Quote of the Day: The Abuse of Domestic Spying

I continue to find the level of domestic spying on citizens in America frightening - not to mention a violation of the U.S. Constitution's provisions against unlawful search and seizure.  Yet Barack Obama and others have continued to defend the unconstitutional practice using the excuse that it is necessary to fight terrorism and national security.  The Nazi regime used the national security ruse in the 1930's and we all know what that lead to down the road.  The potential for abuse is simply too great and there are in truth no effective controls in place to prevent abuse should someone in the government decide to do so.  In a post Andrew Sullivan sums things up well after at first defending the practice.  The final straw for him was the holding and interrogation of reporter Glenn Greenwald's husband: 

When the NSA leaks burst onto the scene, I was skeptical of many of the large claims made by civil libertarians and queasily sympathetic to a program that relied on meta-data alone, as long as it was transparent, had Congressional buy-in, did not accidentally expose innocent civilians to grotesque privacy loss, and was watched by a strong FISA court.

Since then, I’ve watched the debate closely and almost all the checks I supported have been proven illusory. The spying is vastly more extensive than anyone fully comprehended before; the FISA court has been revealed as toothless and crippled; and many civilians have had their privacy accidentally violated over 3000 times. The president, in defending the indefensible, has damaged himself and his core reputation for honesty and candor. These cumulative revelations have exposed this program as, at a minimum, dangerous to core liberties and vulnerable to rank abuse. I’ve found myself moving further and further to Glenn’s position.

What has kept me from embracing it entirely has been the absence of any real proof than any deliberate abuse has taken place and arguments that it has helped prevent terror attacks. This may be too forgiving a standard. If a system is ripe for abuse, history tells us the only question is not if such abuse will occur, but when. So it is a strange and awful irony that the Coalition government in Britain has today clinched the case for Glenn.

A disclosure upfront: I have met David Miranda as part of a my friendship with Glenn Greenwald. The thought of his being detained by the British police for nine hours because his partner embarrassed the American government really sickens me at a gut level. 

My obvious question is: what could possibly lead the British security services to suspect David of such ties to terror groups? 

[A]lthough David was released, his entire digital library was confiscated – including his laptop and phone. So any journalist passing through London’s Heathrow has now been warned: do not take any documents with you. Britain is now a police state when it comes to journalists, just like Russia is.

In this respect, I can say this to David Cameron. Thank you for clearing the air on these matters of surveillance. You have now demonstrated beyond any reasonable doubt that these anti-terror provisions are capable of rank abuse. Unless some other facts emerge, there is really no difference in kind between you and Vladimir Putin. You have used police powers granted for anti-terrorism and deployed them to target and intimidate journalists deemed enemies of the state.

You have proven that these laws can be hideously abused. Which means they must be repealed.

Do Snowden Charges Show Obama’s ‘Vindictive Mentality’?

One of my biggest disappointments with Barack Obama is that he has continued some of the worse practices of the Bush/Cheney regime when it comes to spying on Americans and other police state tactics.  Now, apparently greatly peeved that Edward Snowden showed just how pervasive domestic surveillance has become, the Obama administration has filed criminal charges against Snowden and seemingly wants to make an example of him as is being done with Bradley Manning.   Or at least that's the view of gay journalist Glen Greenwald who helped break the story of what has really been going on in an article last month in The Guardian, a British newspaper.  Talking Points Memo looks at Greenwald's assessment of Obama and what Greenwald calls a "vindictive mentality."  Here are highlights:

The Guardian's Glenn Greenwald on Friday blasted President Barack Obama for filing espionage charges against National Security Agency leaker Edward Snowden, saying it reflects the administration's "vindictive mentality."

Greenwald, who broke the stories on the NSA's surveillance programs based on information provided by Snowden, told MSNBC's Chris Hayes that while the response was par for the course for an Obama administration that has aggressively pursued leakers, he rejected the notion that the 29-year-old former government contractor engaged in espionage.

“I think it’s very surprising to accuse somebody of espionage who hasn’t worked for a foreign government, who didn’t covertly pass information to an adversary-enemy of the United States, who didn’t sell any top secret information, who simply went to newspapers, asked newspapers to very carefully vet the information to make sure that the only thing  being published are things that inform his fellow citizens but doesn’t harm national security," Greenwald said in a phone interview. "That is not espionage in any real sense of the word.”

Greenwald argued that the Obama administration is notorious for "overcharging," and that the charges filed against Snowden reveal an "extreme zealousness" and "vindictive mentality."

Sadly, I am inclined to agree with Greenwald.  In the case of Bradley Manning, huge efforts have been made to punish Manning while little or nothing has ever been done to hold those accountable who engaged in the murder of civilians and other atrocities.  Obama seems obsessed with keeping the truth about American misdeeds and government actions that may well be unconstitutional hidden from view.   It's very, very disappointing.

