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A Better Ruling on NSA Surveillance
The decision today by Judge William H. Pauley III of the U.S. District Court for the Southern District of New York — which upheld the NSA’s metadata program — is far better than the recent ruling by Judge Richard Leon of the D.C. Federal District Court holding the program unconstitutional(which I addressed here).
Unlike Judge Leon’s decision, the New York decision does not attempt to overrule the Supreme Court’s previous cases on search and seizure. As I’ve noted before, the Court held In Smith vs. Maryland that phone calling records were not protected by the Fourth Amendment because the individual had handed over the data to a third party (the phone company). If they are unprotected by the Fourth Amendment, law enforcement and national security agencies do not need a warrant to collect and search the data.
Judge Pauley did his duty and obeyed Smith, while Judge Leon tried to escape it. It is up to the Supreme Court, not a trial judge, to decide whether to overrule Smith. But the conflicting decisions (unless the D.C. Circuit overrules Judge Leon) seems guaranteed to send the issue to the Supreme Court for the last word.
Published in General
It is not your information. It is information a company you do business with compiles in the course of doing business.
The government has explained why they need the information to the court specifically empaneled to hear such matters and that court authorized the collection. ·48 minutes ago
A kangaroo court, created for the specific purpose of secretly rubber-stamping warrants that may or may not bear any resemblance to to the truth. There’s no way to check, because their proceedings are seeeeeecret. ·11 minutes ago
All courts issue warrants in secret. A publicly issued warrant authorizing surveillance is rarely of much use.
Grand jury proceedings are conducted in secret, are they ‘kangaroo’ proceedings as well?
A kangaroo court, created for the specific purpose of secretly rubber-stamping warrants that may or may not bear any resemblance to to the truth. There’s no way to check, because their proceedings are seeeeeecret. ·11 minutes ago
All courts issue warrants in secret. A publicly issued warrant authorizing surveillance is rarely of much use.
Grand jury proceedings are conducted in secret, are they ‘kangaroo’ proceedings as well? ·1 hour ago
Actually, yes. A prosecutor can get a grand jury to indict a ham sandwich. ·11 hours ago
And secrecy is the reason for that rather than the burden that must be met for an indictment? Petit jury deliberations are also conducted in secret but a prosecutor is not said to be able to convict a ham sandwich.
Do you believe the government should publicly announce the means and methods used to surveil and track those suspected of terrorism? Of involvement with foreign intelligence services? Should the government conduct any business in “seeeeeecret”?
It is not your information. It is information a company you do business with compiles in the course of doing business.
The government has explained why they need the information to the court specifically empaneled to hear such matters and that court authorized the collection. ·48 minutes ago
A kangaroo court, created for the specific purpose of secretly rubber-stamping warrants that may or may not bear any resemblance to to the truth. There’s no way to check, because their proceedings are seeeeeecret. ·11 minutes ago
All courts issue warrants in secret. A publicly issued warrant authorizing surveillance is rarely of much use.
Grand jury proceedings are conducted in secret, are they ‘kangaroo’ proceedings as well? ·1 hour ago
Actually, yes. A prosecutor can get a grand jury to indict a ham sandwich.
All courts issue warrants in secret. A publicly issued warrant authorizing surveillance is rarely of much use.
Grand jury proceedings are conducted in secret, are they ‘kangaroo’ proceedings as well? ·1 hour ago
Actually, yes. A prosecutor can get a grand jury to indict a ham sandwich. ·11 hours ago
And secrecy is the reason for that rather than the burden that must be met for an indictment? Petit jury deliberations are also conducted in secret but a prosecutor is not said to be able to convict a ham sandwich.
Do you believe the government should publicly announce the means and methods used to surveil and track those suspected of terrorism? Of involvement with foreign intelligence services? Should the government conduct any business in “seeeeeecret”? ·0 minutes ago
There is a difference in collecting information on foreign terrorists and Americans who have contact with them. I don’t have a problem with that. If that sort of information had been collected and used against Major Hassan, the Fort Hood attack would never have happened. We didn’t use the information we had. Explain to me what invading the privacy of millions of innocent people will accomplish.
Do you believe the government should publicly announce the means and methods used to surveil and track those suspected of terrorism? Of involvement with foreign intelligence services? Should the government conduct any business in “seeeeeecret”?
I think that’s a very good question. Perhaps it’s even the key question, in regards the health and viability of a free society.
Organized terrorism is a threat to a free society, obviously. Even an organization as small as Timothy McVeigh and Terry Nichols. Even an organization composed of only Hassan Nidal.
