timschochet
Footballguy
You wrote: "In other words, no constraints at all." The NSA claims that there are constraints. If they're telling the truth, I'm OK with it. If they're not telling the truth, I'm not OK with it.
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Verizon required to give ALL call data to NSA (1 Viewer)
- Thread starter PlasmaDogPlasma
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The Commish
Footballguy
You've come to your conclusion...what's to debate? What's scary to me is that somehow if the SC comes in and says that it is indeed unconstitutional, you'll change your mind. The events are the same, the circumstances are the same, all that's new is the opinions of some more people. This is a complete lack of critical thinking IMO.I don't believe the lower court ruling is correct, because I think a mass warrant is acceptable under the 4th Amendment. It's an issue I'm perfectly willing to discuss and debate- I have done so at length. I have posted opinions by constitutional experts which agreed with my POV on this. If you want to discuss it I'm eager to do so (though I have to run at the moment, will be back in a few hours.)Why? What's wrong with the lower court ruling? The only reason I can come up with is because you don't like what the lower courts have to say. If that's the case, then that belief alone tells me there is no "debate" to be discussed with you.I want it to go to the Supreme Court.It's not going well thenIt's completely lost in the aforementioned backpedal I mentioned. There's been many links posted where courts have ruled the collection of this data as unconstitutional, yet you keep saying "I'll wait for the courts to rule" stuff....well, they have ruled and it's not going well.
Psychopav
Help us, Joebi-Wan Brynobi, you're our only ho
Not sure I agree with this. If the policy was publicly known that the data would reside with the indivdiual companies and accessed only with a warrant, then there would be substantial support for any companies that complied with the requirements but came forth claiming government pressure to provide private information without a court order.
The NSA admits they shared raw data, without first filtering it in any way. That's the equivalent of no constraints.
And, if you read the quote closely, the NSA spokesman didn't claim there were constraints. He claimed they didn't break any constraints. If there are no constraints, his statement is truthful.
timschochet
Footballguy
It's not just the opinions of "some people". They know a lot more about the Constitution than I do. I've disagreed with some SC decisions, and if this decision goes down the way you predict I might disagree with it too, depending on how strong the arguments are. But whether I disagree with it or not, I'll accept whatever they decide.You've come to your conclusion...what's to debate? What's scary to me is that somehow if the SC comes in and says that it is indeed unconstitutional, you'll change your mind. The events are the same, the circumstances are the same, all that's new is the opinions of some more people. This is a complete lack of critical thinking IMO.I don't believe the lower court ruling is correct, because I think a mass warrant is acceptable under the 4th Amendment. It's an issue I'm perfectly willing to discuss and debate- I have done so at length. I have posted opinions by constitutional experts which agreed with my POV on this. If you want to discuss it I'm eager to do so (though I have to run at the moment, will be back in a few hours.)Why? What's wrong with the lower court ruling? The only reason I can come up with is because you don't like what the lower courts have to say. If that's the case, then that belief alone tells me there is no "debate" to be discussed with you.I want it to go to the Supreme Court.It's not going well then
He's suggesting that the NSA will simply steal and store the data without the permission of the companies, and he's right. They already did the equivalent by poking back-door holes in the SSL algorithms.
timschochet
Footballguy
He said there are procedures in place designed to protect privacy.
I get your point though, that raw data implies no constraints. There is definitely a contradiction here. If it turns out you're correct, I would have a problem with it.
You could parse this quote too, "Any US person information that is acquired as a result of NSA's surveillance activities is handled under procedures that are designed to protect privacy rights".
If there are no privacy rights, then all procedures would protect those non-existent right. You'll notice he also doesn't specify that the data is handled under those procedures before or after it is shared. This could be a true statement even if the process was 1) collect data, 2) share data, 3) blatantly misuse data, 4) run data through a procedure designed to protect privacy. Of course, given the NSA's track record, I'm inclined to believe it's simply a bald-faced lie.
timschochet
Footballguy
Doug B
Footballguy
All I'm saying is that, in a nutshell, the NSA and any similar agencies can do what they want with impunity. Even if the NSA were provably and publicly scuttled, some other unnamed agency would step into the breech. The agencies that collect this data can't be shamed or "outed" into truly changing their behavior. False fronts can be put up, compelling narratives can be fabricated, heads can be made to roll for public consumption.
But the engine behind the curtain never stops.
Psychopav
Help us, Joebi-Wan Brynobi, you're our only ho
I know there have been clandestine controls put in place in the infrastructure to allow the NSA to access some of the information it wouldn't have otherwise been able to, and I agree that it's very likely that this access would continue no matter what laws are passed. I'm really talking about the other sets of data, which have to come from the companies like Verizon who are compelled to provide them under the current programs. It is certainly feasible that the level of access to that information could change under the right statutory circumstances.
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The Commish
Footballguy
timschochet
Footballguy
SacramentoBob
Footballguy
10 Argue with tim
20 Say that you aren't going to waste your time with tim anymore
30 goto 10
20 Say that you aren't going to waste your time with tim anymore
30 goto 10
The Commish
Footballguy
So you'll disagree with the SC if they follow suit? That'd be fair, but that's not what you've said as of yet.
timschochet
Footballguy
I said I might. It depends on the strength of the argument. I have no idea right now- I haven't read the argument.
timschochet
Footballguy
To be fair, none of the people who converse with me on a regular basis have said that they wouldn't do so anymore. The people who have refused to converse with me didn't do so even before this thread.
The Commish
Footballguy
So what's the point of bringing up the fact that they know more about the Constitution than you do? Doesn't seem to matter (as I said earlier). You've made up your mind despite the mountains of evidence in front of you. Not sure what else you could possibly get out of a thread like this.timschochet said:
timschochet
Footballguy
Commish, when it comes to the issue of whether or not the government can obtain mass collection of data with a mass, collective warrant, there isn't "mountains of evidence", as you put it. There is argument on one side that such a collection is unconstitutional, and there is argument on the other side that such a collection is constitutional. I hold that it's constitutional, and I've explained the reasons for my position. We'll see what happens.
The mountains of evidence refers to more and more reports from The Guardian and other sources that the NSA is collecting this information, and perhaps misusing it. That is a separate issue, and very serious.
The mountains of evidence refers to more and more reports from The Guardian and other sources that the NSA is collecting this information, and perhaps misusing it. That is a separate issue, and very serious.
The Commish
Footballguy
Perhaps I hold our legal minds in higher regard than you do. When I see actual rulings saying it's unconstitutional and not a single ruling saying it's constitutional, I consider that a good amount of evidence. Whether I disagree with the ruling or not doesn't matter. It's indeed evidence. It doesn't have to be the SC saying so.
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tom22406
Footballguy
This blog is by Matthew Green who is a professor at Johns Hopkins who had his blog about the NSA taken down by the school to only then be put back up again.
Click on the link for his 2nd post about the NSA as well.Very detailed and a good read.
http://blog.cryptographyengineering.com/A note on the NSA, the future, and fixing mistakes
Readers of this blog will know this has been an interesting couple of days for me. I have very mixed feelings about all this. On the one hand, it's brought this blog a handful of new readers who might not have discovered it otherwise. On the other hand, it's made me a part of the story in a way I don't deserve to be.
After speaking with my colleagues and (most importantly) with my wife, I thought I might use the last few seconds of my inadvertent notoriety to make some of highly non-technical points about the recent NSA revelations and my decision to blog about them.
I believe my first point should be self-evident: the NSA has made a number of terrible mistakes. These range from policy decisions to technical direction, to matters of their own internal security. There may have been a time when these mistakes could have been mitigated or avoided, but that time has passed. Personally I believe it passed even before Edward Snowden made his first contact with the press. But the disclosures of classified documents have set those decisions in stone.
Given these mistakes, we're now faced with the job of cleaning up the mess. To that end there are two sets of questions: public policy questions -- who should the NSA be spying on and how far should they be allowed to go in pursuit of that goal? And a second set of more technical questions: how do we repair the technological blowback from these decisions?
There are many bright people -- quite a few in Congress -- who are tending to the first debate. While I have my opinions about this, they're (mostly) not the subject of this blog. Even if they were, I would probably be the wrong person to discuss them.
So my concern is the technical question. And I stress that while I label this 'technical', it isn't a question of equations and logic gates. The tech sector is one of the fastest growing and most innovative areas of the US economy. I believe the NSA's actions have caused long-term damage to our credibility, in a manner that threatens our economic viability as well as, ironically, our national security.
