Fathers would have been all for it.
If he was sitting in a room near the docks in Portsmouth, England cooling his heels while dishing out intelligence data regarding how Paul Revere knew the British were coming, the Founding Fathers would have been aghast.
The Founding Fathers had principles, dammit!
And if you didn’t like those, they had others.
People will complain when they’re harmed, won’t they?
How would that work exactly? If a congressional staffer that had been pushing their boss to investigate NSA abuses ends up busted for drug use, who exactly would believe their claims that they’re only in jail because they wouldn’t play ball with the NSA? If a Congressman’s career implodes because newspapers get a tip that he’s cheating on his spouse, do you really think that this career will magically recover if he goes on TV and says “I got an anonymous call that told me to stop investigating the NSA or else my cheating would be publicized!”?
Blackmail seems especially effective in environments where the targets are under public scrutiny and must appear squeaky clean. And the NSA doesn’t need to get dirt on everyone; our government has many veto points and lots of favors traded, so manipulating a few key people would be sufficient.
The NSA has substantially more data available to it than Google does, but based on news reports, it has substantially poorer internal controls than Google. In fact, it has substantially poor internal controls than my company. This seems…not right.
Is there any way to see or estimate the benefit objectively, without secret knowledge? Otherwise, we’re paying them based only on their self-evaluation.
No, there isn’t. On the other hand, this is true for many aspects of the national security state. Is there any way to estimate the benefits of the F-35 fighter? Or the DDG-1000 destroyer? What about the Missile Defense Agency?
For that matter, how exactly do you assess the benefits of the CDC? I worry that you’ve setup a test that is so stringent that no entity could ever pass.
People who use drugs can be blackmailed by all kinds of people, as can politicians. I mean, it’s a problem, but not one that’s limited to the NSA.
I’m not suggesting that the NSA be unmonitored, or that if we can place sufficient oversight and controls on it, that we shouldn’t do so. I have a bit of a problem with placing huge limitations on our own government when we basically trust private entities to self-regulate, and when we have no control whatsoever on what foreign governments and entities do.
I’m not saying that it isn’t a problem that needs a solution. It’s just that the solution isn’t to disband government. The solution is more difficult than that, and needs to be discussed in a way that’s meaningful, and not destructive to the capacity of government to conduct legitimate national security work.
People will complain when they’re harmed, won’t they?
This assumes that they know that whatever harm they have suffered is related to any of the intelligence programs we’re talking about.
That’s unlikely, because the means for discovering that are not really available.
Thanks for the more thorough and thoughtful discussion in your 10:16. As has been discussed, routing information is not considered to be protected by the 4th, but has received statutory protection. In general that’s moot for investigations of non-US persons and terrorists, but that exception hardly seems to apply to the stuff we’re talking about here.
Some of that may also be covered by national security letters, but those are also hardly intended to cover every single person in the US.
It’s also unclear that FISC has, or could, issue an order allowing indiscriminate collection of routing information for every electronic conversation made in the US.
So, it seems to me, that the legal basis for collecting all of that is unclear. And, I think that is borne out by the conflicting judicial opinions.
There is also the basic question that Doc Science raises, which is why the hell they want all of that, and what the hell they are doing with it. Oversight of the NSA’s activities is demonstrably weak, as evidenced by their ability to lie to Congress with impunity, and by the lack of any effective means of knowing if they are complying with the terms of the FISC orders that are granted.
There is also the question of what programs are underway that extend beyond the collection of just routing information.
Long story short, what we have is an agency that is accumulating a tremendous amount of information, about everybody in the country, with little oversight, which oversight is of limited effectiveness even when it’s available, whose leader has publicly lied to Congress about the scope and nature of their programs, and who has so far been unable to present a really compelling case that their work has actually contributed to the safety of the nation or its residents.
So, really? No worries? Nothing to see here, just move along? Just trust us, because a “good guy” is in the White House?
I think it’s reasonable, correct, and part of our responsibility as citizens to not take what they say at face value, and to want to know WTF is going on there.
It is worrisome that they can essentially follow people around in that massive way.
Shorter me:
It’s not worrisome that they *can*. It’s worrisome that they *do*.
People who use drugs can be blackmailed by all kinds of people, as can politicians. I mean, it’s a problem, but not one that’s limited to the NSA.
Actually, it is. The NSA has far more data available to it than any other entity. That makes it different. What’s more, even when other entities have a subset of the data, it is not their job to mine the data for incriminating connections and evidence of criminal activity; they lack the resources to do so.
For example, AT&T has some metadata, but they don’t make money by looking for patterns in that data (this is not a profit center for them), nor do they have access to law enforcement databases that allow them to determine which individuals are known or likely criminals.
…what we have is an agency that is accumulating a tremendous amount of information, about everybody in the country, with little oversight, which oversight is of limited effectiveness even when it’s available, whose leader has publicly lied to Congress about the scope and nature of their programs, and who has so far been unable to present a really compelling case that their work has actually contributed to the safety of the nation or its residents.
I agree that the agency needs more oversight. We have known that for a long, long time. The question is how. Obama has offered some solutions, and the issue should be permanently on the front burner (just as the Patriot Act was controversial, and was discussed and amended, and has a sunset provision, which means that it will be reviewed in 2015).
As to Clapper and his “lie” (if that’s what you’re referring to), that was an inartful way of dodging the problem that it would have been a criminal act to discuss a classified matter in public. I don’t at all respect Wyden for setting that trap. If you’re talking about a different instance of lying, could you provide a description or a link?
The NSA can’t present a “compelling case,” in part because their work is mostly classified. We are the most powerful nation in the world. We have a lot of very significant and public problems (such as our huge rate of incarceration, wealth inequality, and many others). Despite our problems, I’d prefer to maintain our position of strength in the world, and I trust the government more than I trust private corporations, which also have a lot of information, and operate not only here, but abroad, and can also misuse what they have. (As corporations are increasingly involved in the political process, I don’t see why we don’t have exactly the same worries about them as we do about the NSA.)
For example, AT&T has some metadata, but they don’t make money by looking for patterns in that data (this is not a profit center for them), nor do they have access to law enforcement databases that allow them to determine which individuals are known or likely criminals.
AT&T could have some political interest, and use its data to blackmail a politician just as the NSA does. The point is not what the data is used for (which, if all goes well in the NSA, is all to the good); it’s what it could be used for if someone cared to do something untoward. Corporations are becoming more and more powerful. I used to joke that we would soon be pledging allegiance to our favorite stock corporation, and the fact is, that’s more and more true. Sure, they’re set up in order to make a profit, but we all know that wealthy executives are as likely to be corrupted by power as anyone else. I really don’t see why it’s not just as much a matter of concern.
As to Clapper and his “lie” (if that’s what you’re referring to), that was an inartful way of dodging the problem that it would have been a criminal act to discuss a classified matter in public.
The correct answer was “yes”. His reply was “no”.
If you can’t answer a question because it touches on classified information, a useful response is “I’m sorry but I can’t answer that”.
If Wyden is unable to ask a question as basic as “are you collecting information on US persons”, I’m not sure what level of oversight is possible.
To some (IMO fairly large) degree, this discussion is more or less moot, because the intelligence agencies are going to do whatever the hell they want to do.
And, that’s the problem, in a nutshell.
If Wyden is unable to ask a question as basic as “are you collecting information on US persons”, I’m not sure what level of oversight is possible.
Wyden knew the answer to the question, and knew that the matter was classified. I agree that his answer should have been different; he actually explained later why he answered the way he did, but in any case, that’s a poor example of why Congress can’t have oversight since it was basically a PR trap by Wyden.
Regarding the Wyden – Clapper exchange.
Conversation has moved on while I’ve been otherwise engaged, but I wanted to throw up a Schneier link since this was also the subject of his blog post:
https://www.schneier.com/blog/archives/2014/01/questioning_the.html
it was basically a PR trap by Wyden.
we know now.
but what if we didn’t know he was lying? what if we took his word for it?
Fixed.
My guess is that this is just the “Bush knew about 9/11 and didn’t bother to do anything about it” trope. But Dr. Science should answer this.
sapient:
Your linked discussion on the Wyden-Clapper exchanged seemed a little one-sided. Then I read about the author:
“Joel Brenner was the inspector general of the National Security Agency from 2002-2006, the national counterintelligence executive from 2006-2009, and the senior counsel of NSA from 2009-2010.”
I find the concept that Clapper couldn’t demur to a classified hearing ludicrous. What exactly would have been revealed by saying something along the lines of:
“The specifics of our signals intelligence is classified for good reason. We should discuss that in closed session.”
Had anybody heard that, I don’t think they would have immediately jumped to ‘bulk collection of telephony’.
Further, there is a reason congress holds hearings. There is a reason those hearings are public. It is both so congress can be informed, and the public they represent can be informed.
Asking hard questions of executive officials is a key aspect of ‘oversight’.
I applaud Wyden for it, and do not believe Clapper had the right to lie to congress because they asked a hard question.
but what if we didn’t know he was lying? what if we took his word for it?
The link to the article about the Wyden/Clapper exchange that I provided posed a more conscientious way that Wyden could have made this information available to the public.
I applaud Wyden for it, and do not believe Clapper had the right to lie to congress because they asked a hard question.
It’s your prerogative to applaud whomever you’d like. I think that Wyden’s behavior was just as much an abuse as anything else we’re talking about. He knowingly put Clapper in an untenable position of committing a criminal act, when he himself could have divulged information and probably been protected by Constitutional privilege. Go ahead and applaud abuse if you want to.
Turb:
“For that matter, how exactly do you assess the benefits of the CDC? I worry that you’ve setup a test that is so stringent that no entity could ever pass.”
I think the difference between the NSA and the CDC, or even the military, is the level of secrecy.