One of the main threats posed by terrorism is not the actual and direct harm it causes, rather it’s the predictable reaction by the public; the general desire to embrace what Katrina vanden Heuvel calls “The National Security State.”
If America can publicly build up a case for war for a year, broadcasting its intentions and all but announcing the launch date of an invasion months ahead of time, then maybe it can openly and publicly discuss these methods of gathering intelligence on its own citizens as well.
Government projects don’t ever get smaller and narrower in scope as time progresses.
Not ever.
There is a difference in collecting information on foreign terrorists and Americans who have contact with them. I don’t have a problem with that. If that sort of information had been collected and usedagainst Major Hassan, the Fort Hood attack would never have happened. We didn’t use the information we had. Explain to me what invading the privacy of millions of innocent people will accomplish. ·1 hour ago
The information we are discussing is collected so that when a foreign terrorist or intelligence agent is identified, we can determine whom that person has been in contact with.
You are objecting to the collection of the very information that you are objecting was not used to prevent MAJ Hassan from committing his attack. You cannot have it both ways.
I do not believe the mere collection of this information invades the privacy of anyone.
Government projects don’teverget smaller and narrower in scope as time progresses.
Not ever. ·1 hour ago
That is simply not true. Just look at the size and scope of the “National Security State” during WWI and post WWI, during WWII and after, during the Cold War and after, before and after 9/11. The “National Security State” has increased and decreased in size as the geo-political situation required.
That is simply not true. Just look at the size and scope of the “National Security State” during WWI and post WWI, during WWII and after, during the Cold War and after, before and after 9/11. The “National Security State” has increased and decreased in size as the geo-political situation required.
Five years after WWII we had effectively demobilized the military, and then our fathers had to scramble to remobilize in 1950 as Truman committed the US to saving South Korea.
We’ve never demobilized since.
This was a great concern to Eisenhower in 1961, and a major theme of his farewell address.
To compare the level of mobilization during WWII with anytime afterward is apples and oranges. Over 8 million Americans were in uniform in the Army and Air Corps alone at the end of WWII. We have never seen half that many on active duty since.
Our defense spending, as a percentage of both GDP and overall federal spending has gone down dramatically after WWI, WWII, Korea, Vietnam, and the Cold War. The idea that it has consistently grown is simply wrong.
There is a difference in collecting information on foreign terrorists and Americans who have contact with them. I don’t have a problem with that. If that sort of information had been collected and usedagainst Major Hassan, the Fort Hood attack would never have happened. We didn’t use the information we had. Explain to me what invading the privacy of millions of innocent people will accomplish. ·1 hour ago
The information we are discussing is collected so that when a foreign terrorist or intelligence agent is identified, we can determine whom that person has been in contact with.
You are objecting to the collection of the very information that you are objecting was not used to prevent MAJ Hassan from committing his attack. You cannot have it both ways.
I do not believe the mere collection of this information invades the privacy of anyone. ·2 hours ago
We HAD the information on Hassan because he was personally in contact with foreign jihadists. We didn’t have to play six degrees of separation to make the link. We had it and we did nothing. If we won’t act on direct connections, why worry about indirect ones?
We HAD the information on Hassan because hewas personally in contact with foreign jihadists. We didn’t have to play six degrees of separation to make the link. We had it and we did nothing. If we won’t act on directconnections, why worry about indirect ones? ·2 hours ago
The NSA program is designed to find direct and second level contacts specifically like you are upset we failed to follow up on regarding Hassan. I do not know where you get the idea it concerns 6 degrees of separation.
The idea behind the program is to have information immediately available when a terror suspect is identified rather than waiting to perform the time consuming process of building a relationship matrix afterwards.
We HAD the information on Hassan because hewas personally in contact with foreign jihadists. We didn’t have to play six degrees of separation to make the link. We had it and we did nothing. If we won’t act on directconnections, why worry about indirect ones? ·2 hours ago
The NSA program is designed to find direct and second level contacts specifically like you are upset we failed to follow up on regarding Hassan. I do not know where you get the idea it concerns 6 degrees of separation.
The idea behind the program is to have information immediately available when a terror suspect is identified rather than waiting to perform the time consuming process of building a relationship matrix afterwards. ·0 minutes ago
We had the emails from Hassan to the foreign jihadist. It was a direct connection, not a secondary connection. Nothing was done because of political correctness. We had warnings from Russia about the older Tsarnaev brother. We blew them off. You can’t point to a single case where this program has foiled a terrorist operation. This isn’t about terrorism, it’s about spying on the political opposition.