The interesting question to me -- as an American and as someone who cares about the integrity of speech -- is how we restore faith in our technology. I don't have the answers to this question right now. Unfortunately this is a long-term problem that will consume the output of researchers and technologists far more talented than I. I only hope to be involved in the process.
So while I know there are people at NSA who must be cursing Edward Snowden's name (and possibly even my own!) I hope that they understand the game we're playing now. Their interests as well as mine now depend on repairing the damage. Downplaying the extent of the damage, or trying to restrict access to (formerly) classified documents does nobody any good.
It's time to start fixing things.
Click on the link for his 2nd post about the NSA as well.Very detailed and a good read.
Politician Spock
Footballguy
Then you should disagree with the SCOTUS if they agree with the lower court that you disagree with. The only way your opinion of whether it is or is not constitutional is if the states modify the constitution.... or your opinion isn't really something you form yourself.
tom22406
Footballguy
Not sure if this has been posted yet but it's the ACLU's blog about NSA concerns done a few days ago.
https://www.aclu.org/blog/national-security/how-nsas-cyber-sabotage-puts-us-all-risk
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Jojo the circus boy
Footballguy
Watching TopGear while working night shift tonight. They had Jay Leno on and they were talking about what it was like having Barack Obama on. Jay says he had him on twice as a candidate and it was Obama and like 2 guys.
Now that he is president it's like an army shows up, they show up a day early and with their clip boards goes up to a handful of staffers and asks their names and then tells them, "You don't show up to work tomorrow." Jay says they never give a reason just, "don't show up." and then speculates that once they had smoked a joint or something (for laughs). Then he says all cell phone calls are monitored within a 60 mile radius where they are looking for keywords. He wasn't doing this for laughs. Any guesses as to what year the show was filmed?
Now that he is president it's like an army shows up, they show up a day early and with their clip boards goes up to a handful of staffers and asks their names and then tells them, "You don't show up to work tomorrow." Jay says they never give a reason just, "don't show up." and then speculates that once they had smoked a joint or something (for laughs). Then he says all cell phone calls are monitored within a 60 mile radius where they are looking for keywords. He wasn't doing this for laughs. Any guesses as to what year the show was filmed?
2009
wazoo11
Footballguy
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tom22406
Footballguy
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She hit out hard at the US during the speech today at the UN for breeching international law. Also called for Brasil to develop their own internet infrastructure as the US gov't and corporations cannot be trusted.
Jojo the circus boy
Footballguy
We Live Under a Total Surveillance State in America -- Can We Prevent It from Evolving into a Full-Blown Police State?
September 25, 2013
“Knowledge (of) the scale of our capability would raise public awareness generating unwelcome publicity for us and our political masters."—Classified UK NSA document
“To approve such a program, the Court must have every confidence that the government is doing its utmost to ensure that those responsible for implementation fully comply with the Court’s orders. The Court no longer has such confidence."—U.S. Foreign Intelligence Surveillance Court Order, p. 12, 3-9-2009
***
For those alarmed by the steady growth of lawless, violent and authoritarian U.S. Executive power for the last 50 years, the events of the past few months have been exciting. The emergence of a de facto coalition of progressives and conservatives opposing the National Defense Authorization Act law giving the Executive the right to unilaterally detain or execute American citizens without a trial, and NSA mass surveillance of phone and Internet data, has been unprecedented, and offers the first hope in 70 years that Executive power can be curbed
The most important development has been the public and congressional reaction to President Obama's proposal to strike Syria. A huge majority of the American people opposed even a limited military action by the Executive Branch. Reading the polls, the President decided to seek congressional authorization for a limited military action. For the first time in living memory, Congress clearly opposed him. It is too soon to say what this will mean for the future, but the implications clearly extend beyond just this particular strike or President.
The main arena besides the Middle East where the issue of the Executive Branch vs. Congress and the American people will play out in coming months will concern attempts to limit not only Executive surveillance of innocent Americans, but its other assaults on the very foundation of democracy itself.
The fundamental issue involved amidst the ongoing cascade of revelations about NSA wrongdoing is this: what must be done to roll back the Executive Branch's creation of a surveillance state, which is just one more major economic crisis or 9/11—as even centrists like Bob Woodward and Tom Friedman warn—from becoming a police-state.
Most of the focus until now has been on trying to absorb the dimensions of the surveillance state we have suddenly learned we are living in since June 6. But it is now time to focus on the actions needed to end its assaults on democracy.
This is not a simple question, either politically or technically. Politically, it is impossible to envision ending the surveillance state without a broad left-right coalition both in Congress and among the public devoted to doing so. But it will be difficult to maintain a coalition of progressives and Tea Partiers, liberals and conservatives, who neither trust nor respect one another—particularly when fought by an Executive that will hit back against attempts to control it with everything it has.
The technical questions are even trickier. How does Congress write and pass laws to prevent Executive Agencies from undertaking surveillance and population control measures when, to paraphrase Congressman Keith Ellison, "Congress doesn't know what it doesn't know"? How can Congress control Executive wrongdoing when Executive officials invoke the mantra of national security to avoid providing it with information?
Had Edward Snowden not risked life imprisonment or worse to reveal that the U.S. Executive Branch has created a surveillance state, we would still know virtually nothing about it. The ranking Senate and House Intelligence committee chairs, Dianne Feinstein and Mike Rogers, would still be covering up Executive wrongdoing, and even those members angered at its criminality would still be muzzled from saying anything. The Judiciary would still not only be rubberstamping Executive actions, but expanding Executive Branch power. The mass media would still be routinely conveying its denials of wrongdoing to the American people whenever the issue arose.
At present, when the heads of the Senate or House Intelligence Committees assure us that they are overseeing the Executive, what they mean is that they are dutifully repeating Executive talking points on documents provided them with the words "top secret" stamped on them, but only consisting of what Executive agencies want them to know. They have no means of independent oversight, which means they have no meaningful oversight. And the judiciary has not only acknowledged this, but said they no longer have “confidence” in the Executive.
If even the secret FISA Court no longer has confidence in the Executive, neither can the rest of us. During the 1960s, the FBI regularly used its secret intelligence to blackmail and threaten not only activists but politicians, presidents and Martin Luther King, Jr. As Internet security expert C.J. Radford has written, “the issue is what happens if this data, and these capabilities, fall into the wrong hands. A malicious government employee, a change in government, court rulings, regulations or leadership could all open this information, and these capabilities, up to cross agency analysis, open use, or criminal activity.”
That is, not only can this information be misused by government employees, but private sector companies, criminals and foreign governments as well. With the NSA spending 70% of its funding on contracts with private sector firms, which are even more corruptible than government agencies, this is a matter of urgent concern.
It is the height of naiveté to have any confidence whatsoever in the current system. It is clear that the heart of any serious attempt to create democracy in this nation must involve not only stopping such obvious assaults on democracy as the mass collection of phone and Internet records of innocent Americans, but a fundamental restructuring of the relationship between our three branches of government.
Since neither the courts nor Congress can any longer have confidence in NSA assertions, they clearly must give themselves the capacity—including experts with full access to raw data, answerable to them and not the Executive—to fulfill their constitutionally required mandate to check and balance Executive power.
This restructuring of relationships between the three branches of government must also profoundly alter the Executive's ability to hide its wrongdoing from the American people by classifying trillions of pages annually on the false grounds of "national security." In an article entitled “Ex-MI6 Deputy Chief Plays Down Damage Caused By Snowden Leaks,” for example, the Guardian reported that Nigel Inkster said that “Al-Qaida leaders in the tribal areas of Pakistan had been ‘in the dark’ for some time… referring to counter measures they had taken to avoid detection by western intelligence agencies. Other ‘serious actors’ were equally aware of the risks to their own security from NSA and GCHQ eavesdroppers, he said.”
The Executive Branch, as does the U.K.’s NSA as quoted above, keeps its secrets from the American people primarily to avoid the "political embarrassment" of having its fraud, waste, abuse and illegality revealed.
As a Brennan Center For Justice study on classification has noted, "Over-classification is rampant, and nearly everyone who works with classified information recognizes the problem. In 1993, Senator John Kerry, who reviewed classified documents while chairing the Senate Select Committee on POW/MIA Affairs, commented, 'I do not think more than a hundred, or a couple of hundred, pages of the thousands of [classified] documents we looked at had any current classification importance.' The classification system must be reformed if we are to preserve the critical role that transparent government plays in a functioning democracy."