The CDC can make all sorts of claims about lowering flu rates and how their programs affect HIV transmission or whatever. But their spending, and their programs, are public. The results (mortality and disease rates, etc) are published regularly.
Now, the CDC also evaluates their own results and publishes on it.
However, anybody can investigate their claims. Anybody can use CDC data to independently investigate the efficacy of the CDC’s programs. And people do. The publish on it. I can personally go to the raw data and draw my own conclusions if I am so motivated.
The NSA is using interpretations of statue that are secret, conducting secret work, and getting secret results.
If Clapper or someone else stands up and says: ‘The bulk collection of telephony data has contributed X to the GWOT’ who can contradict him?
I have grave concerns about TLA’s having power they have a history of abusing not having thorough and public oversight.
I am far less concerned about terrorism.
sapient:
” more conscientious way that Wyden”
Wyden had and has many methods for discharging his duty as a US senator. I don’t find the NSA council’s other suggested options “more conscientious.”
I actually found it odd that someone that doesn’t like Snowden’s revelations (here I’m speculating about Mr. Brenner’s thoughts on Snowden) arguing that Wyden would have been “more conscientious” if he simply exposed the programs.
” He knowingly put Clapper in an untenable position of committing a criminal act”
No, he didn’t. Clapper readily could have answered with a generic ‘wait until the classified hearing’ answer and revealed nothing.
so, i took a quick look at the two judicial opinions.
both locate the authority for the NSA to collect communications ‘metadata’ – information other than the content of the communication – in section 215 of the USA PATRIOT Act.
USAPA section 215 does grant extremely broad powers for collection of virtually anything – ‘any tangible thing’ – including from US persons.
there are limits. the collection has to be related to a foreign intelligence investigation NOT related to a US person, or to a clandestine intelligence or terrorism investigation. the collection must exclude materials related to a US person’s exercise of their first amendment rights.
significantly, at least in my view, Leon notes (and Pauley does not) that section 215 was amended in 2006, such that the application for FISC order to engage in data collection must include:
50 US Code section 1861, see (b)(2).
so, it seems to me that the question is whether every phone call, email, tweet, facebook post, web browse, or what have you, made by every person in the US, since about 2006, is relevant to any given investigation of the activities of a particular foreign person, and/or of terrorism or clandestine intelligence activites (other than the NSA’s).
Pauley. at least as far as I have read so far, doesn’t address the question raised by the 2006 amendment.
Leon does address it, and finds the NSA’s case lacking.
basically, the NSA wants a database of the routing information for EVERY ELECTRONIC COMMUNICATION done by EVERY PERSON in the US, for years. like, the last 8 years and counting.
they want this so they can take a phone number they suspect is related to a terrorist, use it to query the database for up to three degrees of separation, and see what pops up.
to do this, they have to acquire the information *before they know whether its relevant or not*. unless we are going to say that “it’s relevant if it might someday turn out to be relevant”.
Leon finds that to be a bridge too far. I agree with him.
we’ll see where it lands.
Clapper readily could have answered with a generic ‘wait until the classified hearing’ answer and revealed nothing.
As I said before, he didn’t handle Wyden’s trap as well as he should have. However, he was under no obligation to tell the American people anything, and he wasn’t deceiving Congress, since they knew the answer to the question, he knew the answer to the question, and they both knew who knew the answer to the question. So, sure, it was a stunt by Wyden to trip up Clapper, and it worked, because Clapper felt that he couldn’t tell the truth publicly. Crucify him if you think he should be, but if you’re trying to use the incident as an example of “How is Congress supposed to exercise oversight when people lie?” it’s a pretty poor example.
That’s all I’m saying.
russell:
Agree with your 1:25PM.
sapient:
” he was under no obligation to tell the American people anything”
No, but he was under oath to tell the truth at the hearing. And he did not. That’s not handling it poorly, that’s *lying to congress*.
“if you’re trying to use the incident as an example of “How is Congress supposed to exercise oversight when people lie?” it’s a pretty poor example.”
I’m using it as an example of *lying to congress*. Not misspeaking, or being too cute by half.
Above you called it a “lie” in quotes (which I took to mean you don’t really consider it a lie) and further characterized it as “an inartful way of dodging the problem”
I am simply rejecting the concept that it was not a lie under oath.
I am simply rejecting the concept that it was not a lie under oath.
In order for a “lie under oath” to be perjury (in other words, a crime) there has to be an intent to deceive. How could there be an intent to deceive when everyone knew the score? In the game of “PR gotcha”, Weyden “got” Clapper, no question. That’s all. Applause, applause.
Regarding Clapper’s exchange, Wyden’s office sent it to him the day before the meeting. If the correct answer would have been classified, the legally correct thing to do is to tell that to committee aides and ensure that the question is asked during a closed session. Congress deals with classified testimony all the time. The correct answer is not to commit perjury.
Wyden didn’t surprise Clapper with a question; he gave him advance notice of exactly what he would ask.
However, anybody can investigate their claims. Anybody can use CDC data to independently investigate the efficacy of the CDC’s programs. And people do. The publish on it. I can personally go to the raw data and draw my own conclusions if I am so motivated.
Is the F-35 a better aircraft than the cheaper Russian equivalents? How could we tell? Much of the performance data is classified (how effective is the stealth coating against Russian fighter radar systems?). Beyond that, the only real way to know is to have a conflict where F-35s fight against other aircraft and see who wins; that is…a poor evaluation technique.
I read again Judge Leon’s opinion. The reason it is criticized by legal scholars is that district court judges don’t really have authority to overrule standing precedent by the Supreme Court.
What Leon did was to concede that Smith v. Maryland stood for the idea that there is no expectation of privacy in telephony metadata, which is contained in the business records of a telephone company. However, he took the giant leap of saying that telephone companies now have so much metadata, and it can tell people so much about the customer, that people do have an expectation of privacy in it.
Although the Supreme Court sometimes does that kind of reversal of existing law, district judges really aren’t supposed to do it.
Also, he cites the United States v. Jones case (the GPS case) as though the Sotomayor opinion were the controlling one. The Jones case was decided on the basis that the GPS device installation was a trespass. The court did discuss technology, and the expectation of privacy, in a way that signalled the possibility of expanding previous decisions, but that’s not what the decision was based on, so it isn’t controlling. Leon went way beyond the scope of where he should have based on stare decisis. Again, the Supreme Court can do that kind of thing, but he is on very shaky ground.
Leon’s discussion of the statute is interesting background, but his decision isn’t really based on any interpretation of the statute. His decision is basically this: Collection of telephony metadata violates people’s reasonable expectation of privacy because nowadays the government can find out a lot, whereas before (when the Supreme Court last considered it), they couldn’t find out much.
The correct answer is not to commit perjury.
Again, perjury requires intent to deceive. And again, Clapper probably should have said something weaselly instead of untrue, just to be “honest.” But, honestly, I think Wyden’s motives were pretty sleazy. But, applause!
Smith v. Maryland stood for the idea that there is no expectation of privacy in telephony metadata
Smith vs Maryland establishes that there is no 4th Amendment constitutional protection for telephony metadata.
Subsequent to Smith vs Maryland, the Electronic Communications Privacy Act establishes a *statutory* protection for telephony metadata. Warrant with probable cause is not required, however a court order is. For intelligence (i.e., non-criminal) investigation of a US person, that must come from FISC.
USA Patriot overrides ECPA, however with the limitations I noted above.
IANAL, but that’s how it looks to me.
“How could there be an intent to deceive when everyone knew the score?”
Everybody didn’t know the score. The people didn’t. We, the people, expect that public testimony under oath to congress is truthful.
USC on perjury:
“willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true”
If you have case law or code that shows mens rea in a perjury case is not satisfied by a willful and knowing untruth under oath based on the condition that the “tribunal, officer, or person” knows its a lie, I’d love to see it.
Because that concept makes little sense to me, and I’d love to learn more about it, if its based in settled law.
“Is the F-35 a better aircraft than the cheaper Russian equivalents? How could we tell? Much of the performance data is classified”
Turb, that’s true. And a lot of military information is classified (Too much, in my mind). But its a matter of scaling.
We have data on performance characteristics of the F-35. Not all of them, and not the limits. We have data on failures/problems in the F-35. Again, probably not on all of them. And we know the program cost. It keeps increasing, but its known.
And we can evaluate the arguments made by the DoD on why a new fighter is necessary. And why the JSF was the best way to accomplish the goals of the various branches.
Pretty similar for the Osprey. We know the costs, we know a lot about the problems, we know a lot about the capabilities.
As secrecy increases, oversight becomes harder. In many cases, secrecy is completely unnecessary (CDC frex). In others its partially necessary (military frex: I’d like to know when we go to war how the war is going, which troops and equipment are deployed, what strategies are being used, but I don’t need a twitter feed if we are going to raid a Taliban camp. If overall what the military is saying can be verified, I’m willing to extend some trust on operational specifics).
Perjury is a complex crime and maybe Clapper did or didn’t do it; it is difficult to prosecute and maybe the USDA should or shouldn’t prosecute Clapper. But there can be no question that Clapper lied. He had no excuse. He chose to lie, in public, rather than ask for a closed session and offer a truthful answer there. And he didn’t just make a bad decision on the spur of the moment: he had advance knowledge of precisely the questions he would face, which means he chose to lie in advance.
I don’t know if Clapper committed perjury or not. But I do know that he has lied to Congress. And I know that Obama should have fired him immediately for doing so.
If you can’t answer Congress’ questions truthfully even given a staff of deputies and assistants, then what business do you have running a massive organization with thousands of employees controlling billions of dollars?
I’m not going to research it, thompson, since it’s moot. He wouldn’t be prosecuted for lying since it was clearly a P.R. stunt, and his truthful answer would also have been a crime. Everyone (but you, apparently) realizes that he was stuck with making a truthful weasel (which would have alerted the American public to a highly classified program which he had a duty not to reveal) or a lie.