We hadthe emails from Hassan to the foreign jihadist. It was a directconnection, not a secondary connection. Nothing was done because of political correctness. We had warnings from Russia about the older Tsarnaev brother. We blew them off. You can’t point to a single case where this program has foiled a terrorist operation. This isn’t about terrorism, it’s about spying on the political opposition. ·0 minutes ago
Again… you complain when we collect the information and then you complain when we do not use use it. You cannot have it both ways. Should we collect the information regardless of political correctness concerns? Yes, we should.
Should we use the information we collect to stop terrorist attacks regardless of political correctness concerns? Yes, we should.
I know enough about signals intelligence analysis to appreciate the value of this program and my understanding is the intelligence community has affirmed its value.
You cannot point to a single instance of this program being used to spy on political opposition.
Hassan was in direct contact with a foreign jihadist. Spying on foreign enemies of America is the NSA’s job, and I have no objection to them doing it. They didn’t use the information they were supposed to be collecting. Reading Hassan’s foreign contact’s emails (both inbound and outbound) is perfectly reasonable, and was done. But if the government’s not willing to act on direct contacts with foreign terrorists, why should we give them the means to play six degrees of Osama bin Laden? Or six degrees of Ron Paul? Or six degrees of Ted Cruz? Or six degrees of whoever’s at the top of the administration’s shit list?
If an American is consorting with foreign terrorists, get a warrant and get his communications data. And if that leads to other possible terrorists, get a warrant and get their data. Repeat as necessary.
With the information the NSA is collecting, it would be no trouble to write an application which would, for a specified “enemy of the state”, generate a list of all his associates, and insert the names and addresses in arrest warrants. Or just send the goons out to disappear them.
…
This isn’t about terrorism, it’s about spying on the political opposition. ·0 minutes ago
…
I know enough about signals intelligence analysis to appreciate the value of this program and my understanding is the intelligence community has affirmed its value.
You cannot point to a single instance of this program being used to spy on political opposition. ·33 minutes ago
The nature of blackmail is that both the blackmailer and his victims have an interest in keeping it secret. You only hear about blackmail when the blackmailer pushes too hard and the victim decides to take the blackmailer down with him. Considering that the Certified Pre-owned Moderates™ that run the GOP aren’t too far from Democrats, that’s not likely to happen.
I know enough about software design to know this program is a Frankenstein’s Monster waiting to be let loose. Big Brother is watching you. He knows where you go, how long you stay, what you searched for on the Internet. Who you called and emailed. Who called and emailed you. It’s like “Enemy of the State” meets “Nineteen Eighty-Four“. And Big Brother is not your friend.
You’re entirely correct that our standing military never again matched the levels of personnel nor spending during WWII. Such would have broken America’s back, obviously.
Which means your initial assertion,
is incorrect.
But troop levels have remained very high over the last 60 years, much higher than say, the years leading up to WWII. The bar had been raised and it’s proved nearly impossible to approach true demobilization since.
And just as obvious is the fact that the military’s scope has done nothing but increase over those years.
Yes, troop levels have remained higher than the years immediately prior to WWII but they have hardly been static. They properly responded to the world situation. They spiked during Korea and Vietnam and were reduced dramatically after the fall of the Soviet Union.
We have deployed combat troops involving the US in the Korean civil war, the Vietnamese civil war, the Cuban counterrevolution, the Cuban led coup in Grenada…
Have we gotten to the point where the international communist fight against the west is ignored in a conservative forum?
If you had actuallyreadmy reply, you’d understand that there’s no way to know whether anyone has been blackmailed – yet. Unless Snowden has some more of NSA’s domestic intelligence files, someone else blows the whistle, or someone being blackmailed grows a pair, we’re not likely toeverfind out if they have been.
We do know that one provider of secure email service shut down rather than be complicit in the NSA’s activities. I call that a loss when a businessman has to give up his business to keep from betraying his clients. We treat lawyers better than that.
The unauthorized use of nuclear launch codes is pretty hard to keep secret. People notice that sort of thing.
The government belongs to the people, not the other way around. They need to start acting like it. ·9 hours ago
I did read your reply and it consisted of that mainstay of conspiracy theories from time immemorial… the lack of evidence is the evidence.
The program in question has nothing to do with email.
One of the primary functions the people charge the government with is protecting them.