President Obama cannot seriously talk of "transparency" without supporting efforts to reduce present classification of government documents by the 90% that experts like Secretary of State John Kerry and Pentagon whistleblower Daniel Ellsberg estimate would in no way harm national security.
The following steps are needed.
The Bottom Line: No Bulk Collection Of Americans' Phone And Internet Metadata, Destroy Files That Exist
Obama on August 8 announced a response to Snowden's revelations: "First, I will work with Congress to the following measures in pursue appropriate reforms to Section 215 of the Patriot Act, the program that collects telephone records. Second, we can take steps to make sure civil liberties concerns have an independent voice in appropriate cases by ensuring that the government's position is challenged by an adversary (before) the Foreign Intelligence Surveillance Court ...
Number three, the Department of Justice will make public the legal rationale for the government's collection activities under Section 215 of the Patriot Act ... Fourth, we're forming a high level group of outside experts to review our entire intelligence and communications technologies."
These were clearly illusory reforms, as the Electronic Frontier Foundation noted, that would continue mass surveillance of Americans. First, the Executive would continue to only tell Congress and the Judiciary what it felt was "appropriate"for them to know—including the FISC "adversary"; second, the "legal rationales" for Executive wrongdoing are just that: rationales which no one concerned about Executive surveillance can take seriously; and thirdly four of the five "outside experts" Obama wound up appointing are all deeply implicated in Executive wrongdoing, including former CIA Deputy Director Michael Morrell, and they are to report to director of National Intelligence James Clapper, a key architect of the surveillance state.
Predictably, the first meeting of this Potemkin Panel did not even discuss NSA surveillance of innocent Americans and only confined itself to private sector concerns. Open Technology Institute director Sascha Meinrath, who attended the meeting, declared that “My fear is it's a simulacrum of meaningful reform … Its function is to bleed off pressure, without getting to the meaningful reform."
A N.Y. Times editorial accurately noted that "President Obama proposed a series of measures on Friday that only tinker around the edges of the nation's abusive surveillance programs. It is the existence of these programs that is the problem, not whether they are modestly transparent. As long as the N.S.A. believes it has the right to collect records of every phone call ... then none of the promises to stay within the law will mean a thing."
Mr. Obama's "reforms" thus still envision continued Executive collection of hundreds of millions of Americans' phone and Internet records. Believers in democracy must set their own “red line” against surveillance of innocent Americans.
A line must be drawn somewhere. Once we allow the Executive to store all our emails and Internet communications for all time, why not allow them to read them if they decide it might protect somebody, somewhere, sometime? Why should a court get involved? Don't we trust them? As Edward Snowden has said, “the Internet is on principle a system that you reveal yourself to in order to fully enjoy, which differentiates it from, say, a music player. It is a TV that watches you.”
But this does not "protect" us nearly as efficiently as would a real TV or flat screen equipped with a transponder allowing them to watch us whenever they wish. Where do we draw the line?
Mr. Obama and present congressional leaders’ typically honeyed words mean nothing absent a complete halt to gathering information on innocent Americans. Republican House Judiciary Chair Robert Goodlatte, for example, recently declared "I am committed to … our nation's intelligence collection programs includ(ing) robust oversight, additional transparency, and protections for Americans' civil liberties." But at the same time he stated that “eliminating this program altogether without careful deliberation would not reflect our duty, under article I of the constitution, to provide for the common defense," and had opposed the Conyers-Amash amendment in July that would have ended NSA surveillance of innocent Americans.
The “reforms” proposed by Goodlatte and other Republican House leaders are clearly meant to head off any significant reform of NSA mass surveillance. A serious attempt to bring democracy to America must have the following bottom line: no mass surveillance of any kind of Americans about whom there is no evidence of wrongdoing. None.
The first and necessary step toward creating a "functioning democracy" in America is for both the House and Senate to pass the Conyers-Amash amendment forbidding NSA mass collection of phone and Internet American records of innocent Americans.
Institute Genuine Congressional Oversight
At the moment, congressional oversight of the Executive has become a pathetic joke. The Senate and House Intelligence Committees have clearly failed in their constitutional obligation to provide "checks and balances" on the Executive. Three major reforms are needed.
A. Elect Committees Who Oversee Not Promote Executive Wrongdoing, Beginning By Replacing Senator Dianne Feinstein And Rep. Mike Rogers.
The present heads of the House and Senate Intelligence Committees, Dianne Feinstein and Mike Rogers, and ranking minority party members Senator Saxby Chambliss and "Dutch" Ruppersberger, have merely served as spokespeople for the Executive, delivering a long series of deceptive "talking points" provided by the NSA meant to excuse rather than correct Executive abuses.
Mr. Rogers, a former Executive Branch FBI agent, has particularly distinguished himself by insulting the intelligence of both his fellow House members and the American people.
He has declared on Meet the Press that Snowden "went outside all of the whistleblower venues that were available to anyone in this government, including people who have classified information. We get two or three visits from whistleblowers every single week in the committee, and we—we investigate every one thoroughly. He didn't choose that route."
This is absurd. Mr. Rogers already knew, and had done nothing about, Snowden's concern that the Executive was collecting Americans' phone and Internet records. There was obviously no point for Snowden to go to Rogers, and the latter is clearly insulting the intelligence of the American people in continuing to make this crude claim.
Rogers' claim that other whistleblowers have avenues within government to correct Executive abuses is also untrue. The New Yorker has reported on how although NSA whistleblower Thomas Drake did go through official channels, nothing was done. Washington Post columnist Dana Milbank recently reported how DOD whistleblower Gina Gray was fired for seeking to correct DOD mismanagement at the Arlington National Cemetery, after using internal channels.
Milbank also commented "President Obama, in his news conference this month, said that Edward Snowden was wrong to go public with revelations about secret surveillance programs because 'there were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions.' This is a common refrain among administration officials and some lawmakers. But it's a load of nonsense. Ask Gina Gray."
Among their many other major failures of NSA oversight:
—Both Feinstein and Rogers claimed on ABC News on June 9 that NSA surveillance had been responsible for the capture of NY Subway Bomber Najibullah Zazi and Mumbai bomber David Headley. But two days later, in a story titled"NSA Surveillance Played Little Role In Foiling Terror Plots, Experts Say," the Guardian revealed that both men had been captured through surveillance in the UK, with no NSA input.
—Mr. Rogers first claimed that Snowden should be charged with espionage because his revelations had led to "changes in the way they communicate that we can already see being made by the folks who wish to do us harm." He then supported the administration's claim a few weeks later that a worldwide travelers' alert was based on the NSA overhearing the two top Al Qaeda "bad guys" —Ayman al-Zawari and Yemen's Wuhayashi—communicate with each other. Both statements cannot be true, and perhaps neither were. Furthermore, if true, releasing the information about this specific phone call was clearly a breach of national security, as it tipped off the two top Al Qaeda leaders that their phone calls were being overheard. If true, Rogers clearly would have committed precisely the act of revealing "sources and methods" that he claimed justified the charge of treason for Mr. Snowden.
—Both Feinstein and Rogers, like Obama, repeatedly claimed the NSA was not conducting illegal surveillance. Even after the Washington Post published its story on "thousands" of abuses involving tens of thousands of individual cases, Feinstein declared that "as I have said previously, the committee has never identified an instance in which the NSA has intentionally abused its authority to conduct surveillance for inappropriate purposes," and Roger said that he had seen he had seen "no intentional and willful violation of the law."
The paper also reported that "Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) did not receive a copy of the 2012 audit until the Post asked her staff about it."
Feinstein then changed her story, claiming that she had received the report under a different name. But the point was undeniable: she has clearly failed her oversight duties, not even bothering to read whatever study she saw revealing NSA abuses, let alone doing anything about them or even informing her own constituents of them.
—Numerous members have accused the House Intelligence Committee of withholding information from them. As the Guardian reported on August 14, “Morgan Griffith, a Republican who represents Virginia's ninth district, has been critical of the committee for blocking attempts by non-members to obtain information about classified programs. On August 4, the Guardian published a series of letters he had written to the committee requesting more details, all of which had gone unanswered.
Congress needs to elect Members of the Senate and House Intelligence committees who see their job as checking and balancing Executive power, not merely serving as spokespeople for it.