Wyden’s PR stunt, which was designed to draw acclaim from people who were predisposed to hating Clapper, worked. Again, Wyden could have chosen a more courageous course, but that would have meant that he would have had to have shown some courage instead of foisting the dilemma on someone else.
Good gotcha!
However, he took the giant leap of saying that telephone companies now have so much metadata, and it can tell people so much about the customer, that people do have an expectation of privacy in it.
Just finished reading through Leon’s opinion.
I think your analysis is correct – after pointing out the limitations in USAPA section 215, he then went on to agree with the government’s claim that it was out of his jurisdiction to rule on whether the NSA’s program was compliant or not – per Leon, that belongs exclusively to the FISC.
Leaving that aside, he found a 4th Amendment protection based on fact that there’s just a lot more phone metadata around now than there was when Smith vs Maryland was decided.
I agree with you in finding that to be a pretty slim reed.
I would expect Leon’s opinion to be overruled. And, thanks for including the links to the opinions.
The issue that is left unaddressed is how the telephony metadata from every electronic communication, of every person in the US, over any five year period, is relevant to any given terrorism or foreign intelligence investigation.
We’re also left with an agency running programs that can only be reviewed by a secret court, and where the chief judge of that court frankly concedes that meaningful oversight is not reliably achievable.
So, quite likely legal, yet FUBAR.
And I know that Obama should have fired him immediately for doing so.
I don’t really care about this when the situation was a transparent attempt by Wyden to score points, and to reveal the existence of a classified program without taking the heat for it. If Obama fired him to score points with Turbulence, that would have been a political calculation. Clapper came up with some after-the-fact excuse, and apparently that’s been accepted.
I find it hilarious that some of the people here who are so worried about people being framed and blackmailed and put in untenable positions by the NSA are perfectly okay with Wyden having accomplished a PR victory using Clapper as a fall guy, when he could very easily have done it in a more honest and straightforward way. This is an example of abuse of authority, pure and simple.
That’s one of the sillier things I have read today.
I don’t really care about this when the situation was a transparent attempt by Wyden to score points
I would say that if we can’t assume malicious intent on Clapper’s part, since we can’t read his mind, then Wyden deserves the same consideration.
There’s a lot of daylight between “setting a trap” for a “PR stunt”, and simply putting somebody on the spot.
And there’s absolutely nothing, nada, zip wrong with a Congressperson putting a federal agency principal on the spot. That’s a completely legitimate part of oversight.
sapient:
“I’m not going to research it, thompson, since it’s moot.”
I didn’t ask you to research it. I just assumed you had evidence for the claim you made. My research turned up none.
“and his truthful answer would also have been a crime.”
As had been stated repeatedly, he had many truthful answers available that would not have been a crime.
“Everyone (but you, apparently) realizes that he was stuck”
“Everyone” does not realize this. There are dozens of opinions in NYT, WP, etc etc that have a similar analysis to mine. Your link even links to one.
That’s one of the sillier things I have read today.
I don’t know man, Turb’s a heavy hitter.
So, quite likely legal, yet FUBAR.
Thanks for reading so carefully and honestly. I think there’s a lot of reason for worry about the program. Fortunately, it does come up for review in 2015.
Believe it or not, I don’t want to live in a totalitarian state either. But I’m not so sanguine to believe that private entities, which have no oversight whatsoever, can’t make malicious use of the data they have just as easily as the government. I think the information age is wonderful – I spend huge amounts of time on the Internet. But it’s a brave new world, no question.
why, it’s almost as if things like “abuse of authority” depends on who is using that authority and to what end. buncha fncking hypocrites, right? authority should always be respected, or never. there’s no “who’s authority” or “what good does it serve”; that stuff is hilarious.
cleek, I don’t know if you read the New Republic link regarding Wyden’s other options. I just think if we’re calling people out for stuff, we should be consistent. Wyden has Congressional immunity under the Constitution. If he wants to spill the beans on a government program, he’s not going to jail. Clapper, not so much.
Sure, Clapper should have asked for a closed session. Was he clumsy? Is he just a pathological liar? What? Either he was confused (as he later stated), or one of the former things. In any case, everyone in the room knew the truth. But, sure, let’s go ahead and put his head on a pike to show our disapproval.
I just think if we’re calling people out for stuff
not all stuff is equal.
Either he was confused (as he later stated)
which is laughable.
Wait a minute! Are we crucifying him or putting his head on a pike? Which is it, now?
Why not both?
“The NSA’s job is to conduct signals intelligence, not to look for needles in a haystack.”
1. If you would be so kind, who are you to say that the NSA’s job is not to look for needles in haystacks? Suppose I say it is. Who wins this debate by assertion? Do you have a reason besides restating the phrase “signals intelligence”? How does the NSA’s mission violate the sacred category of “signals intelligence”?
2. “If they’re approach to conducting signals intelligence is to look for electronic needles in electronic haystacks, they’re likely going about it the wrong way.”
I’m receptive to arguments that the NSA is going about looking for needles in haystacks badly, but you’ll have to do better than “they probably are messing it up.”
3. “I understand the desire to NEVER LET 9/11 HAPPEN AGAIN!!!11!!, but the intelligence failures leading up to 9/11 were not due to a lack of information.”
Maybe the goal of the NSA programs are not simply to myopically prevent 9/11 from happening again, but to also prevent other harms of possibly greater magnitude that require greater vigilance.
4. “If you can’t answer a question because it touches on classified information, a useful response is “I’m sorry but I can’t answer that”.”
“I’m sorry but I can’t answer that” is not always a useful answer–sometimes it’s the same as saying “yes” or “no.”
“I’m sorry but I can’t answer that” is not always a useful answer–sometimes it’s the same as saying “yes” or “no.”
I’m pretty sure that’s what the issue was. Thanks, Julian.
“I’m sorry but I can’t answer that” is not always a useful answer–sometimes it’s the same as saying “yes” or “no.”
This is a non-issue. Congress deals with classified testimony all the time. If the answer is classified, you explain that to committee staff and make sure that the question is asked in closed session. Since Clapper was given the questions in advance, he had ample opportunity to do that. But he chose not to. He chose to lie.
I’m not sure why agency heads who choose to lie to Congress should still have their job. “Don’t lie to Congress” seems like job 1 when you’re a high ranking government official. If you can’t do that…what good are you?
Since Clapper was given the questions in advance, he had ample opportunity to do that. But he chose not to. He chose to lie.
No. The fact is that Wyden asked it anyway. He knew very well that the answer was classified, and he asked it anyway, knowing that. It’s fine, Turbulence. Again, have his head. But that was not a straightforward hearing. Wyden, who knew everything about it, wanted to make it public. The way he wanted to do it was to compromise Clapper, rather than take a political hit himself. He won his little game.
If you would be so kind, who are you to say that the NSA’s job is not to look for needles in haystacks? Suppose I say it is. Who wins this debate by assertion?
A fair question.
Among the intelligence agencies, the NSA’s job, specifically, is to conduct signals intelligence. That is what they do. It is their reason for existence.
The reason I push back on the “needle in a haystack” thing is because *all* intelligence gathering is difficult, *all* intelligence gathering involves discovering information that other people would prefer you not gather, *all* intelligence gathering involves distinguishing the meaningful and useful information from the non-useful noise in which it is embedded.
The reason I push back on the “needle in a haystack” thing in this context is that the NSA appears to be intent on constructing the *largest possible haystack that they can possibly assemble*. They are building a database of comms information that includes not only the communications of people who are relatively likely to be of interest, but also me, and you, and my cousin, and his neighbor, and the guy who owns the car wash down the street from me.
Everybody. Every phone call, every email, every facebook post, every tweet, every instagram selfie, every web browse, for every person in the US, for a period of five years, updated daily.
That’s what they want to search through.
What they’re hoping is that they will stumble across some as-of-yet-undiscovered associations between people of interest and other people of interest, or possibly between people of interest and people who we aren’t interested in but should be.
In Leon’s opinion, he makes the very simple but apt point that, assuming somebody calls 100 different numbers over five years, that the number of phone numbers in the set returned from one of the NSA’s “three-hop” queries will be order-of-magnitude 1,000,000 numbers.
One million.
What do they do with one million freaking phone numbers? Check each one to see if they’re significant?
Is the Domino’s pizza call just a take-out order, or is the delivery guy a terrorist?
That question, times a million.
So, it strikes me that in deliberately increasing the amount of information that they are basing their search on to a truly extraordinary size, they are increasing the noise level of the information they are working with.
It seems stupid to me. I understand that the analytic tools are fabulous these days, but what they seem to be doing with their fabulous new hammer is giving it one million nails to hit.
There are folks on this board who actually have serious big data chops, so I’ll leave it to them to weigh in further if they like. To me, it seems stupid.
“I’m sorry but I can’t answer that” is not always a useful answer–sometimes it’s the same as saying “yes” or “no.”
The bog standard answer for intelligence functionaries to questions about classified programs is “I’m sorry, that’s classified, I can’t discuss it”.
We hear that only about 500 times a year.
It is, in fact, a completely appropriate and useful answer. It’s an accurate and truthful statement of the reality.
It was the answer Alexander gave to the same question.
And no, it doesn’t automatically mean “yes, we’re doing the horrible thing you think we are, but I can’t say so”. It means the topic is classified, and can’t be discussed in an open meeting.
Why is it a “little game” if Wyden asks a question he already knows the answer to, but not a “little game” if Clapper lies rather than simply begs off?
thompson:
If you have case law or code that shows mens rea in a perjury case is not satisfied by a willful and knowing untruth under oath based on the condition that the “tribunal, officer, or person” knows its a lie, I’d love to see it.
…
Turb:
I don’t know if Clapper committed perjury or not. But I do know that he has lied to Congress. And I know that Obama should have fired him immediately for doing so.