And do they have to get a single use password from the judge to do each query? I rather doubt it. With this kind of data I could write a six degrees of _____ application that would take a person’s id number (and if the database doesn’t assign one, it’s useless for any purpose) and automatically generate a hit list complete with home address, work address, and last known GPS coordinates. Might have to work at filtering spammers from the list, but disappearing spammers could be construed as a public service. ·8 hours ago
From my (admittedly very limited and dated) experience with the good folks at NSA, I would guess access to the database is tightly controlled. No one person would be able to have access and each request would have to be signed off and approved by two levels of command and each query would likewise be monitored.
Unless things have changed a lot since I played in the SIGINT sandbox, nothing concerned commanders as much as the potential for domestic collection and all that entailed.
I believe you simply do not understand the nature and purpose of this program.
When a foreign terrorist is identified, the NSA or other agency goes to a court to obtain a warrant to access a database which contains the information the NSA has previously collected (as part of this mass collection effort) related to that person’s contacts. With this previously collected information, the analysts are able to instantly develop a relationship matrix which used to take weeks or months to develop.
The unwillingness of the political leadership to use the information developed is a different issue.
The nature of blackmail is that both the blackmailer and his victims have an interest in keeping it secret. You only hear about blackmail when the blackmailer pushes too hard and the victim decides to take the blackmailer down with him. Considering that the Certified Pre-owned Moderates™ that run the GOP aren’t too far from Democrats, that’s not likely to happen.
I know enough about software design to know this program is a Frankenstein’s Monster waiting to be let loose. Big Brother is watching you. He knows where you go, how long you stay, what you searched for on the Internet. Who you called and emailed. Who called and emailed you. It’s like “Enemy of the State” meets “Nineteen Eighty-Four“. And Big Brother is not your friend. ·20 minutes ago
Edited 19 minutes ago
So your evidence of the program being abused is that there is no evidence of abuse?
We entrust members of our military with nuclear launch codes, the idea that cell phone records are somehow the camels nose under the tent strikes me as bizarre.
From my (admittedly very limited and dated) experience with the good folks at NSA, I would guess access to the database is tightly controlled. No one person would be able to have access and each request would have to be signed off and approved by two levels of command and each query would likewise be monitored.
Unless things have changed a lot since I played in the SIGINT sandbox, nothing concerned commanders as much as the potential for domestic collection and all that entailed. ·8 minutes ago
And the IRS didn’t do political thuggery back then, either. Or at least, not much. When Obama said he would “transform” America, you didn’t think he was just talking about what government does openly, did you? How did a loose cannon like Snowden get hold of what he took? And we don’t know that what we’ve seen is all he took.
Wake up and smell the coffee. Agencies dedicated to protecting America are working for a President dedicated to undermining America. And when he went looking for urbane thugs to run those agencies, he found them, because there are always urbane thugs for hire.
To compare the level of mobilization during WWII with anytime afterward is applesand oranges. Over 8 million Americans were in uniform in theArmyandAirCorps alone at the end of WWII. We have never seen half that many on active duty since.
16 million during WWII, yes.
Between 1950 and 2000, there were 118 million billets in the US military (a billet being one individual in service for one year). Over those 5 decades that’s over 23 million US military personnel for each decade.
You’re entirely correct that our standing military never again matched the levels of personnel nor spending during WWII. Such would have broken America’s back, obviously.
But troop levels have remained very high over the last 60 years, much higher than say, the years leading up to WWII. The bar had been raised and it’s proved nearly impossible to approach true demobilization since.
And just as obvious is the fact that the military’s scope has done nothing but increase over those years.
Military aside, it’s certain the OSS has greatly expanded since WWII in scope, in mission, in personnel and in spending, none of which is part of the military’s budget.
Far be it for me to find myself on the same side of the argument as a liberal lunatic like Katrina vanden Heuvel, or even Dwight Eisenhower for that matter, but there you are.
I think it beyond doubt that the US has on occasion engaged in military actions primarily because of the availability of its relatively large standing forces. This was Eisenhower’s warning that has variously been ignored for the wrong reasons, or given exaggerated credibility for the wrong reasons, ever since 1961.
We have deployed combat troops involving the US in the Korean civil war, the Vietnamese civil war, the Cuban counterrevolution, the Cuban led coup in Grenada, the Lebanese civil war, the invasion of Kuwait, the Yugoslavian civil war, the Somalian civil war, a retaliatory strike and sponsored coup in Afghanistan, a preemptive strike and sponsored coup in Iraq, the Libyan civil war and lately, we almost committed our military to the Syrian civil war.