B. Indict Executive Branch Officials When They Commit Perjury
Executive Branch officials not only regularly lie to but hide information from Congress, most notably recently when director of National Intelligence James Clapper denied in open session that the NSA was collecting data on American citizens, and then compounded his lie a few days later by claiming he had misunderstood the question. Senator Wyden quickly revealed that he had sent the question over to him the day before the hearing. NSA chief Keith Alexander has also repeatedly lied to Congress. The N.Y. Daily News reported on a June 18 House Intelligence Committee hearing, for example, that ”NSA Director Gen. Keith Alexander testified his agency’s programs are subject to strict oversight.” Alexander also testified at the same hearing that NSA surveillance had caught the N.Y.C. Subway and Mumbai bombers, another lie revealed by the Guardian as noted above.
But though senators and representatives know they are being lied to by Executive Branch officials, they have not had the courage to indict them for perjury when they do so. Congress has allowed director Clapper and General Alexander to remain in their posts after knowing beyond any doubt that they have committed perjury before it. This lack of courage must end. The only way to stop Executive officials from lying to Congress and the American people is for Congress to swear them in and punish them when they are caught lying, at very least by dismissal from their posts, but ideally by criminal prosecution.
C. Give Congress the Right to Declassify Data Indicating Waste, Fraud, Abuse and Crimes By the Executive
One of the most shocking revelations concerning congressional oversight is that even when a member of the Senate Intelligence Committee like Sen. Wyden learns that the Executive is committing crimes against the American people, that senator is muzzled from revealing it to them. Although the senator could release this information on the floor of the Senate without fear of prison, he or she fears being attacked for jeopardizing national security, being removed from the Intelligence Committee, censure by colleagues, and/or losing the next election.
It is clearly time for the legislative representatives of people, not unelected members of the Executive, to be given the legal and moral right to declassify and make public Executive actions that they believe are illegal or immoral.
Someone must decide, after all, whether a given body of information should be kept secret from the American people. In a democracy, those who make this decision should represent the people of the nation, not gigantic, secret bureaucracies which regularly deceive the people and are accountable to no one but themselves.
D. Congress Must Have The Capacity To Genuinely Oversee Executive Agencies
Members of the Senate and House Intelligence Committees must assert their right to be treated as genuine representatives of the governed. To begin with, they must demand the right to take notes on classified material the Executive shows them and to have properly cleared staff members accompany or represent them at briefings. They must punish NSA staff members who play Orwellian word games with them, refusing to answer questions honestly unless the exact words are used as the NSA defines them, which they keep secret.
Members must also insist that they be given all information on NSA activities. At present, the NSA withholds significant information even from Senate and House Intelligence Committee members. Legislators must severely punish Executive Branch officials who continue to hide significant information from them.
Most importantly, however, Congress cannot exercise constitutionally-required oversight of Executive Branch activities unless they can independently investigate them. The Intelligence Committees, like the FISA courts (please see below), must hire significantly more staff, with the knowledge, power and mandate to oversee Executive Branch military, intelligence and police activities that potentially threaten the democratic rights of the American people.
Give the Judiciary the Capacity to Genuinely Oversee Executive Agencies Like the NSA
Meaningful judicial oversight of Executive Branch officials is the other fundamental pillar of the constitutionally-mandated system of checks and balances upon which democracy rests.
President Obama lied once again when he stated at a June 7 press conference that "federal judges are overseeing the entire program throughout.”
In fact, the Judiciary exercises no meaningful oversight of the Executive whatsoever. The FISA court established to oversee NSA surveillance, for example, is not allowed to judge specific cases and has only been given the right to approve the guidelines the NSA claims it is following—although the court does not know if it is in fact following them. Even more importantly, the Executive has asserted its right to withhold any information it wishes from the Judiciary, for example prosecuting individuals but not providing the court evidence of their wrongdoing on the grounds of "national security."
In response to this absence of judicial oversight, President Obama has promised simply to allow an "adversary" to argue against the NSA during a FISA court hearing. But since the Executive will continue to withhold any information it feels might harm its case on the grounds of "national security," this "reform" is meaningless.
FISA Court Head Judge Reggie Walton, a conservative who has betrayed his mandate by expanding Executive power rather than overseeing it, has revealed the heart of the problem with proper judicial oversight when he stated that, "The FISC (Federal Intelligence Surveillance Court) is forced to rely upon the accuracy of the information that is provided to the Court. The FISC does not have the capacity to investigate issues of noncompliance."
There is thus clearly one key step that must be taken if the Judiciary is to be given meaningful oversight over the Executive: it must be given the capacity, knowledge and information to make an informed judgment of Executive compliance with the law.
If the FISC is to provide genuine oversight over the NSA, it must be given a vastly expanded budget that allows it to hire hundreds if not thousands of its own intelligence experts, with the proper clearances and access to information.
And where might funds for the judiciary to hire its own analysts come from? As Dana Priest and William Arkin point out in Top Secret America, hundreds of billions of dollars have been given to the NSA and other intelligence agencies to expand their activities, to the point, they say, where "its entirety, as Pentagon intelligence chief James Clapper admitted, (is) visible only to God."
The intelligence community is clearly far too large and is wasting huge amounts of money, beginning with its storing of all phone and Internet records of American citizens. There is no rational relationship between the vast amount of money it spends and its results. Ending its surveillance of Americans will be an obvious first place to cut their budgets, and a portion of the savings should spent to give both the Legislative and Judicial branches the "capacity" to evaluate Executive Branch police and intelligence activities.
Provide Strong Whistleblower Protection
Kenneth Roth, Human Rights Watch executive director, has noted that "the whistleblower protection provided to government employees who expose evidence of wrongdoing does not extend to those who disclose what is deemed national security information. Whistleblowers facing prosecution can't even defend themselves by showing that their disclosures caused no harm and promoted the public interest. Wrongdoing involving this information is supposed to be revealed only to an agency's inspector general or to the congressional intelligence committees. Yet government employees who tried to use these procedures to complain about NSA overreaching faced retaliation and even prosecution — which might help explain why Snowden skipped these mechanisms and went directly to the media. The problem is aggravated by the government's temptation to protect information that is simply embarrassing or politically fraught rather than truly a matter of national security."
Genuine whistleblower protection would have two aspects. First, internal: ensuring that whistleblowers who do go through official channels have an independent body evaluate their charges, and provide them with full protection from punishment by superiors whose wrongdoing they have revealed.
Second, external: The Executive Branch must end its prosecution of whistleblowers who reveal classified information to the media or public; or, in those rare instances where there is a case for actual damage having been done to "national security," the whistleblower must receive a fair trial by a jury that is given access to the information in question so that it can determine to what extent national security was harmed, and that takes into account the whistleblower's motivation.
Restructure the Present System of Classification
Executive over-classification of information lies at the heart of its many threats to democracy. It classifies enormous amounts of information that could be of no conceivable use to our enemies, e.g. the equivalent of 20 million filing cabinets one agency classified in one 18-month period alone. Secrecy is by its very nature undemocratic. Executive classification of documents is also at the very heart of its threats to journalists and whistleblowers seeking to uncover Executive abuses.
Daniel Ellsberg has written an important article on how and why the Executive over-classifies information:
"One of the most experienced security authorities in the Pentagon, William F. Florence, who had drafted many of the Department of Defense regulations on classification, testified as an expert witness in Congressional hearings and in my trial that at most 5% of classified material actually satisfied the official criteria of potential relevance to national security (which he had played a major role in formulating) at the moment of original classification; and that perhaps 1/2 of 1% continued to justify protection after two or three years."
If 95% of what is classified would not help our enemies, why does it remain classified? Part of the answer is that if it was revealed it would embarrass Executive Branch officials, and/or reveal waste, fraud, abuse and illegal acts that could lead to calls to cut their budgets, their dismissal, and/or prosecution.
As Dana Priest and Bill Arkin also note in Top Secret America, a top-secret classification is a "passport to prosperity for life." It provides well-paying jobs and its holders are far less likely to face unemployment than those in the private sector.
Ellsberg also tellingly explores the psychological dimensions of the classification system:
"I suggest that there are psycho-social aspects (that) apply to 'secret societies' ranging from the Mafia or associations like the Masons to the CIA. It is a mark of worth, of membership in a valued group, possession of a valuable identity. It is a sign of being trusted by other members of the prestigious group: a token of being perceived by them as trustworthy, worthy of membership, of being 'one of them,' a 'brother' or 'member of the family.' Not only the membership in the group, but the specific acceptance of one's loyalty — to the group, to its purposes, to the other members, and its secrets— conveys and expresses a new, prestigious status, a positive identity, a source of self-respect and pride and a basis for the respect and deference of others."