Actually, we can know with certainty whether Clapper committed perjury. He did not, as he was not placed under oath. The question at hand is if he is guilty of making a false statement to Congress. Which is also a fairly serious matter. But it’s not perjury.
…
Having said that, I can’t say I agree with sapient beyond that one point. I think the question was a legitimate one, especially if it was provided in advance so it could be eluded. Which it obviously wasn’t. Clapper is a victim of his own actions as much as Wyden’s.
sorry if this shows up twice…
“The NSA’s job is to conduct signals intelligence, not to look for needles in a haystack.”
1. If you would be so kind, who are you to say that the NSA’s job is not to look for needles in haystacks? Suppose I say it is. Who wins this debate by assertion? Do you have a reason besides restating the phrase “signals intelligence”? How does the NSA’s mission violate the sacred category of “signals intelligence”?
2. “If they’re approach to conducting signals intelligence is to look for electronic needles in electronic haystacks, they’re likely going about it the wrong way.”
I’m receptive to arguments that the NSA is going about looking for needles in haystacks badly, but you’ll have to do better than “they probably are messing it up.”
3. “I understand the desire to NEVER LET 9/11 HAPPEN AGAIN!!!11!!, but the intelligence failures leading up to 9/11 were not due to a lack of information.”
Maybe the goal of the NSA programs are not simply to myopically prevent 9/11 from happening again, but to also prevent other harms of possibly greater magnitude that require greater vigilance.
4. “If you can’t answer a question because it touches on classified information, a useful response is “I’m sorry but I can’t answer that”.”
“I’m sorry but I can’t answer that” is not always a useful answer–sometimes it’s the same as saying “yes” or “no.”
Posted by: Julian | January 22, 2014 at 05:32 PM
If you would be so kind, who are you to say that the NSA’s job is not to look for needles in haystacks? Suppose I say it is. Who wins this debate by assertion?
A fair question.
Among the intelligence agencies, the NSA’s job, specifically, is to conduct signals intelligence. That is what they do. It is their reason for existence.
The reason I push back on the “needle in a haystack” thing is because *all* intelligence gathering is difficult, *all* intelligence gathering involves discovering information that other people would prefer you not gather, *all* intelligence gathering involves distinguishing the meaningful and useful information from the non-useful noise in which it is embedded.
The reason I push back on the “needle in a haystack” thing in this context is that the NSA appears to be intent on constructing the *largest possible haystack that they can possibly assemble*. They are building a database of comms information that includes not only the communications of people who are relatively likely to be of interest, but also me, and you, and my cousin, and his neighbor, and the guy who owns the car wash down the street from me.
Everybody. Every phone call, every email, every facebook post, every tweet, every instagram selfie, every web browse, for every person in the US, for a period of five years, updated daily.
That’s what they want to search through.
What they’re hoping is that they will stumble across some as-of-yet-undiscovered associations between people of interest and other people of interest, or possibly between people of interest and people who we aren’t interested in but should be.
In Leon’s opinion, he makes the very simple but apt point that, assuming somebody calls 100 different numbers over five years, that the number of phone numbers in the set returned from one of the NSA’s “three-hop” queries will be order-of-magnitude 1,000,000 numbers.
One million.
What do they do with one million freaking phone numbers? Check each one to see if they’re significant?
Is the Domino’s pizza call just a take-out order, or is the delivery guy a terrorist?
That question, times a million.
So, it strikes me that in deliberately increasing the amount of information that they are basing their search on to a truly extraordinary size, they are increasing the noise level of the information they are working with.
It seems stupid to me. I understand that the analytic tools are fabulous these days, but what they seem to be doing with their fabulous new hammer is giving it one million nails to hit.
There are folks on this board who actually have serious big data chops, so I’ll leave it to them to weigh in further if they like. To me, it seems stupid.
“I’m sorry but I can’t answer that” is not always a useful answer–sometimes it’s the same as saying “yes” or “no.”
The bog standard answer for intelligence functionaries to questions about classified programs is “I’m sorry, that’s classified, I can’t discuss it”.
We hear that only about 500 times a year.
It is, in fact, a completely appropriate and useful answer. It’s an accurate and truthful statement of the reality.
It was the answer Alexander gave to the same question.
And no, it doesn’t automatically mean “yes, we’re doing the horrible thing you think we are, but I can’t say so”. It means the topic is classified, and can’t be discussed in an open meeting.
I tried to reply to Julian’s 5:32 but I think my reply was too long.
So, briefly:
Among intelligence agencies, the NSA’s specific task is to collect and analyze signals intelligence. That is why they exist.
The reason I push back on the “needle in a haystack” thing is twofold.
1. Intelligence gathering inherently involves trying to find useful, significant information in a big sea of noise. The NSA is not special in that regard, and deserves no special exemption from the restrictions that governs all intelligence gathering.
2. Going about finding needles by first building the biggest feasible haystack seems self-defeating. To me, anyway.
There are people on this board with serious big data chops, I will let them weigh in further if they wish.
Regarding Clapper, “I’m sorry, the topic is classified and I can’t discuss it in an open meeting” is a completely useful and accurate answer. It’s the answer Alexander gave to the same question. It’s the bog standard answer that we hear 500 times a year in cases like this.
“No” when the actual answer is “yes” is not a good answer.
It’s too bad for Clapper that wily Wyden tricked him into lying. What that tells me is that Wyden is better at his job than Clapper is.
Why is it a “little game” if Wyden asks a question he already knows the answer to, but not a “little game” if Clapper lies rather than simply begs off?
If you ask a question of a witness, knowing that they can’t, ibecause of their own legal constraints, answer truthfully, isn’t that a little game? Pretty sure that it’s trying to force Clapper to do Wyden’s dirty work for him. What is your take on Wyden’s action?
Put it this way: If you ask a question to someone who you know could go to federal prison if he gives you a truthful answer, and you do so in public, isn’t that a “little game”? Especially if you know the answer to it?
If you ask a question of a witness, knowing that they can’t, ibecause of their own legal constraints, answer truthfully, isn’t that a little game?
Clapper could easily have answered truthfully by saying “the topic is classified, can’t discuss it here”. It’s what Alexander said to the *same question*, it’s what folks from the intelligence communities say on a more or less daily basis.
My “take” on Wyden’s action is that he wanted Clapper to make a statement about the program. I’m not a mind-reader so I don’t know what his motivation was, nor do you.
Seriously, Clapper was asked to speak to Congress on a topic for which they are responsible to provide oversight, he was asked a simple and direct question, and he lied. He knew the question was on the agenda, he had time to consider what he would say. He didn’t weasel around, he didn’t obfuscate, he gave an answer 180 degrees away from the truth.
He is responsible for his reply, not Wyden.
If you ask a question to someone who you know could go to federal prison if he gives you a truthful answer, and you do so in public, isn’t that a “little game”?
No, it is not a little game if the person testifying knows about the questions in advance and has the opportunity to request that their answer be made in private where there is zero legal risk to them and they choose not to do that. There was no risk to Clapper at all. Zero. None. Nada. Zilch.
If Clapper has asked committee staff to only ask that question in a closed session and Wyden blew him off, then you could argue that Wyden was playing games, but This. Did. Not. Happen.
Well, I respect you all, and your point of view. However, Wyden knew when he asked the question that Clapper could not give a truthful answer. He was asking Clapper to do the dirty work of disclosing classified information (or signalling to the public that there was something to hide). Whereas Wyden, himself, could have done so with the protection of Congressional immunity. You have your opinion. I have mine.
By the way, did I mention that we should hang Clapper?
NomVide:
“But it’s not perjury”
Thanks, you are very correct on that count, and I was incorrect.
He was not under oath. But I think its still covered by lying to congress in USC18.
russell:
Do you have a link/know roughly when Alexander was asked?
I’d like to dig up the transcript, that’s a really important fact.
Also, NomVide, I apologize, I apparently stopped reading your comment 1/2way through. So, again, you’re right and my addendum about lying to congress was redundant and already covered by your comment.
But I think its still covered by lying to congress in USC18.
‘lectric chair would be enough?
“However, Wyden knew when he asked the question that Clapper could not give a truthful answer.”
You keep saying that, but it’s simply not true. “That’s not a question I can legally answer in open session.” would be a truthful answer.
The simple fact is, he lied, and he didn’t have to. Yes, it IS an outrage that he didn’t lose his job.
The simple fact is, he lied, and he didn’t have to. Yes, it IS an outrage that he didn’t lose his job.
So torches, you freaking lazy people!
As Claire Wolfe said, “America is at that awkward stage. It’s too late to work within the system, but too early to shoot the bastards.”
More and more I think that period is drawing to a close. Neither party seems to have the will to even prolong it, let alone turn back the clock to the prior stage.
No sane person wants revolution, but we’re being dragged into the position of having it be the only way out. And the NSA is doing its share of the dragging.
Brett, you’re way more frightening to me than the NSA.
Have fun with that, Brett. I’m fighting for the Union.
Do you have a link/know roughly when Alexander was asked?
My comment upthread was not completely correct, the question asked of Alexander was about using cell phone intercepts to track the location of people, rather than capturing comms metadata.
See here.
The gist of the situation is the same.
By the way, Brett, since you’re so into the “right to privacy,” I guess you now support Roe v. Wade? Because surely if we have a right to privacy in our email, we also have a right in our organs. Or not?
Expectation of privacy, when software can allow random listening?
It’s a brave new world out there. NSA? Google? Random person? Expectation of privacy? No, not really.
Thanks, russell. It’s still a useful tidbit.
“‘lectric chair would be enough?”
What would be enough would be prosecution under the appropriate statute with a fair trial. What any non-VIP who lied to congress could expect.
Equal justice under the law.
sapient:
I’m confused about your point at 8:09. Your link is about malware in the chrome browser.