I’m sure I’ve missed a few.
Like Katrina and my libertarian cousins, I have plenty of criticism for all those deployments, but unlike Katrina and my brother and sister libertarians, in the end, I very much agree to the necessity of fighting most of them.
But I stand by my characterization of the curve. The scope and mission is far broader today than 70 years ago.
Since we’ve had a standing army since 1950, I’d think the Constitutional limit on 2 year funding is long overdue to be amended out of existence. There won’t be any such amendment forthcoming because politicians would have to argue the facts of life with their constituents, which they’re loathe to do.
They’d rather we just accept the fait accompli, and let them wink when it comes to funding the peacetime standing military.
It’s the same for the NSA program in question. They are already arguing for it as a fait accompli. It’s a program they can’t even publicly demonstrate to us whatever successes it may have achieved.
That’s a silly and awkward place for a free society to find itself.
Or am I just kidding myself about this “free society” nonsense?
Abuse at the IRS does not prove or even suggest abuse anywhere else. Snowden is a criminal. That he was able to access and steal the information he did was criminal. He and all those who aided him should be prosecuted. His actions however do not reflect on the efficacy of the program in question.
So your evidence of the program being abused is that there is no evidence of abuse?
We entrust members of our military with nuclear launch codes, the idea that cell phone records are somehow the camels nose under the tent strikes me as bizarre. ·34 minutes ago
If you had actually read my reply, you’d understand that there’s no way to know whether anyone has been blackmailed – yet. Unless Snowden has some more of NSA’s domestic intelligence files, someone else blows the whistle, or someone being blackmailed grows a pair, we’re not likely to ever find out if they have been.
We do know that one provider of secure email service shut down rather than be complicit in the NSA’s activities. I call that a loss when a businessman has to give up his business to keep from betraying his clients. We treat lawyers better than that.
The unauthorized use of nuclear launch codes is pretty hard to keep secret. People notice that sort of thing.
The government belongs to the people, not the other way around. They need to start acting like it.
I believe you simply do not understand the nature and purpose of this program.
When a foreign terrorist is identified, the NSA or other agency goes to a court to obtain a warrant to access a database which contains the information the NSA has previously collected (as part of this mass collection effort) related to that person’s contacts. With this previously collected information, the analysts are able to instantly develop a relationship matrix which used to take weeks or months to develop.
The unwillingness of the political leadership to use the information developed is a different issue. ·2 hours ago
And do they have to get a single use password from the judge to do each query? I rather doubt it. With this kind of data I could write a six degrees of _____ application that would take a person’s id number (and if the database doesn’t assign one, it’s useless for any purpose) and automatically generate a hit list complete with home address, work address, and last known GPS coordinates. Might have to work at filtering spammers from the list, but disappearing spammers could be construed as a public service.
Government projects don’teverget smaller and narrower in scope as time progresses.
Not ever.
That is simply not true. Just look at the size and scope of the “National Security State” during WWI and post WWI, during WWII and after, during the Cold War and after, before and after 9/11. The “National Security State” has increased and decreased in size as the geo-political situation required.
Five years after WWII we had effectively demobilized the military, and then our fathers had to scramble to remobilize in 1950 as Truman committed the US to saving South Korea.
We’ve never demobilized since.
This was a great concern to Eisenhower in 1961, and a major theme of his farewell address.
Now I’ve often stated that Eisenhower’s address was a confession to the American people of his failures. He’d let his Vice President, his Director of Central Intelligence, his Secretary of State, and many others in his administration run roughshod over him, much as he’d let Monty run roughshod over him during the war. If he’d failed to keep the “military-industrial complex” in check…well, that seems more his fault than anyone else’s.
Kennedy would embrace the M-IC in a large peacetime military build up, just days after Eisenhower’s warning.
But the point is, if you look at the pattern that you yourself point to–the theme over time becomes even clearer:
A necessary emergency seizure of power (beginning in WWI), a brief period of relinquishing that power, but only for a few years, at which point those powers are readily re-acquired in a new emergency, and acquired in a more permanent way.
It’s NOT a static sine wave at all.
And now no one even pretends that there are limits, or definitions of victory; No future point that we could agree to demobilize the NSA data sweep, for instance.
History is filled with crucial crossroads. Points at which as a reader you find yourself screaming through time at them:
You idiots! Why did you give them so much power? Couldn’t you see where that would lead? Why did you just hand it over to them like that?