While members of the Executive Branch thus have powerful practical, material and psychological motivations for hiding vast amounts of information from the American people that have nothing to do with national security, the American people have a correspondingly strong interest in preventing them from doing so any longer.
Ellsberg ends his article with a list of steps needed to curb Executive abuses of the classification system. They include: reducing the number of documents that are classified by over 90%, and keeping those that remain classified for no more than three years; at most administrative penalties not criminal prosecutions for leaks not involving communications intelligence, nuclear weapons data and identities of clandestine agents, and not even administrative sanctions for Executive Branch whistleblowers giving information to appropriate Members of Congress; effective whistleblower protection to all federal employees; vastly beefed up Freedom of Information Act processes; limiting the "States Secret privilege" allowing Executive officials to withhold information from even the judiciary; including in all secrecy agreements a clause that states that nothing in the agreement permits them give false or misleading testimony to Congress or the Judiciary; required briefing of all federal employees, military officers and members of Congress that the Oath of Office they all take to "support and defend the Constitution of the United States" requires them to disobey illegal orders.
Conclusion: A Non-Violent Call to Arms
The unprecedented coalition of liberals/progressives and conservatives/Tea Partiers which on July 24 almost passed a bill forbidding NSA spying on innocent Americans has offered the only hope that the U.S. Executive Branch's danger to democracy can be challenged.
Executive power is so great that a major moral and political struggle will be necessary to bring it under meaningful democratic control. Only a major "Coalition for Freedom" inside Congress and on the streets of America can prevent it from choking off what remains of democracy. Is democracy worth fighting for? Only if millions of us decide it is will America become a functioning democracy.
“Knowledge (of) the scale of our capability would raise public awareness generating unwelcome publicity for us and our political masters."—Classified UK NSA document
“To approve such a program, the Court must have every confidence that the government is doing its utmost to ensure that those responsible for implementation fully comply with the Court’s orders. The Court no longer has such confidence."—U.S. Foreign Intelligence Surveillance Court Order, p. 12, 3-9-2009
***
For those alarmed by the steady growth of lawless, violent and authoritarian U.S. Executive power for the last 50 years, the events of the past few months have been exciting. The emergence of a de facto coalition of progressives and conservatives opposing the National Defense Authorization Act law giving the Executive the right to unilaterally detain or execute American citizens without a trial, and NSA mass surveillance of phone and Internet data, has been unprecedented, and offers the first hope in 70 years that Executive power can be curbed
The most important development has been the public and congressional reaction to President Obama's proposal to strike Syria. A huge majority of the American people opposed even a limited military action by the Executive Branch. Reading the polls, the President decided to seek congressional authorization for a limited military action. For the first time in living memory, Congress clearly opposed him. It is too soon to say what this will mean for the future, but the implications clearly extend beyond just this particular strike or President.
The main arena besides the Middle East where the issue of the Executive Branch vs. Congress and the American people will play out in coming months will concern attempts to limit not only Executive surveillance of innocent Americans, but its other assaults on the very foundation of democracy itself.
The fundamental issue involved amidst the ongoing cascade of revelations about NSA wrongdoing is this: what must be done to roll back the Executive Branch's creation of a surveillance state, which is just one more major economic crisis or 9/11—as even centrists like Bob Woodward and Tom Friedman warn—from becoming a police-state.
Most of the focus until now has been on trying to absorb the dimensions of the surveillance state we have suddenly learned we are living in since June 6. But it is now time to focus on the actions needed to end its assaults on democracy.
This is not a simple question, either politically or technically. Politically, it is impossible to envision ending the surveillance state without a broad left-right coalition both in Congress and among the public devoted to doing so. But it will be difficult to maintain a coalition of progressives and Tea Partiers, liberals and conservatives, who neither trust nor respect one another—particularly when fought by an Executive that will hit back against attempts to control it with everything it has.
The technical questions are even trickier. How does Congress write and pass laws to prevent Executive Agencies from undertaking surveillance and population control measures when, to paraphrase Congressman Keith Ellison, "Congress doesn't know what it doesn't know"? How can Congress control Executive wrongdoing when Executive officials invoke the mantra of national security to avoid providing it with information?
Had Edward Snowden not risked life imprisonment or worse to reveal that the U.S. Executive Branch has created a surveillance state, we would still know virtually nothing about it. The ranking Senate and House Intelligence committee chairs, Dianne Feinstein and Mike Rogers, would still be covering up Executive wrongdoing, and even those members angered at its criminality would still be muzzled from saying anything. The Judiciary would still not only be rubberstamping Executive actions, but expanding Executive Branch power. The mass media would still be routinely conveying its denials of wrongdoing to the American people whenever the issue arose.
At present, when the heads of the Senate or House Intelligence Committees assure us that they are overseeing the Executive, what they mean is that they are dutifully repeating Executive talking points on documents provided them with the words "top secret" stamped on them, but only consisting of what Executive agencies want them to know. They have no means of independent oversight, which means they have no meaningful oversight. And the judiciary has not only acknowledged this, but said they no longer have “confidence” in the Executive.
If even the secret FISA Court no longer has confidence in the Executive, neither can the rest of us. During the 1960s, the FBI regularly used its secret intelligence to blackmail and threaten not only activists but politicians, presidents and Martin Luther King, Jr. As Internet security expert C.J. Radford has written, “the issue is what happens if this data, and these capabilities, fall into the wrong hands. A malicious government employee, a change in government, court rulings, regulations or leadership could all open this information, and these capabilities, up to cross agency analysis, open use, or criminal activity.”
That is, not only can this information be misused by government employees, but private sector companies, criminals and foreign governments as well. With the NSA spending 70% of its funding on contracts with private sector firms, which are even more corruptible than government agencies, this is a matter of urgent concern.
It is the height of naiveté to have any confidence whatsoever in the current system. It is clear that the heart of any serious attempt to create democracy in this nation must involve not only stopping such obvious assaults on democracy as the mass collection of phone and Internet records of innocent Americans, but a fundamental restructuring of the relationship between our three branches of government.
Since neither the courts nor Congress can any longer have confidence in NSA assertions, they clearly must give themselves the capacity—including experts with full access to raw data, answerable to them and not the Executive—to fulfill their constitutionally required mandate to check and balance Executive power.
This restructuring of relationships between the three branches of government must also profoundly alter the Executive's ability to hide its wrongdoing from the American people by classifying trillions of pages annually on the false grounds of "national security." In an article entitled “Ex-MI6 Deputy Chief Plays Down Damage Caused By Snowden Leaks,” for example, the Guardian reported that Nigel Inkster said that “Al-Qaida leaders in the tribal areas of Pakistan had been ‘in the dark’ for some time… referring to counter measures they had taken to avoid detection by western intelligence agencies. Other ‘serious actors’ were equally aware of the risks to their own security from NSA and GCHQ eavesdroppers, he said.”
The Executive Branch, as does the U.K.’s NSA as quoted above, keeps its secrets from the American people primarily to avoid the "political embarrassment" of having its fraud, waste, abuse and illegality revealed.
As a Brennan Center For Justice study on classification has noted, "Over-classification is rampant, and nearly everyone who works with classified information recognizes the problem. In 1993, Senator John Kerry, who reviewed classified documents while chairing the Senate Select Committee on POW/MIA Affairs, commented, 'I do not think more than a hundred, or a couple of hundred, pages of the thousands of [classified] documents we looked at had any current classification importance.' The classification system must be reformed if we are to preserve the critical role that transparent government plays in a functioning democracy."
President Obama cannot seriously talk of "transparency" without supporting efforts to reduce present classification of government documents by the 90% that experts like Secretary of State John Kerry and Pentagon whistleblower Daniel Ellsberg estimate would in no way harm national security.
The following steps are needed.
The Bottom Line: No Bulk Collection Of Americans' Phone And Internet Metadata, Destroy Files That Exist
Obama on August 8 announced a response to Snowden's revelations: "First, I will work with Congress to the following measures in pursue appropriate reforms to Section 215 of the Patriot Act, the program that collects telephone records. Second, we can take steps to make sure civil liberties concerns have an independent voice in appropriate cases by ensuring that the government's position is challenged by an adversary (before) the Foreign Intelligence Surveillance Court ...