Are you suggesting that because malware exists we have no expectation of electronic privacy?
That’s like saying burglars exist, so we can’t expect privacy in our own home.
I’m sure you had a different point, but it escaped me.
Make a citizen’s arrest, friend.
As to your 8:24 pm comment, Thompson, don’t be confused. We really don’t have a pure expectation of privacy, do we? Holes in software can be exploited. What would the founders say about holes in software? What would they have said about thin walls? Can you channel the founders regarding thin walls?
Talk to me thompson about what the Founders thought about cubicles.
I’m not sure why it matters WTF Wyden was doing, little game, PR stunt, dare from his frat brothers, bumped his head on the way to the hearing, demonic possession, etc. Clapper lied, he should have resigned or been fired. That he didn’t and wasn’t speaks volumes.
Clapper lied, he should have resigned or been fired. That he didn’t and wasn’t speaks volumes.
That you aren’t marching on Washington speaks volumes.
By the way, Ugh, did you pay your nanny tax? Did you obtain a federal job after smoking dope?
Speaks volumes.
Did you ever drive over 20 miles over the speed limit and you weren’t charged with reckless driving?
Speaks volumes!
Let me ask you this, Turbulence, thompson, cleek, russell,
Why didn’t Wyden come forth with information he knew, from classified briefings, when he was shielded by the Constituion?
Speaks volumes!
Why are you so focused on Wyden? Suppose some other senator who didn’t know the answer to the question posed it to Clapper?
Why are you so focused on Wyden? Suppose some other senator who didn’t know the answer to the question posed it to Clapper?
Because that wouldn’t have been the real world. Suppose I were a butterfly.
In your opinion, would it have been okay for Clapper to answer as he did if Wyden’s question was posed by a senator who did not know the answer?
For the record, and as I have stated (a couple of times), I think Clapper should have weaseled out of the question. So, again, if somebody (including Wyden) asked him about the program, he should have been prepared with weasel words.
My main problem is that Wyden had an agenda. He could have pursued it with courage. Instead, he used Clapper as a fall guy. Most people here (except Julian, from what I can ascertain), are fine with that. You seem to be, as well, Ugh. I’m not. I think that if Wyden had something to say, he should have (and could have, with impunity), said so. Instead, he chose to make a fool of Clapper (or, more accurately, use him as a fall guy).
You like that. I don’t.
Speaking of things that may not be worthwhile, I cannot figure out what point y’all are making talking about Wyden and Clapper. Does this have anything to do with the question in my post, or are you just wrasslin’?
Thanks, Doc, for inspiring a vibrant conversation.
Honestly, regarding your post, I agree with (I think it was) Turbulence, who doesn’t think any one of us, in particular, can do a cost/benefit analysis of any particular agency or branch of government, even the non-secret ones. The fact is, despite the fact that you are a brilliant scientist, and I am a brilliant polymath (haha), we don’t have the particular knowledge about the vast array of things that each department of government does. I imagine that it’s a big job even for the people who are supposed to do that work full-time (say, the people on the House Ways and Means Committee and their staff).
You’ll recall the video clips of John McCain and others waxing on about the waste fraud and abuse inherent in various research programs that have funny names. Later we find out that those same programs were responsible for curing x number of cancers, etc.
i think the question is beyond the scope of our ordinary voter authority. But fine if anyone has put the time in to make an assessment on, say, the Air Force, or the Department of Homeland Security. Or maybe the Security and Exchange Commission.
Okay, thanks sapient. As I said, it doesn’t much matter to me what Wyden was up to for purposes of assessing Clapper’s conduct. He was on the record denying that the NSA was doing something it was, in fact, doing.
That’s problematic for a number of reasons. To cite just one example, we have Judge Pauley in footnote 17 of his opinion citing the testimony of NSA Director Alexander to help show that the government is not doing anything nefarious with the data it collects (to loosely paraphrase). He could have just as easily cited Clapper’s “clearly erroneous” (to use Clapper’s words) testimony.
To be a bit more on topic, if my memory serves, the agencies did go ballistic when Plame was outed. You probably didn’t notice, though, because the public face of them going ballistic was a small number of rather disgruntled off-the-record unsourced statements to reporters about widespread anger and shaken morale. We’re talking about clandestine bureaucratic organizations you’re not supposed to advertise you work for; did you really expect to see the rank-and-file taking to the streets or somesuch?
Dr Science, do you have any thoughts about the questions I raised here and here?
I’m sorry that our conversation here did not meet your expectations. To be honest, I didn’t find your question to be super well thought out. I’d have been happy to discuss this with you, but you didn’t seem interested in engaging with the commenters here who started asking questions or suggesting points about your post (just based on the observation that you didn’t post comments of any length). I can’t speak for anyone else, but for me at least the combination of not-super-well-developed-post plus no-engagement-from-author pretty clearly leads to conversation wandering to related topics that people are interested in discussing.
I don’t know if that bothers you, but this seems like the second time in recent weeks where you’ve posted something, then not really engaged with the comments, then had conversation drift in a direction that you didn’t care for, then expressed irritation that people weren’t talking about precisely what you wanted them to. I might be totally wrong or misremembering, but that’s my sense. Of course, you’re totally welcome to express irritation that these anonymous people scattered over the internet to whom you pay nothing are not doing exactly what you want or saying the things you think they should say, but it seems…unlikely to improve matters.
“I imagine that it’s a big job even for the people who are supposed to do that work full-time (say, the people on the House Ways and Means Committee and their staff).
You’ll recall the video clips of John McCain and others waxing on about the waste fraud and abuse inherent in various research programs that have funny names. Later we find out that those same programs were responsible for curing x number of cancers, etc.”
I see what your doing here, sapient, and I tend to agree with what I take to be your irony, but for clarification, I’d point out that “people doing that work full-time” and “John McCain and others waxing on” are mutually exclusive sets of people, with the first set virtually no longer existing and the second set having the goal of making all government action, except John McCain’s rank incompetence at flying his misbegotten missions in ‘Nam, the root of all evil, including curing cancer.
Brett speaks of government losing its credibility and what must be done, well, much effort has been put into convincing the American people that government has no credibility.
That said, I want the NSA sharply curtailed, but then my credit card was compromised by Target, so I want Target, the corporation, abolished too.
As in burned to the ground. The stores razed.
Happily, for some, that won’t happen, Target having a rich coterie of p.r. and advertising money to throw around, while civil service job classifications like “Public Information Officer, to get the word out, my former line of work, more or less, having been abolished, by John McCain and others, a cast of thousands of filth.
DocSci:
“Does this have anything to do with the question in my post”
I think it does, although tangentially. One of the prime ways citizens such as yourself can evaluate program success is by the words of their leaders.
As Clapper lied, it becomes less reasonable to trust his assessments of program efficiency. In other words, it weakens faith in self-reporting of the agencies.
Note, that’s not saying he always, or even frequently lies. It just weakens trust, requiring more verify.
Your left with other means of evaluating success. I linked to a post by Schneier earlier, which really was just links to two analyses on the very question you posed. I could summarizeh them I suppose, with “minimally effective”. However, like most thorough analyses, they require detailed reading.
For convenience I’ve cut out the middle man and linked them directly.
New America Foundation: http://natsec.newamerica.net/nsa/analysis
and Just Security publishing for Hoover Institution:
http://justsecurity.org/wp-content/uploads/2014/01/Connecting-the-Dots.pdf
sapient:
“any one of us, in particular, can do a cost/benefit analysis of any particular agency or branch of government, even the non-secret ones.”
I think these are examples of the analyses that voters can use to inform themselves. If they have questions and are so motivated, they can dig deeper, educate themselves, and form their own opinion.
Of course nobody can be an expert on everything. That’s why we have scientists and journalists. And the scientists and journalists, if they do their job well, provide raw data or sources for their data so that their analyses can be verified by others.
Lack of expertise on everything by the entire population (a given) does not mean we are pretty much left with trusting government officials at their word.
irrelevant. Clapper is the person who lied, in public, about the NSA. he could’ve said “no comment”, “can’t talk about there here”, or any other deflection. but he didn’t. he chose to lie. and then to lie about his lie. that’s all Clapper.
your need to make this about Wyden is really kinda … weird.
Etc.
Argumentum ad misericordiam.
Quit being an apologist, sapient. Whether Clapper did wrong or not is the question (actually, it doesn’t appear to be in question at all, but you seem to want it to be), and isn’t in any way falsified by what sort of consequences are imposed on him.
As Julian pointed out, if a witness is going along testifying and answering questions, then is suddenly presented with a yes or no question that he has to deflect, a deflection creates an impression to people listening as to the answer. Clapper was bound to keep the program secret. If he took that responsibility seriously, he wouldn’t want even to hint about its existence with a deflection.
As to perjury, you might want to read about the element of materiality. Since thompson wanted a citation, I’ll refer him to the Justice Department’s criminal resource manual.
“A false statement is material if it has ‘a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed.'”
In other words, if everyone on the deliberative body knew that Clapper would not be able to divulge the answer to the question, and they already knew the answer to the question, there was no material perjury since his answer was clearly not intended to influence the decision of the decision-making body, but merely to keep the secret.
I don’t “need” to “make this about Wyden. ” This clearly was about Wyden. Wyden wanted to get credit for making the secret program public without taking the political risk of doing so himself. It’s as simple as that.
Then you can stop anytime, now, can’t you?
“Wyden wanted to get credit for making the secret program public without taking the political risk of doing so himself. ”
I suspect if he’d done that you’d be going on about the wild irresponsibility of Wyden for doing this. Clapper could have evaded the question without lying. Wyden could have pointed to the evasion. That’s my guess about Wyden’s motives, if the object here is to investigate anyone who raises questions about the NSA.