Is the NSA's Surveillance Unconstitutional?

As noted before, I do not like the growing police state tendencies in America as most recently revealed in the NSA's sweeping surveillance operations that despite claims to the contrary to pull American citizens into the web of communications being monitored and in some cases being turned over to other police and law enforcement agencies.  I am all for stopping terrorists, but when American citizens are subject to the same levels of surveillance as on finds in China, Russia and Iran, something seriously wrong has happened to freedom in this country.  A column in the Washington Post looks at why the NSA surveillance of Americans is likely unconstitutional.  Here are excerpts:

 

The National Security Agency’s recently revealed surveillance programs undermine the purpose of the Foreign Intelligence Surveillance Act, which was established to prevent this kind of overreach. They violate the Fourth Amendment’s guarantee against unreasonable search and seizure. And they underscore the dangers of growing executive power.

 The intelligence community has a history of overreaching in the name of national security. In the mid-1970s, it came to light that, since the 1940s, the NSA had been collecting international telegraphic traffic from companies, in the process obtaining millions of Americans’ telegrams that were unrelated to foreign targets. From 1940 to 1973, the CIA and the FBI engaged in covert mail-opening programs that violated laws prohibiting the interception or opening of mail. The agencies also conducted warrantless “surreptitious entries,” breaking into targets’ offices and homes to photocopy or steal business records and personal documents. The Army Security Agency intercepted domestic radio communications. And the Army’s CONUS program placed more than 100,000 people under surveillance, including lawmakers and civil rights leaders.
 

Congress passed the 1978 Foreign Intelligence Surveillance Act (FISA) to limit sweeping collection of intelligence and create rigorous oversight. But 35 years later, the NSA is using this law and its subsequent amendments as legal grounds to run even more invasive programs than those that gave rise to the statute.

 

We’ve learned that in April, the Foreign Intelligence Surveillance Court (FISC) ordered Verizon to provide information on calls made by each subscriber over a three-month period. Over the past seven years, similar orders have been served continuously on AT&T, Sprint and other telecommunications providers.

Another program, PRISM, disclosed by the Guardian and The Washington Post, allows the NSA and the FBI to obtain online data including e-mails, photographs, documents and connection logs. The information that can be assembledabout any one person — much less organizations, social networks and entire communities — is staggering: What we do, think and believe.

To the extent that the FISC sanctioned PRISM, it may be consistent with the law. But it is disingenuous to suggest that millions of Americans’ e-mails, photographs and documents are “incidental” to an investigation targeting foreigners overseas.
 

Under section 215 of the Patriot Act, the government no longer has to prove that the target is a foreign power. It need only state that the records are sought as part of an investigation to protect against terrorism or clandestine intelligence.

 

How can every call that every American makes or receives be relevant to a specific investigation?”

As a constitutional matter, the Supreme Court has long held that, where an individual has a reasonable expectation of privacy, search and seizure may occur only once the government has obtained a warrant, supported by probable cause and issued by a judge. The warrant must specify the places to be searched and items to be seized.

[T]he Supreme Court has held that the Fourth Amendment does not protect foreigners from searches conducted abroad. But it has never recognized a foreign intelligence exception to the warrant requirement when foreign-targeted searches result in the collection of vast stores of citizens’ communications.  Americans reasonably expect that their movements, communications and decisions will not be recorded and analyzed by the government.

The FISC is supposed to operate as a check. But it is a secret court, notorious for its low rate of denial. From 1979 to 2002, it did not reject a single application. Over the past five years, out of nearly 8,600 applications, only two have been denied.

Liberal or conservative, Americans who value freedom ought to be very concerned about what is happening in the name of national security.  I suspect these concerns are what motivate Edward Snowden to release the information that he did. 
 

 

NSA Leaker - Hero Or Traitor?

The rage in some quarters over the revelation that the National Security Agency, CIA and other U.S. government organizations have been spying on American citizens continues unabated.  What's interesting is that some both on the far right and far left are in an uproar.  Meanwhile, the "America, love it or leave it" crowd is accusing NSA leaker, Edward Snowden, is a traitor.  It's the same mindset that kept America in the disaster in Vietnam for far too long and the one that has kept the fool's errand in Afghanistan going for over a decade.  The New York Times takes the position in a main page editorial that Snowden is not a traitor.  Here are some column highlights:

For several top lawmakers in Washington, Edward Snowden committed the ultimate political crime when he revealed to the world just how broadly and easily the government is collecting phone and Internet records. “He’s a traitor,” said John Boehner, the House speaker. “It’s an act of treason,” said Senator Dianne Feinstein, the chairwoman of the Intelligence Committee.