Number three, the Department of Justice will make public the legal rationale for the government's collection activities under Section 215 of the Patriot Act ... Fourth, we're forming a high level group of outside experts to review our entire intelligence and communications technologies."
These were clearly illusory reforms, as the Electronic Frontier Foundation noted, that would continue mass surveillance of Americans. First, the Executive would continue to only tell Congress and the Judiciary what it felt was "appropriate"for them to know—including the FISC "adversary"; second, the "legal rationales" for Executive wrongdoing are just that: rationales which no one concerned about Executive surveillance can take seriously; and thirdly four of the five "outside experts" Obama wound up appointing are all deeply implicated in Executive wrongdoing, including former CIA Deputy Director Michael Morrell, and they are to report to director of National Intelligence James Clapper, a key architect of the surveillance state.
Predictably, the first meeting of this Potemkin Panel did not even discuss NSA surveillance of innocent Americans and only confined itself to private sector concerns. Open Technology Institute director Sascha Meinrath, who attended the meeting, declared that “My fear is it's a simulacrum of meaningful reform … Its function is to bleed off pressure, without getting to the meaningful reform."
A N.Y. Times editorial accurately noted that "President Obama proposed a series of measures on Friday that only tinker around the edges of the nation's abusive surveillance programs. It is the existence of these programs that is the problem, not whether they are modestly transparent. As long as the N.S.A. believes it has the right to collect records of every phone call ... then none of the promises to stay within the law will mean a thing."
Mr. Obama's "reforms" thus still envision continued Executive collection of hundreds of millions of Americans' phone and Internet records. Believers in democracy must set their own “red line” against surveillance of innocent Americans.
A line must be drawn somewhere. Once we allow the Executive to store all our emails and Internet communications for all time, why not allow them to read them if they decide it might protect somebody, somewhere, sometime? Why should a court get involved? Don't we trust them? As Edward Snowden has said, “the Internet is on principle a system that you reveal yourself to in order to fully enjoy, which differentiates it from, say, a music player. It is a TV that watches you.”
But this does not "protect" us nearly as efficiently as would a real TV or flat screen equipped with a transponder allowing them to watch us whenever they wish. Where do we draw the line?
Mr. Obama and present congressional leaders’ typically honeyed words mean nothing absent a complete halt to gathering information on innocent Americans. Republican House Judiciary Chair Robert Goodlatte, for example, recently declared "I am committed to … our nation's intelligence collection programs includ(ing) robust oversight, additional transparency, and protections for Americans' civil liberties." But at the same time he stated that “eliminating this program altogether without careful deliberation would not reflect our duty, under article I of the constitution, to provide for the common defense," and had opposed the Conyers-Amash amendment in July that would have ended NSA surveillance of innocent Americans.
The “reforms” proposed by Goodlatte and other Republican House leaders are clearly meant to head off any significant reform of NSA mass surveillance. A serious attempt to bring democracy to America must have the following bottom line: no mass surveillance of any kind of Americans about whom there is no evidence of wrongdoing. None.
The first and necessary step toward creating a "functioning democracy" in America is for both the House and Senate to pass the Conyers-Amash amendment forbidding NSA mass collection of phone and Internet American records of innocent Americans.
Institute Genuine Congressional Oversight
At the moment, congressional oversight of the Executive has become a pathetic joke. The Senate and House Intelligence Committees have clearly failed in their constitutional obligation to provide "checks and balances" on the Executive. Three major reforms are needed.
A. Elect Committees Who Oversee Not Promote Executive Wrongdoing, Beginning By Replacing Senator Dianne Feinstein And Rep. Mike Rogers.
The present heads of the House and Senate Intelligence Committees, Dianne Feinstein and Mike Rogers, and ranking minority party members Senator Saxby Chambliss and "Dutch" Ruppersberger, have merely served as spokespeople for the Executive, delivering a long series of deceptive "talking points" provided by the NSA meant to excuse rather than correct Executive abuses.
Mr. Rogers, a former Executive Branch FBI agent, has particularly distinguished himself by insulting the intelligence of both his fellow House members and the American people.
He has declared on Meet the Press that Snowden "went outside all of the whistleblower venues that were available to anyone in this government, including people who have classified information. We get two or three visits from whistleblowers every single week in the committee, and we—we investigate every one thoroughly. He didn't choose that route."
This is absurd. Mr. Rogers already knew, and had done nothing about, Snowden's concern that the Executive was collecting Americans' phone and Internet records. There was obviously no point for Snowden to go to Rogers, and the latter is clearly insulting the intelligence of the American people in continuing to make this crude claim.
Rogers' claim that other whistleblowers have avenues within government to correct Executive abuses is also untrue. The New Yorker has reported on how although NSA whistleblower Thomas Drake did go through official channels, nothing was done. Washington Post columnist Dana Milbank recently reported how DOD whistleblower Gina Gray was fired for seeking to correct DOD mismanagement at the Arlington National Cemetery, after using internal channels.
Milbank also commented "President Obama, in his news conference this month, said that Edward Snowden was wrong to go public with revelations about secret surveillance programs because 'there were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions.' This is a common refrain among administration officials and some lawmakers. But it's a load of nonsense. Ask Gina Gray."
Among their many other major failures of NSA oversight:
—Both Feinstein and Rogers claimed on ABC News on June 9 that NSA surveillance had been responsible for the capture of NY Subway Bomber Najibullah Zazi and Mumbai bomber David Headley. But two days later, in a story titled"NSA Surveillance Played Little Role In Foiling Terror Plots, Experts Say," the Guardian revealed that both men had been captured through surveillance in the UK, with no NSA input.
—Mr. Rogers first claimed that Snowden should be charged with espionage because his revelations had led to "changes in the way they communicate that we can already see being made by the folks who wish to do us harm." He then supported the administration's claim a few weeks later that a worldwide travelers' alert was based on the NSA overhearing the two top Al Qaeda "bad guys" —Ayman al-Zawari and Yemen's Wuhayashi—communicate with each other. Both statements cannot be true, and perhaps neither were. Furthermore, if true, releasing the information about this specific phone call was clearly a breach of national security, as it tipped off the two top Al Qaeda leaders that their phone calls were being overheard. If true, Rogers clearly would have committed precisely the act of revealing "sources and methods" that he claimed justified the charge of treason for Mr. Snowden.
—Both Feinstein and Rogers, like Obama, repeatedly claimed the NSA was not conducting illegal surveillance. Even after the Washington Post published its story on "thousands" of abuses involving tens of thousands of individual cases, Feinstein declared that "as I have said previously, the committee has never identified an instance in which the NSA has intentionally abused its authority to conduct surveillance for inappropriate purposes," and Roger said that he had seen he had seen "no intentional and willful violation of the law."
The paper also reported that "Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) did not receive a copy of the 2012 audit until the Post asked her staff about it."
Feinstein then changed her story, claiming that she had received the report under a different name. But the point was undeniable: she has clearly failed her oversight duties, not even bothering to read whatever study she saw revealing NSA abuses, let alone doing anything about them or even informing her own constituents of them.
—Numerous members have accused the House Intelligence Committee of withholding information from them. As the Guardian reported on August 14, “Morgan Griffith, a Republican who represents Virginia's ninth district, has been critical of the committee for blocking attempts by non-members to obtain information about classified programs. On August 4, the Guardian published a series of letters he had written to the committee requesting more details, all of which had gone unanswered.
Congress needs to elect Members of the Senate and House Intelligence committees who see their job as checking and balancing Executive power, not merely serving as spokespeople for it.
B. Indict Executive Branch Officials When They Commit Perjury
Executive Branch officials not only regularly lie to but hide information from Congress, most notably recently when director of National Intelligence James Clapper denied in open session that the NSA was collecting data on American citizens, and then compounded his lie a few days later by claiming he had misunderstood the question. Senator Wyden quickly revealed that he had sent the question over to him the day before the hearing. NSA chief Keith Alexander has also repeatedly lied to Congress. The N.Y. Daily News reported on a June 18 House Intelligence Committee hearing, for example, that ”NSA Director Gen. Keith Alexander testified his agency’s programs are subject to strict oversight.” Alexander also testified at the same hearing that NSA surveillance had caught the N.Y.C. Subway and Mumbai bombers, another lie revealed by the Guardian as noted above.