In case you wondered what Clapper’s other oath was (which I’m sure you didn’t wonder, because you’ve already decided that Clapper is bad), it’s something like this (which, you’ll notice, includes “conduct, or by any other means”:
“I do solemnly swear that I will never divulge, publish nor reveal either by word, conduct, or by any other means such classified information, intelligence or knowledge, except in the performance of my official duties and in accordance with the laws of the United States, unless specifically authorized in writing is each case by
a competent official of the United States Government.”
At the very least, people could acknowledge that there was a dilemma here.
I can neither confirm nor deny the existence of a dilemma.
I suspect if he’d done that you’d be going on about the wild irresponsibility of Wyden for doing this.
Since he didn’t have the political courage to do it, we’ll never know what I would be going on about. What I do know is that Wyden didn’t take a conflicting oath, and wouldn’t have gone to jail for “divulging, publishing or revealing either by word, conduct or by any other means …” Clapper was supposed to keep this stuff completely secret, not play games with it.
My natural reluctance to offer advice to lawyers on how to argue more effectively is taking a beating, here.
Slart, never change!
this is miles beyond silly at this point.
asking a question that you already know the answer to is completely normal, in fact recommended, procedure in any kind of adversarial proceeding. which is what this was.
ask any attorney.
asking a question that puts your interlocutor uncomfortably on the spot, likewise.
as to wyden’s motive, maybe he just wanted to see if clapper was full of shit. if so, then asked and answered.
asking a question that you already know the answer to is completely normal, in fact recommended, procedure in any kind of adversarial proceeding. which is what this was.
It wasn’t an adversarial proceeding. It was an information gathering proceeding. And Wyden not only knew the answer, but he knew that Clapper had taken an oath not to reveal (in any way, even by conduct) the answer. Wyden was in the wrong.
like i said, ‘weird’.
“A false statement is material if it has ‘a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed.'”
It was an open hearing. Clapper wasn’t lying to Congress, he was lying to you and me. In a democracy, the public are a decision making body, too.
That’s cool, Brett! Democracy by TV!
And we should definitely valorize Wyden for trying to discredit Clapper. What a hero! Next week: show trials!
Was Clapper forced to lie?
I don’t know what was in Clapper’s mind, russell.
I know this: He was bound by oath not to disclose classified information, not only by what he said, not by his behavior, etc. Wyden knew that. Wyden knew about the program. Wyden asked him about it in an open session. That was a bullying tactic, not a good faith inquiry.
His lawyer says this. Maybe that’s the truth.
If you think that personal gotcha games are an appropriate use of Congressional time, that’s your right. Sometimes there’s a reason to try to show that a witness is a lying SOB. In this case, the question was meant to force Clapper to compromise a secret, against his oath. If Wyden wanted to disclose the program, he should have just done so.
you don’t have to know what was in his mind – i didn’t ask anything about intent or state of mind.
my question is much simpler – was he forced to lie? i.e., did he have any options other than lying?
was there something else he could have said that would have (a) not required him to disclose classified information, and (b) been true?
His lawyer says this. Maybe that’s the truth.
What his lawyer says is that he was caught off guard by the question, and mistakenly addressed the question of whether content (rather than metadata) was being collected on US persons.
That could be true. In which case, his response was not a lie, but an error.
And, he has subsequently corrected what he said, and apologized for the error. And, no action has been taken against him for his statements.
For the record, there is no lack of history of folks from the intelligence community either misrepresenting or simply lying to the public, or to the folks responsible for overseeing their activities. And no, I won’t provide cites, because there isn’t enough time in the day.
In that context, it is my opinion that it is completely appropriate for members of Congress to place, and keep, principals of the intelligence agencies on the hot seat.
So I have no problem with Wyden squeezing Clapper in an open hearing. It’s unfortunate that Clapper gave an inaccurate answer, but that is frankly on him.
My opinion, you’re entitled to your own.
In the words of Ron Burgundy, “Agree to disagree.”
sapient:
Thanks for providing the link. I’d like to point to the very next line after your quote:
“The testimony need not have actually influenced, misled or impeded the proceeding. For example, potential interference with the grand jury’s line of inquiry suffices to establish materiality…”
And while not 100% clear, it seems similar standards are held under USC18/1001.
I’m still left with a lie to congress that likely impeded Wyden’s line of questioning and the hearing as a whole.
He could have easily deflected to a closed session without lying. And no, saying operational details are classified is not basically a “yes”.
Perhaps it was an error because he was confused by the question. I find it unlikely, and also troubling that the DNI would be so easily confused.
This is problem, because it degrades trust in our leaders and our government.
But at some point, you disagree with that analysis. Fine. I’m not sure where or why, but that’s where we’ll have to leave it.
Also, Donald, thank you. I thought your comment @8:42 re: Wyden’s motives was spot on. Although I can’t speak for Sen. Wyden.
But it would be a good way to start a conversation about what the limits should be without revealing operational details.
Again relevant to the original post. The Privacy and Civil Liberties Oversight Board has issued a report.
http://www.mcclatchydc.com/2014/01/23/215466/privacy-advisory-board-repudiates.html#storylink=rss
The DNI lawyer really should have just let it rest. He’s not making things any better.
I think there might be some room here for a positive defense give his duties as DNI, had he made a non-answer that could ambiguously imply that the question “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” had a classified answer. IANAL. But caught between two laws, he was arbitrarily choosing to clearly break one rather than ambiguously break another.
Also, if Wyden had reached the conclusion (as the Privacy and Civil Liberties Oversight Board did, per thompson’s link above) that the NSA program was not legally sound, I’m curious why it would be incumbent upon him to suffer the consequences of making it public rather than pressuring the parties who he perceived to be breaking the law to bear the burden. It’s only “cowardly” for him to do that if we assume he was acting out of self-interest and not a sense of working for the public good – something he could not continue to do after being crucified and removed from his committee – and if we refuse to consider the possibility that the NSA had (illicitly) classified an illegal program (which I think is a point worth considering; even if the sympathetic FICA court deemed it lawful based on open-court precedents, the legality could not be appealed or tested in open court due to its classified status – it’s really hard to avoid reaching the conclusion that this amounted to secret law).
he was caught off guard by the question
How is that physically possible since Wyden’s staff sent him the question the day before? I mean, is he so incredibly incompetent that he didn’t bother prepare for testifying before Congress?
Clapper has a staff of deputies and assistants; how could he not know about the question when Wyden sent it to him in advance?
How is that physically possible since Wyden’s staff sent him the question the day before?
Lawyer says he didn’t read it.
a point worth considering; even if the sympathetic FICA court deemed it lawful based on open-court precedents, the legality could not be appealed or tested in open court due to its classified status
That is the point made in Leon’s opinion. The government said he did not have jurisdiction to rule on whether it was legal or not, and he agreed.
it’s really hard to avoid reaching the conclusion that this amounted to secret law
The law itself – section 215 of the USA Patriot Act – is not secret.
The findings of the FISC about whether a given program or investigation are legal is secret. And, apparently, cannot be reviewed once they have made a decision.
So, legal, but FUBAR.
Not only does secrecy enable corruption, it enables incompetence. What’s the first thing you make secret? Your mistakes.
A quick note and apology, I dropped into superuser and found a passel of comments marked spam. A number of them were from Russell as the spam filter clearly caught his combative tone [/ironic], but they were far enough back that I just left them there. There was also a comment by a new commenter whose name I now forget. If you posted and didn’t see your comment, don’t despair!
Lawyer says he didn’t read it.
heh.
So, let me get this straight. If we pass a law initiating a secret program, and the program is in fact a constitutional travesty, then we cannot ask about the program because it is lawfully secret?
Just trying to get my bearings.
IMO we should be discussing the questions raised in the post…political questions about the great National Security State we have erected and the ominous turn it appears to be taking.
It strikes me the discussion is lost in the weeds of a particularly controversial but minor exchange at a Congressional hearing.
The law itself – section 215 of the USA Patriot Act – is not secret.
The findings of the FISC about whether a given program or investigation are legal is secret. And, apparently, cannot be reviewed once they have made a decision.
Well yes. The authorizing law is not secret. But it includes gag orders and such so as to make it difficult to know that the law has been used against you (even before considering things like parallel construction) and restricts your available venues of legal recourse. The FISC case law regarding the legality of specific implementations is classified (and not subject to any review below the SC) so even if you do try to challenge a FISC-approved directive you don’t have access to the prior decisions that will be considered in deciding your petition. It really is secret law. Yes, not all of it is secret, but enough of it is. It may be legal, but it’s still secret law, and that’s toxic to a healthy democracy.
johnw:
“What’s the first thing you make secret? Your mistakes.”
NomVide:
“but it’s still secret law, and that’s toxic to a healthy democracy.”
Dead on, both of you.
bobbyp:
“IMO we should be discussing the questions raised in the post”
I’ve posted some links to analyses about legality and effectiveness.
I like to think that its all just so far beyond the pale that nobody has much to say about the implications. They are just bad, which isn’t the most fascinating discussion.
Probably wishful thinking on my part đŸ˜›
So how do I verify?
It seems to me that we have some limited means to verify, but no particular consequences flow from that.
So, there is judicial review in the form of the FISC, but they rarely deny requests for court orders, and the chief of the FISC has stated publicly that there’s little they can do to ensure that the intelligence communities comply with the terms of the order. And FISC’s oversight only reaches to the legality of the programs, not to their effectiveness.
There is potentially additional judicial review, if anyone with any standing manages to discover that they’ve been harmed in any way by the programs and brings suit. That review cannot address the legality of the programs, and absolutely has nothing to say about their usefulness or effectiveness.
There is executive oversight in the form of the Privacy and Civil Liberties Oversight Board, the majority of whom have found the metadata capture program to be illegal, constitutionally worrisome, and not all that useful. Their findings are not binding, and will likely be ignored.