Among prosecutors and defense lawyers, there’s a name for that kind of hyperbole: overcharging. Whatever his crimes — and he clearly committed some — Mr. Snowden did not commit treason, though the people who have long kept the secrets he revealed are now fulminating with rage. 

If Mr. Snowden had really wanted to harm his country, he could have sold the classified documents he stole to a foreign power, say Russia or China or Iran or North Korea. But even that would not constitute treason, which only applies in cases of aiding an enemy with whom the United States is at war.

In the landmark 1945 case Cramer v. United States, the Supreme Court ruled that one had to provide aid and comfort and also “adhere” to an enemy to be guilty of treason. 

“A citizen may take actions which do aid and comfort the enemy,” the court said, “making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength — but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.” 

Clearly, Mr. Snowden did not join a terror cell, or express any hostility toward the United States, when he turned over documents to The Guardian and The Washington Post. (He was also not nearly as reckless as Bradley Manning, . . . .

Mr. Snowden’s goal was to expose and thus stop the intelligence community from what he considered unwarranted intrusions into the lives of ordinary Americans. “My sole motive,” he told The Guardian, “is to inform the public as to that which is done in their name and that which is done against them.” While that principle is the right one, he should brace himself for the charges and possible punishment that may come in its wake. Most likely, he will be charged with disclosure of classified information under the Espionage Act, which carries a possible 10-year jail term for each count. 

Of course, prosecuting Snowden requires that he be taken into custody and may also involve some challenges as noted in The American Conservative under a headline of "Obama Shouldn’t Prosecute Snowden, He Should Hire Him":

I think the Obama administration will have a very difficult time prosecuting Edward Snowden. They can go after Bradley Manning because they have him, in uniform and in prison, and thus shut off from normal communication. Americans are unable to perceive how normal, probably likeable, and how similar to most of us he probably is. But Snowden comes across like everyone’s ideal of a really smart, techie, individualist kid. No high school degree, yet speaks as eloquently as an assistant Harvard professor. Smart enough to rise rapidly in the world without credentials, reminding us vividly computers really are a new frontier, the one field outside of sports and music where classic American Horatio Alger tropes have any continued relevance. If Obama wanted to do something smart, he should thank Snowden and offer him a job as a White House technology advisor.

The situation has indeed made some strange bedfellows when both Boehner and Feinstein are condemning him  and the ACLU and others on the far right are praising him.  It will be an interesting spectacle to watch play out.

The Backlash Against the NSA's Spying on Americans

Reactions to the news that the National Security Agency ("NSA") has been spying on millions of Americans are all across the board.  Some are cheering the agency's aggressiveness in "weeding out terrorists" and "stopping terrorist attacks."  Others in contrast are highly upset now that they know that literally nothing may be private in their lives.  The defense for the spying is that it uses "meta analysis" and that our personal e-mails are not being read and our phone calls are not being monitored.  But is this actually true?  Less than three months ago, government officials denied that they were doing what we now in fact know they were doing.  The questions thus become (i) who do we trust and (ii) what could happen if the wrong individuals misuse information.  I for one, do not have a high level of trust of government when it comes to this type of information.  Perhaps I's a product of my youth in the 1960's and early 1070's when the U.S. government routinely lied about Vietnam.  Here are highlights from a column in the Washington Post that looks at the issue:

Keep your distance: The director of national intelligence is having intestinal distress.
“For me, it is literally — not figuratively, literally — gut-wrenching to see this happen,” James Clapper told Andrea Mitchell over the weekend, referring to leaks about the government’s secret program to collect vast troves of phone and Internet data.

There might be a bit more sympathy for Clapper’s digestive difficulty if he hadn’t delivered a kick in the gut to the American public just three months ago.  Sen. Ron Wyden (D-Ore.) asked Clapper at a Senate hearing in March, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”  “No, sir,” Clapper testified.

“It does not?” Wyden pressed. “Not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly.”

We now know that Clapper was not telling the truth. The National Security Agency is quite wittingly collecting phone records of millions of Americans, and much more.

[Government] officials have only themselves to blame. It is precisely their effort to hide such a vast and consequential program from the American public that caused this pressure valve to burst. Instead of allowing a democratic debate about the programs in broad terms that would not have compromised national security, their attempts to keep the public in the dark have created a backlash in which the risks to national security can’t be controlled.

Edward Snowden, the leaker, did the honorable thing in revealing his identity; it would be more honorable if he would turn himself in and face the consequences for his law-breaking. But there is little honor in the way administration officials and lawmakers have avoided responsibility. Obama administration officials are blaming Snowden, while some lawmakers complain disingenuously that the administration kept them out of the loop.