But though senators and representatives know they are being lied to by Executive Branch officials, they have not had the courage to indict them for perjury when they do so. Congress has allowed director Clapper and General Alexander to remain in their posts after knowing beyond any doubt that they have committed perjury before it. This lack of courage must end. The only way to stop Executive officials from lying to Congress and the American people is for Congress to swear them in and punish them when they are caught lying, at very least by dismissal from their posts, but ideally by criminal prosecution.
C. Give Congress the Right to Declassify Data Indicating Waste, Fraud, Abuse and Crimes By the Executive
One of the most shocking revelations concerning congressional oversight is that even when a member of the Senate Intelligence Committee like Sen. Wyden learns that the Executive is committing crimes against the American people, that senator is muzzled from revealing it to them. Although the senator could release this information on the floor of the Senate without fear of prison, he or she fears being attacked for jeopardizing national security, being removed from the Intelligence Committee, censure by colleagues, and/or losing the next election.
It is clearly time for the legislative representatives of people, not unelected members of the Executive, to be given the legal and moral right to declassify and make public Executive actions that they believe are illegal or immoral.
Someone must decide, after all, whether a given body of information should be kept secret from the American people. In a democracy, those who make this decision should represent the people of the nation, not gigantic, secret bureaucracies which regularly deceive the people and are accountable to no one but themselves.
D. Congress Must Have The Capacity To Genuinely Oversee Executive Agencies
Members of the Senate and House Intelligence Committees must assert their right to be treated as genuine representatives of the governed. To begin with, they must demand the right to take notes on classified material the Executive shows them and to have properly cleared staff members accompany or represent them at briefings. They must punish NSA staff members who play Orwellian word games with them, refusing to answer questions honestly unless the exact words are used as the NSA defines them, which they keep secret.
Members must also insist that they be given all information on NSA activities. At present, the NSA withholds significant information even from Senate and House Intelligence Committee members. Legislators must severely punish Executive Branch officials who continue to hide significant information from them.
Most importantly, however, Congress cannot exercise constitutionally-required oversight of Executive Branch activities unless they can independently investigate them. The Intelligence Committees, like the FISA courts (please see below), must hire significantly more staff, with the knowledge, power and mandate to oversee Executive Branch military, intelligence and police activities that potentially threaten the democratic rights of the American people.
Give the Judiciary the Capacity to Genuinely Oversee Executive Agencies Like the NSA
Meaningful judicial oversight of Executive Branch officials is the other fundamental pillar of the constitutionally-mandated system of checks and balances upon which democracy rests.
President Obama lied once again when he stated at a June 7 press conference that "federal judges are overseeing the entire program throughout.”
In fact, the Judiciary exercises no meaningful oversight of the Executive whatsoever. The FISA court established to oversee NSA surveillance, for example, is not allowed to judge specific cases and has only been given the right to approve the guidelines the NSA claims it is following—although the court does not know if it is in fact following them. Even more importantly, the Executive has asserted its right to withhold any information it wishes from the Judiciary, for example prosecuting individuals but not providing the court evidence of their wrongdoing on the grounds of "national security."
In response to this absence of judicial oversight, President Obama has promised simply to allow an "adversary" to argue against the NSA during a FISA court hearing. But since the Executive will continue to withhold any information it feels might harm its case on the grounds of "national security," this "reform" is meaningless.
FISA Court Head Judge Reggie Walton, a conservative who has betrayed his mandate by expanding Executive power rather than overseeing it, has revealed the heart of the problem with proper judicial oversight when he stated that, "The FISC (Federal Intelligence Surveillance Court) is forced to rely upon the accuracy of the information that is provided to the Court. The FISC does not have the capacity to investigate issues of noncompliance."
There is thus clearly one key step that must be taken if the Judiciary is to be given meaningful oversight over the Executive: it must be given the capacity, knowledge and information to make an informed judgment of Executive compliance with the law.
If the FISC is to provide genuine oversight over the NSA, it must be given a vastly expanded budget that allows it to hire hundreds if not thousands of its own intelligence experts, with the proper clearances and access to information.
And where might funds for the judiciary to hire its own analysts come from? As Dana Priest and William Arkin point out in Top Secret America, hundreds of billions of dollars have been given to the NSA and other intelligence agencies to expand their activities, to the point, they say, where "its entirety, as Pentagon intelligence chief James Clapper admitted, (is) visible only to God."
The intelligence community is clearly far too large and is wasting huge amounts of money, beginning with its storing of all phone and Internet records of American citizens. There is no rational relationship between the vast amount of money it spends and its results. Ending its surveillance of Americans will be an obvious first place to cut their budgets, and a portion of the savings should spent to give both the Legislative and Judicial branches the "capacity" to evaluate Executive Branch police and intelligence activities.
Provide Strong Whistleblower Protection
Kenneth Roth, Human Rights Watch executive director, has noted that "the whistleblower protection provided to government employees who expose evidence of wrongdoing does not extend to those who disclose what is deemed national security information. Whistleblowers facing prosecution can't even defend themselves by showing that their disclosures caused no harm and promoted the public interest. Wrongdoing involving this information is supposed to be revealed only to an agency's inspector general or to the congressional intelligence committees. Yet government employees who tried to use these procedures to complain about NSA overreaching faced retaliation and even prosecution — which might help explain why Snowden skipped these mechanisms and went directly to the media. The problem is aggravated by the government's temptation to protect information that is simply embarrassing or politically fraught rather than truly a matter of national security."
Genuine whistleblower protection would have two aspects. First, internal: ensuring that whistleblowers who do go through official channels have an independent body evaluate their charges, and provide them with full protection from punishment by superiors whose wrongdoing they have revealed.
Second, external: The Executive Branch must end its prosecution of whistleblowers who reveal classified information to the media or public; or, in those rare instances where there is a case for actual damage having been done to "national security," the whistleblower must receive a fair trial by a jury that is given access to the information in question so that it can determine to what extent national security was harmed, and that takes into account the whistleblower's motivation.
Restructure the Present System of Classification
Executive over-classification of information lies at the heart of its many threats to democracy. It classifies enormous amounts of information that could be of no conceivable use to our enemies, e.g. the equivalent of 20 million filing cabinets one agency classified in one 18-month period alone. Secrecy is by its very nature undemocratic. Executive classification of documents is also at the very heart of its threats to journalists and whistleblowers seeking to uncover Executive abuses.
Daniel Ellsberg has written an important article on how and why the Executive over-classifies information:
"One of the most experienced security authorities in the Pentagon, William F. Florence, who had drafted many of the Department of Defense regulations on classification, testified as an expert witness in Congressional hearings and in my trial that at most 5% of classified material actually satisfied the official criteria of potential relevance to national security (which he had played a major role in formulating) at the moment of original classification; and that perhaps 1/2 of 1% continued to justify protection after two or three years."
If 95% of what is classified would not help our enemies, why does it remain classified? Part of the answer is that if it was revealed it would embarrass Executive Branch officials, and/or reveal waste, fraud, abuse and illegal acts that could lead to calls to cut their budgets, their dismissal, and/or prosecution.
As Dana Priest and Bill Arkin also note in Top Secret America, a top-secret classification is a "passport to prosperity for life." It provides well-paying jobs and its holders are far less likely to face unemployment than those in the private sector.
Ellsberg also tellingly explores the psychological dimensions of the classification system:
"I suggest that there are psycho-social aspects (that) apply to 'secret societies' ranging from the Mafia or associations like the Masons to the CIA. It is a mark of worth, of membership in a valued group, possession of a valuable identity. It is a sign of being trusted by other members of the prestigious group: a token of being perceived by them as trustworthy, worthy of membership, of being 'one of them,' a 'brother' or 'member of the family.' Not only the membership in the group, but the specific acceptance of one's loyalty — to the group, to its purposes, to the other members, and its secrets— conveys and expresses a new, prestigious status, a positive identity, a source of self-respect and pride and a basis for the respect and deference of others."
While members of the Executive Branch thus have powerful practical, material and psychological motivations for hiding vast amounts of information from the American people that have nothing to do with national security, the American people have a correspondingly strong interest in preventing them from doing so any longer.