There is Congressional oversight in the form of the intelligence committees. They rely primarily on briefings from the intelligence agencies themselves. They could, potentially, shut programs down by law or by defunding them. I can’t think of a recent example of that happening.
The President is briefed on the programs, and could terminate them if he felt they were illegal or not useful. So far that hasn’t happened.
There is information available to the public from non-classified sources, and from whistleblowers and other leaks. And that information is regularly analyzed in pieces like the ones thompson cited. Ultimately, the public could respond to that information by demanding that programs they find offensive be ended. Assuming that were to happen, which is frankly not in evidence, that might, or might not, have an effect.
So I would say we have been told we must trust, but there is no reliable way to verify, outside of a very limited and rareified circle of people. And there is even less means of ending or changing programs that might be found to be illegal or simply not wanted.
It seems to me that this particular program is not legal, because it doesn’t meet the bar of the amended section 215 of USA Patriot. The information being collected is not, as it is required to be, directly relevant to any particular investigation.
The number of people on a planet of 6 or 7 billion who can actually do anything about that numbers in, I would guess, the low dozens. None of them appear to have any interest in changing a thing.
This is really not much different from the state of things under President Bush in that regard. Perhaps once Obama is out of office, sapient will be less enthusiastic in his support for the expanding status quo in the area of snooping private citizens.
This is really not much different from the state of things under President Bush in that regard.
The only really significant difference I can see is that we know more about the programs. And that is due almost entirely to the illegal disclosures made by Snowden & co.
we knew something about them under Bush, too.
here’s a nice timeline:
https://www.eff.org/nsa-spying/timeline
Snowden provided more details and his personal escapades have given all of this a focus, but the bulk of this stuff was known. Bush spent a lot of energy defending this stuff, and was forced to change things due to the publicity.
remember the big NYT story where they revealed the NSA was forcing telcos to cooperate ? remember when Gonzalez made his hospital-bed-side visit to Ashcroft to get Ashcroft to authorize an extension NSA spying?
Perhaps once Obama is out of office, sapient will be less enthusiastic in his support for the expanding status quo in the area of snooping private citizens.
Perhaps. I don’t deny that I trust how my preferred President handles many things over someone I don’t support, given the huge amount of power that we, the people, hand to a President (whether or not he’s got my metadata).
What bothers me hugely is this: I participate in the election of government, and believe in our system, as flawed as it is. The fact that many corporations have seemingly infinite access to information about people who, in some cases, have to deal with them, with few enforceable restraints, make it seem odd to me that people hyperventilate over the government collecting “outside the envelope” data that they’ve already given to the government.
Because, as we all know, corporations aren’t ever corrupt, and their social conscience is well established! Their information is well-protected, and rarely hacked! They have no political agenda! And they’re not capable of wrongdoing having grave social consequences, not having recently brought down the world economy, or anything, with their malfeasance! And everything they do is just as transparent as glass!
I’m concerned with safeguards and protections regarding the collection and use of private data by the government. But it bothers me hugely that our government might have less access to information than corporations take for granted. Our government’s position vis a vis other governments, and paragovernmental organizations is also something to consider. Allowing the NSA to have 1950’s style “signal intelligence” – I’m not sure what that means anymore.
The motivations of the “leakers” or “whistleblowers” are worth considering, not just the fact that there’s a “conversation” going on (which has been the case since before I was a teenager – cleek is correct about the more recent “conversations”). Whose agenda is being served here? Is it really we, the people? I think it’s the libertarian and corporate right wing.
… that they’ve already given to the government.
Typo: I meant, already given to a corporation.
But it bothers me hugely that our government might have less access to information than corporations take for granted.
Corporations can’t f***k with me to the same degree and in the same ways that the government can. And it’s actually not that uncommon for people, especially people whose point of view positions them as dissenters, to be f***ked with.
Corporations mostly just want to sell me something. It’s pretty easy to just say no.
There are ways in which corporations can, in fact, screw with us using the information they hold. Mess with credit ratings, etc.
IMO that should be against the law, and it mostly is.
In the end, the fact that corporations have information about us also doesn’t really make what the government does any better or worse. It’s good or bad on its own merits.
I’d be delighted to have nice strong data privacy laws in this country, but that’s sort of a separate issue for how government obtains and uses information about us.
remember when Gonzalez made his hospital-bed-side visit to Ashcroft to get Ashcroft to authorize an extension NSA spying?
lol. i’d almost forgotten about that one.
good times.
Corporations in the aggregate have lots of information, but a given corporation doesn’t have access to all the information that all the other corporations have. The government can aggregate the information of many corporations.
And what russell said. Target isn’t going to investigate me, throw me in jail or sic the IRS on me (and then throw me in jail).
“Because, as we all know, corporations aren’t ever corrupt, and their social conscience is well established! Their information is well-protected, and rarely hacked!”
Nobody knows that. I’d venture to say many people knows the converse.
People can be concerned both about corruption in the government and in the private sector.
Indeed, it’s the combination that’s so toxic to democracy. Much of the government’s argument stems from there not being a 4A consideration, because they aren’t accessing *our* data. They are accessing Verizon’s data. Or google’s data. Or what have you.
Further, the government is distinct because it can collect and cross reference from multiple companies. My credit cards and my phone calls and my utility bills etc. To me, this heightens the need for oversight.
Finally, I can choose not to interact with a company if I don’t like their privacy policy. It can be hard at times, but I have some choice in the matter.
I don’t like that if I decide I can “trust” my ISP, it seems to automatically mean I trust the government. Because my web traffic is now a business record, and those are constitutionally unprotected (according to the government).
Finally:
“I don’t deny that I trust how my preferred President handles many things over someone I don’t support”
To me, this is dangerous, because power will shift and someone incompetent will eventually be elected (in my mind that’s happened pretty consistently, YMMV).
Because, as we all know, corporations aren’t ever corrupt, and their social conscience is well established! Their information is well-protected, and rarely hacked! They have no political agenda! And they’re not capable of wrongdoing having grave social consequences, not having recently brought down the world economy, or anything, with their malfeasance! And everything they do is just as transparent as glass!
And this! I’m not sure what crowd you think you’re talking to here, but I guess choirs don’t mind hearing a little preaching now and then.
“The fact that many corporations have seemingly infinite access to information about people who, in some cases, have to deal with them, with few enforceable restraints, make it seem odd to me that people hyperventilate over the government collecting “outside the envelope” data that they’ve already given to the government”
I feel the same way about the hyperventilating our government officials and politicians engage in over Snowden, like the poor dears really care so much about the rule of law.
“Whose agenda is being served here? Is it really we, the people? I think it’s the libertarian and corporate right wing”
Here’s Glenn serving the interests of the corporate right wing back in 2010–
link
A quote from the article–
“But that’s the least of what makes McConnell such a perfect symbol for the legalized corruption that dominates Washington. Tellingly, his overarching project while at Booz Allen and in public office was exactly the same: the outsourcing of America’s intelligence and surveillance functions (including domestic surveillance) to private corporations, where those activities are even more shielded than normal from all accountability and oversight and where they generate massive profit at the public expense. Prior to becoming Bush’s DNI, McConnell, while at Booz Allen, was chairman of the Intelligence and National Security Alliance, the primary business association of NSA and CIA contractors devoted to expanding the privatization of government intelligence functions. ”
Target isn’t going to investigate me, throw me in jail or sic the IRS on me (and then throw me in jail).
Target might very well investigate me if I pose a risk to Target’s profitability. Target may very well blackmail me if I run for office. Target can do a lot of things that we’re supposedly worried about Government doing. And maybe Target can cause me to be put in jail if Target wants to work with a government, not necessarily the government of the United States.
I mean, we’re all very creative with our paranoia about what government can do, IF government is abusing its power. I would suggest we think about what corporations are capable of doing.
And this! I’m not sure what crowd you think you’re talking to here, but I guess choirs don’t mind hearing a little preaching now and then.
Really? I don’t hear much of an outcry. Why, because we (many of us) give that data to corporations freely. Unless we (oops, I mean, the Feds) interfere in some way, what are they doing with that data? What control do we as individuals have against corporations with all that data?
I can choose not to interact with a company if I don’t like their privacy policy.
I’m glad that you “trust” their privacy policy, just because they’re your “preferred” provider. I’m sure that when corporate abuse happens, the abusers are following their privacy policy to the letter. (And, by the way, I trust my President because he’s my preferred President. At least I get to vote on that office.)
Much of the government’s argument stems from there not being a 4A consideration, because they aren’t accessing *our* data. They are accessing Verizon’s data. Or google’s data. Or what have you.
To be clear, the government’s argument is that there isn’t a 4A issue because the information they are collecting is information *about* the call, not the *content* of the call.
And, in fact, they are correct on that point.
The issue with the telephony metadata program is that the feds are *by law* (i.e., by a statute passed by Congress, rather than by Constitutional guarantee) not supposed to collect even the metadata on phone calls where both parties are in the US without a court order.
If either or both parties are outside the US, it’s fair game. And the court order does not require reasonable doubt, the information just has to be relevant to an investigation.
The sticking point legally is whether the metadata they are collecting is actually relevant to a particular investigation.
Their argument apparently is that it is, because the method they are using to conduct the investigation requires a database of every phone call made by anyone in the US over the last five years.
The executive oversight board (and Leon, and others) finds that argument deficient, because it’s more or less circular.
To me, it looks like the NSA wants it both ways here. They want the information because they assert that it’s relevant and even essential to their investigations, but they tell us that we shouldn’t worry about it because 99.99% of the information will never be seen by anyone, because it’s not relevant to any investigation.
Long story short, there is good reason why we have laws limiting what information the government can have about us, and what use they can make of it. If we’re going to ignore the law every time it presents any impediment, then there’s no point in having the law.
Everybody obeys the laws when it’s convenient to do so.