All 535 members of Congress had authorization to learn all about the programs. Senators even received a written invitation in 2011 to view a classified report. Likewise, Rep. Peter King (R-N.Y.), a former chairman of the Homeland Security Committee, said Monday that members “could have gotten a briefing whenever they wanted to.” But apparently few bothered. Worse, lawmakers quashed efforts to allow even modest public disclosure of the broad contours of the program.  

“The pervasive secrecy on this topic created an information vacuum. If congressional oversight was not going to fill it in, it turned out leaks would. That’s not the optimal solution.”

Not optimal, but probably inevitable. Officials who denied the public a responsible debate on surveillance will now have a debate on Snowden’s terms — and there’s no use in bellyaching about it.

The NSA, Data Privacy, and Gay Rights

NSA Headquarters

Living in a state like Virginia where the Republican Party has nominated a slate of virulent homophobes for state wide office makes one perhaps more nervous bout government spying on private American citizens.  Ken Cuccinelli is on record for wanting to recriminalize homosexuality and recently tried to argue that Lawrence v. Texas had not struck down Virginia's sodomy statutes.  The rest of the GOP ticket is equally scary both for gays and also for women and minorities.  How much do we want people like these lunatics to know about us and be able to access without out knowledge.  A piece in Towleroad looks at this question.  Here are some excerpts:

You don't have to be a libertarian to get angry at the jaw-dropping revelations that the American intelligence apparatus has been mining data from various U.S. Internet companies. Many of us are aware that private and public entities know quite a bit about us; data mining, after all, is how the Google banner, Amazon book recommendations, and Facebook sidebar ads work. But few -- outside those of us who study digital privacy -- realized the scope of the NSA's reach. 

The government's intelligence gathering program -- called PRISM -- is ostensibly trying to achieve the worthy goal of preventing terror attacks. But the Kafka-esque bureaucracy it's creating could turn dangerous in the wrong hands. We've seen it before, during red scares that targeted Jews, blacks, gays, intellectuals, and other liberals; so let's not fall into the abyss of complacency by passing off the NSA's behavior as just something that makes us feel safer.

These kinds of privacy invasions have a less direct relationship to the gay community than raids of gay bars or anti-gay employment discrimination or bans on the freedom to marry. But even if it is true that the government only targeted foreigners abroad and did not discriminate on whose data it was gathering, the sweeping nature of NSA data gathering and this troubling example of the lag between our technology and our privacy protections should especially worry traditionally victimized groups.

Privacy law and the gay community have a long history. The explicit elucidation of a constitutional right to sexual privacy in the 1960s helped give us important precedents like the right to access contraception, the right to choose to terminate a pregnancy, and the right to engage in private, consensual sex with someone of the same sex without being thrown in jail. Yet, over the years, our privacy has been invaded to stop the dissemination of gay-related political or cultural speech through the mail, to force us to disclose our memberships in community organizations that advanced gay rights, and to fire us from our jobs when our personal sexual orientation becomes known. 

Privacy is essential for the full realization of gay rights. Why? It's not because we need to hide who we are or hide our sexual conduct.

It would also be an oversimplification to argue that privacy matters to traditionally disadvantaged minorities, in general, and the gay community, in particular, because of the need to hide. Privacy is only partly about the right to keep secrets, from our sexual behavior to our half-naked photos to our community affiliations. Justice Brandeis said it was about the "right to be let alone." Justice Brennan called it "the most central of human needs." One the most well-known privacy scholars said privacy "ensures personal autonomy even when you have nothing to hide."

It should be a matter of bipartisan outrage because of its near limitless, unregulated reach for an undefined purpose. Government power is not in itself a bad thing; limitless power, however, is always a bad thing.  .  .  .  The goals are not always evil, just the cavalier way in which we let government reach those goals.

 Then again, sometimes the goals are laden with personal prejudice. Congress once authorized the Post Office to search through the mail to prevent the spread of "homosexual literature." Joseph McCarthy and the closeted Roy Cohn used Gestapo tactics to force confessions and sent teams of spies to follow alleged gays in the State Department. At one point, 38 states permitted police to search private homes for evidence of "sexual perversion." So, when a conception of privacy does not exist, our rights are at risk.

The erosion of a concept of individual privacy in favor of limitless governmental authority to snoop does violence to those principles of freedom because it challenges the very notion that power has limits. That is not to say that privacy should always win out; privacy, like others rights, has to be balanced against other rights and obligations. But we should not be lulled asleep and shirk our responsibilities as citizens in a republic simply because we don't have anything to hide. We don't, but we have a democracy to maintain.