Ellsberg ends his article with a list of steps needed to curb Executive abuses of the classification system. They include: reducing the number of documents that are classified by over 90%, and keeping those that remain classified for no more than three years; at most administrative penalties not criminal prosecutions for leaks not involving communications intelligence, nuclear weapons data and identities of clandestine agents, and not even administrative sanctions for Executive Branch whistleblowers giving information to appropriate Members of Congress; effective whistleblower protection to all federal employees; vastly beefed up Freedom of Information Act processes; limiting the "States Secret privilege" allowing Executive officials to withhold information from even the judiciary; including in all secrecy agreements a clause that states that nothing in the agreement permits them give false or misleading testimony to Congress or the Judiciary; required briefing of all federal employees, military officers and members of Congress that the Oath of Office they all take to "support and defend the Constitution of the United States" requires them to disobey illegal orders.
Conclusion: A Non-Violent Call to Arms
The unprecedented coalition of liberals/progressives and conservatives/Tea Partiers which on July 24 almost passed a bill forbidding NSA spying on innocent Americans has offered the only hope that the U.S. Executive Branch's danger to democracy can be challenged.
Executive power is so great that a major moral and political struggle will be necessary to bring it under meaningful democratic control. Only a major "Coalition for Freedom" inside Congress and on the streets of America can prevent it from choking off what remains of democracy. Is democracy worth fighting for? Only if millions of us decide it is will America become a functioning democracy.
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Jojo the circus boy
Footballguy
This is great...
The answer to every security question I am ever asked is: Wesley Snipes
Why? Because I always bet on black.
Customer Service: Ok Mr. JoJo can you please verify your identity, what is your pet's name?
Me: Wesley Snipes
Customer Service: Thank you.
Customer Service: ... Is it really?
Me: Yes.
Customer Service: Ok and your mother's middle name?
Me: Wesley Snipes
Customer Service: ... thank you ...
The answer to every security question I am ever asked is: Wesley Snipes
Why? Because I always bet on black.
Customer Service: Ok Mr. JoJo can you please verify your identity, what is your pet's name?
Me: Wesley Snipes
Customer Service: Thank you.
Customer Service: ... Is it really?
Me: Yes.
Customer Service: Ok and your mother's middle name?
Me: Wesley Snipes
Customer Service: ... thank you ...
tom22406
Footballguy
Same here and it's refreshing to read even though I may not agree with some of the stuff they publish.
Hersh does bring up some very valid points here and sad to say I think he's right on how the journalist go about business and not much will change with the NSA program.
Sadly,most don't even care.
Yeah, journalists in this country are very reluctant to challenge the government and that has been clear since the Iraq debacle (at least). Unless they are on the fringe and driven by ideology which isn't a very unbiased view. Hard to get an realistic picture of what is happening on the US without relying on foreign news sources.
Yet another thing giving the government more control over the populace.
Jojo the circus boy
Footballguy
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The Commish
Footballguy
Came here to post about McAfee myself....too slow. Personally, I think he's full of ####. That's not how technology works. It's only a matter of time before the government gets a hand on one of his devices and figures it out, but I know he'll be very successful in selling these things in the short term. Lots of conspiracy theorists out there. He certainly knows how to stir up the natives.
tom22406
Footballguy
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tom22406
Footballguy
Been saying this all along that we really are only touching the tip of what is actually going on and I'm at the point now where nothing will surprise me at all and judging by the slowdown in this thread most either say it is what it is and we can do nothing about it or we have Tim saying all is fine and this is troubling but acceptable.
His silence here is kinda odd though recently,did he give up trying to defend this or what?
The Commish
Footballguy
His hands are full warning everyone in the GOP thread that the sky is falling. He can only do so much.
Kinda glad we are ex-Tim, but the silence in the media about this stuff is the most concerning....
timschochet
Footballguy
Commish is right; I am preoccupied with other things.
But beyond that, I can't defend this anymore. The tipping point for me was the report that the NSA was giving information to the DEA, covering their tracks, and that the DEA was using this info as a means to prosecute people. I held out hope that this wasn't true, but it's been reported by several credible sources, including AP, I believe. I can't support that kind of action.
tom22406
Footballguy
tom22406
Footballguy
Indeed it is very concerning but with the way they bounce from crisis to crisis I see why.
SacramentoBob
Footballguy
Now that tim is against this I feel the need to be for it.
He is only against it when they give it to the DEA. All this other stuff is fine.
Ex-Microsoft privacy adviser: I don't trust company after NSA revelations
wn
Microsoft's former chief privacy adviser says he does not have faith in the security of the software company's technology, following revelations about the US's NSA spy agency published in the Guardian.
Caspar Bowden, who between 2002 and 2011 was in charge of the privacy policy for 40 countries in which Microsoft operated – but not the US – told a conference in Lausanne, Switzerland, that he was unaware of the Prism data-sharing program when he worked at the company.
"I don't trust Microsoft now," he said, adding that he only uses open source software where he can examine the underlying code. He also said he has not carried a mobile phone for two years.
In June the Guardian revealed that an NSA program called Prism could demand data from a number of technology companies at will using court orders that were never rejected.
Bowden said the extent of the NSA's surveillance efforts – where it shares and gathers intelligence with the UK's GCHQ and intelligence agencies in Canada, New Zealand and Australia – was undermining democracy.
"The public now has to think about the fact that anybody in public life, or person in a position of influence in government, business or bureaucracy, now is thinking about what the NSA knows about them. So how can we trust that the decisions that they make are objective and that they aren't changing the decisions that they make to protect their career? That strikes at any system of representative government."
The wording of the Foreign Intelligence Surveillance Act (Fisa) under which the NSA gathers intelligence means that "there's no protection if you're not an American", said Bowden.
He added: "We're living through a transformation in surveillance power that's never been seen before on earth. And we don't know what type of government or leader will come to power next and exploit it. It could be the next president. It could be this one."
Another speaker at the conference, digital activist Jacob Appelbaum, who has worked with WikiLeaks and on the Tor anonymity system, suggested that some employees of the NSA should be arrested if they visit Europe on the basis that by deliberately weakening cryptographic systems they had put people in danger.
Earlier this month the Guardian explained how NSA and GCHQ have worked to insert mathematical weaknesses into cryptography systems used to scramble internet data and other information.
That has put people at risk of their lives, Appelbaum argued. "People who commit mass human-rights violations, they should be prosecuted," he said. "The NSA has a slogan internally — 'we track 'em, you whack 'em' – where they help to target drone strikes." Such strikes were an abuse of natural justice, he said.
http://www.theguardian.com/world/2013/sep/30/microsoft-privacy-chief-nsa
wn
Microsoft's former chief privacy adviser says he does not have faith in the security of the software company's technology, following revelations about the US's NSA spy agency published in the Guardian.
Caspar Bowden, who between 2002 and 2011 was in charge of the privacy policy for 40 countries in which Microsoft operated – but not the US – told a conference in Lausanne, Switzerland, that he was unaware of the Prism data-sharing program when he worked at the company.
"I don't trust Microsoft now," he said, adding that he only uses open source software where he can examine the underlying code. He also said he has not carried a mobile phone for two years.
In June the Guardian revealed that an NSA program called Prism could demand data from a number of technology companies at will using court orders that were never rejected.
Bowden said the extent of the NSA's surveillance efforts – where it shares and gathers intelligence with the UK's GCHQ and intelligence agencies in Canada, New Zealand and Australia – was undermining democracy.
"The public now has to think about the fact that anybody in public life, or person in a position of influence in government, business or bureaucracy, now is thinking about what the NSA knows about them. So how can we trust that the decisions that they make are objective and that they aren't changing the decisions that they make to protect their career? That strikes at any system of representative government."
The wording of the Foreign Intelligence Surveillance Act (Fisa) under which the NSA gathers intelligence means that "there's no protection if you're not an American", said Bowden.
He added: "We're living through a transformation in surveillance power that's never been seen before on earth. And we don't know what type of government or leader will come to power next and exploit it. It could be the next president. It could be this one."
Another speaker at the conference, digital activist Jacob Appelbaum, who has worked with WikiLeaks and on the Tor anonymity system, suggested that some employees of the NSA should be arrested if they visit Europe on the basis that by deliberately weakening cryptographic systems they had put people in danger.
Earlier this month the Guardian explained how NSA and GCHQ have worked to insert mathematical weaknesses into cryptography systems used to scramble internet data and other information.
That has put people at risk of their lives, Appelbaum argued. "People who commit mass human-rights violations, they should be prosecuted," he said. "The NSA has a slogan internally — 'we track 'em, you whack 'em' – where they help to target drone strikes." Such strikes were an abuse of natural justice, he said.
http://www.theguardian.com/world/2013/sep/30/microsoft-privacy-chief-nsa
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