If the law is preventing them from doing something really essential, demonstrate that and change the law. If there’s anyone in today’s environment who is going to be able to fast-track changes to security law, it’s the intelligence communities. All they need to do is find one freaking bloody shirt, and they’ll win the day.
But while the law stands they need to observe it.
I would suggest we think about what corporations are capable of doing.
Fine with me. Let’s get some bulletproof data privacy laws on the books. You can absolutely sign me up for that.
All of that has nothing whatsoever to do with how the government uses information it collects about us.
Nice misdirection, though.
Donald, Glenn’s just engaging in the usual “both sides do it” charade. His point about outsourcing is a good one, but we can blame the Reagan revolution, and his hope for a libertarian paradise, for that poisonous mindset.
Basically, complex societies have to function with the help of large organizations. I pick government as the organization over which, if we’re vigilant, we can have more control. Glenn (like thompson) doesn’t seem to like either. Well, the cave is too uncomfortable for me.
I mean, we’re all very creative with our paranoia about what government can do, IF government is abusing its power. I would suggest we think about what corporations are capable of doing.
Your creativity with your paranoia about what Target can and might do to you is leaving everyone else’s creatity in the dust. The “Look over here” argument is wearing thin.
But while the law stands they need to observe it.
The government takes the position that it is observing the law. Obviously, the government’s interpretation of Section 215 is controversial, but the question isn’t settled.
The “Look over here” argument is wearing thin.
I admire your faith in the Koch brothers.
“Really? I don’t hear much of an outcry.”
Perhaps because the post was about the government’s data collection and not about corporate data collection?
I mean, I don’t hear much outcry about our massive prison population on this thread but I don’t take it to mean nobody cares.
“I’m glad that you “trust” their privacy policy, just because they’re your “preferred” provider.”
Huh? You quoted me as saying I can not work with a company if I don’t want to. Nothing you said was in response to that.
And finally, the whole Target thing was just ridiculous. Target can refuse to accept my returns, that’s pretty much it. I suppose they can break laws against blackmail and kidnapping, but at this juncture in time I’m not really worried about their ability to get away with it.
You are free, however, to avoid target if you are worried about ending up in a jungle prison somewhere.
Basically, complex societies have to function with the help of large organizations. I pick government as the organization over which, if we’re vigilant, we can have more control.
I think, as a very general matter, the point here is that the overwrought security state isn’t necessary for our complex society to function, so I wouldn’t trust government or corporations to operate it. We don’t need it. In fact, it’s getting to the point were it may damage our complex society’s ability to function. Preferring government over the private sector isn’t compelling when you don’t want whatever it is either one of them might be doing in the first place.
I’d rather have an elephant take a giant crap on my head than a whale. Does that convince you that you should want an elephant to take a giant crap on your head?
Target can refuse to accept my returns, that’s pretty much it. I suppose they can break laws against blackmail and kidnapping, but at this juncture in time I’m not really worried about their ability to get away with it.
I guess you’ve never considered the political power of Rupert Murdoch or the Koch Brothers. But maybe that’s because you’re sympathetic to their agenda.
I guess you’ve never considered the political power of Rupert Murdoch or the Koch Brothers.
The political power of Murdoch or the Kochs is not based on their ability to accumulate information about phone calls I make.
This is called “misdirection”, and it’s used by magicians, attorneys, and people fielding weak arguments.
But maybe that’s because you’re sympathetic to their agenda.
Could it be…. Satan?
I think, as a very general matter, the point here is that the overwrought security state isn’t necessary for our complex society to function, so I wouldn’t trust government or corporations to operate it.
What does “overwrought security state” mean? The particular NSA program that we’re talking about is one where the NSA accumulates information that exists (in large quantities) in the hands of a few communications companies. They already have the data which can be abused for nefarious purposes. Our communications technology system (which is more and more essential to our way of life) is dependent on these companies.
Whether or not there’s a “overwrought security state” whatever that is, there’s a ton of data out there that can be abused by people who want to abuse it. We can’t just press delete. It’s there. Do we want it just in the possession of corporations, or do we want the government to have as much power as they do?
I would rather my government have as much information as corporations than less information. It has nothing to do with “overwrought national security.” It has to do with the fact that information is power, and the information is out there for various entities to use or misuse.
This may be the smartest idea Matthew Yglesias ever had:
He said, in July of 2008.
russell:
“To be clear, the government’s argument is that there isn’t a 4A issue because the information they are collecting is information *about*”
Sorry I wasn’t clear. You are right, that’s mostly what we are discussing.
Other apologists of the program have brought up the “business records”/”library records” aspect of Section 215 to defend its legality.
E.g. Since I willing gave the information to Verizon, it’s Verizon’s now, and they are free to give it to the government for any reason they want.
The political power of Murdoch or the Kochs is not based on their ability to accumulate information about phone calls I make.
No, it’s not based on that, but it most certainly will be enhanced by that when their companies make a hostile takeover of Verizon. Fine with me if you wilfully ignore the problem here.
If your aim is to drown this conversation with irrelevancies: mission accomplished.
No, the REAL problem is the Rosicrucians and the Masons.
If your aim is to drown this conversation with irrelevancies: mission accomplished.
If you want to demonstrate that you see the world with blinders on: mission accomplished.
I can be aware of other problems in this world without dragging them into this conversation. Why can’t you be?
“I guess you’ve never considered the political power of Rupert Murdoch or the Koch Brothers.”
I don’t think either of them own target. But in general, yes, their political influence concerns me. I still think an FBI agent with a grudge has far more capacity to see me imprisoned that Murdoch.
“But maybe that’s because you’re sympathetic to their agenda.”
I’m not.
“I would rather my government have as much information as corporations than less information.”
Why, exactly? If you’re concerned about Verizon having your phone records, don’t use Verizon. I don’t see that the power Verizon has over you based on those records is anyway blunted by the government having the same records.
Well, I’ll say it one more time: I’d rather see government have access to vast amounts of information (with appropriate due process controls regarding its use) than corporations whose “privacy policies” I trust much less.
I’m out of this thread. Tired of the snark.
Never change, sapient.
Fine with me if you wilfully ignore the problem here.
Not so fine with me if you obfuscate the actual discussion by dragging in things that have little or nothing to do with it.
Sadly, there doesn’t seem to be anything anyone can do about that.
First Wyden, now the Kochs. Anything under the sun other than the NSA and its principals.
Some people like to be tied up and beaten with whips. Some will actually pay good money for the privilege.
If I engage in a discussion of torture by the government, I don’t feel obliged to ask why folks aren’t also worried about the S&M industry.
Likewise, when I’m discussing the possible illegal collection of information by the government, I don’t feel like I need to address similar behavior on the part of private actors.
It’s an interesting topic in its own right, and may in fact be prone to its own world of abuses and bad behavior.
But it has bugger-all to do with the NSA programs we’re discussing.
I’ll say it one more time: I’d rather have an elephant take a giant crap on my head than a whale.
sapient: Tired of the snark.
Also sapient:
“You and Scalia need to have a seance.”
“And although we’re really pretty smart, and can read wikipedia,”
“Your premise is dumb, thompson.”
“Go ahead and applaud abuse if you want to.”
“In the game of “PR gotcha”, Weyden “got” Clapper, no question. That’s all. Applause, applause.”
“But, honestly, I think Wyden’s motives were pretty sleazy. But, applause!”
“But, sure, let’s go ahead and put his head on a pike to show our disapproval.”
“By the way, did I mention that we should hang Clapper?”
“‘lectric chair would be enough?”
“So torches, you freaking lazy people!”
“Make a citizen’s arrest, friend.”
“What would the founders say about holes in software? What would they have said about thin walls? Can you channel the founders regarding thin walls?”
“Talk to me thompson about what the Founders thought about cubicles.”
“That you aren’t marching on Washington speaks volumes.”
“By the way, Ugh, did you pay your nanny tax? Did you obtain a federal job after smoking dope? Speaks volumes.”
“Did you ever drive over 20 miles over the speed limit and you weren’t charged with reckless driving? Speaks volumes!”
“Suppose I were a butterfly.”
“Slart, never change!”
“That’s cool, Brett! Democracy by TV! And we should definitely valorize Wyden for trying to discredit Clapper. What a hero! Next week: show trials!”
“I admire your faith in the Koch brothers.”
Our communications technology system (which is more and more essential to our way of life) is dependent on these companies.
So they need the information you don’t like them having, because the Koch brothers might buy them out, in order to function in a way that is essential to our way of life?
The government having that same information doesn’t negate the fact that these comms companies have it, right? (And if it did, there goes our way of life.)
Therefore… she’s a witch!
“Talk to me thompson about what the Founders thought about cubicles.”
Forsooth! What heinous crimes have these poor souls committed? Verily, we must ratify the 8th amendment posthaste!
I am aware that the utterer of the following just bowed out of the thread, and I’m about to deliver a sermon to a rather bored-looking choir, but…
…and the law the gov’t claims to be observing was crafted in such a way as to make definitive settling difficult, and gov’t agencies are taking further measures to move it towards impossible. If you don’t know you’ve been subject to an abuse of power, and can’t get standing without demonstrating you have been, that question-settling looks conveniently deferred in an indefinite manner.
This is misleading. The com corps don’t have this information. They have data from which the information can be generated. Information is power, but data is only unrefined fuel, and that refinement is a decidedly non-trivial task. The telecoms don’t have either the dedicated resources or expertise to generate the same volume and quality of information that the intelligence community does, and that’s even before we consider that they have uncollated, incomplete corporate data and none of the additional gov’t’l data.
So no, the telecoms having the data they collected from their own clients is not the same as the gov’t having all of their assorted data collated and analyzed.
Not to mention that the idea that a telecom can do things, based on such information, remotely comparable to what the federal government can do is, um…interesting.