Tag Archives: surveillance

March 12, 2014 · 9:43 am

Surveillance state (cont): FISA courts fail to check Executive

by Christopher B. Daly 

“Experience has shown, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.”
― Thomas Jefferson

So it goes. As Jefferson warned us, the nature of power is to be aggressive, to try always to expand rather than to contract or even to abide. Today brings a fresh revelation about the FISA Courts and the Executive Branch. Thanks to Charlie Savage and Laura Poitras of the New York Times, we now know what some of us have long assumed — that U.S.  intelligence agencies have steadily expanded their powers to spy on Americans and have run through, around, top-secret-stampand over the few legal restraints put on them by Congress. Working with a new batch of documents leaked by Edward Snowden from the NSA, the journalists focus on steps taken in secret by the George W. Bush administration, with the compliance of the secret(ive) FISA Court, to respond to the attacks of 9/11 by expanding the powers of the surveillance agencies. From the Times:

Previously, with narrow exceptions, an intelligence agency was permitted to disseminate information gathered from court-approved wiretaps only after deleting irrelevant private details and masking the names of innocent Americans who came into contact with a terrorism suspect. The Raw Take order significantly changed that system, documents show, allowing counterterrorism analysts at the N.S.A., the F.B.I. and the C.I.A. to share unfiltered personal information.

Obviously, there is a challenge here to the Congress: since the executive and judicial branches won’t stop this, the legislative branch must do something to rein in the surveillance state.

I would feel more optimistic about the chances of that happening if it weren’t for the “Spy v. Spy” drama playing out right now between the Senate Intelligence Committee and the CIA. Briefly, the committee thought it would be a good idea to look into the years of torture carried out by the CIA. The agency would have none of that, so it set up an operation that not only spied on the congressional committee’s staffers but engaged in a bit of cyberwarfare by hacking into the committee’s computers and deleting material. Has there ever been a more rogue operation? [Not only that: the CIA, which shows no respect for the rule of law, then had the chutzpah to refer the matter to the Justice Dept. to prosecute the Senate staffers involved. Now, that shows that someone at the agency at least has a sense of humor. Sheesh.]

imgres

Leave a comment

Filed under Journalism, New York Times, Politics, President Obama, surveillance, Uncategorized

Tagged as , , ,

March 11, 2014 · 3:28 pm

Surveillance State (cont): Snowden: Why build a big haystack?

By Christopher B. Daly 

Edward Snowden, the former NSA contractor who divulged the secret surveillance that the agency conducts on innocent American civilians, made a good point in his recent “public appearance.” Still stuck in Russia, Snowden imgres3spoke to the SxSW conference, via teleconference, thanks to multiple encrypted relays to disguise his actual location.

The Times chose to put its story in the Business section (which was unfortunate, I think) on the apparent grounds that Snowden’s big pitch was aimed at U.S. tech and social-media companies, telling them that they need to step up their privacy. They already knew that, so I am not sure what the news value was there.

Of greater interest was the theme developed by the Washington Post’s Ellen Nakashima. She emphasized Snowden’s view that the NSA is so swamped with big data from its indiscriminate surveillance that it is not doing a very good job of tracking individual bad guys (which is, after all, what we want them to do).

‘‘We’ve actually had a tremendous intelligence failure because . . . we’re monitoring everybody’s communications instead of suspects’ communications’’ — a situation, he asserts, that has ‘‘caused us to miss’’ intelligence.

Come to think of it, for all the money that we spend on the intelligence community as a whole, and for all the compromises we make with the Constitution and our liberties, how great is the return? Where are the answers to these questions:

–Did anyone know that Putin would seize Crimea? Did anyone tell President Obama?

–Did anyone predict the Boston Marathon bombing?

–Did anyone predict the uprising that toppled Mubarak in Egypt?

–Can anyone tell us how to get rid of Assad in Syria?

–Did anyone know what was coming in Benghazi?

–What about 9/11? What about the fall of the Berlin Wall?

Basically, we need to ask: why do all the big, important things seem to come as such a surprise (to our presidents as well as to the average informed citizen)?

Whenever you don’t find something, doesn’t that tell you that you’re looking in the wrong places?

 

 

Leave a comment

Filed under Journalism, New York Times, Politics, President Obama, surveillance

Tagged as , , , , ,

January 30, 2014 · 9:33 am

Surveillance state: NSA chief sees threats everywhere

By Christopher B. Daly 

In what universe does it make sense that DNI James Clapper still has his job?

He should have been charged with contempt of Congress for lying under oath and sacked by his boss, President Obama. Instead, there he was yesterday testifying to Congress.

He used the platform Congress gave him to denounce Edward Snowden, the former NSA contractor who spilled the beans on the illegal and questionable programs and tactics run by imgres3our intelligence agencies. Of course, he blamed Snowden for serious but vague damage done to America. On examination, what he really means is that Snowden made life difficult for our spy agencies. Whether he caused any other kind of damage is unclear. (transcript, anyone?)

To quote the Times:

Mr. Clapper did not give specific examples to bolster his assessment about the damage Mr. Snowden had done. He also did not say whom he believed Mr. Snowden’s accomplices to be.

But he wasn’t finished. Turns out, he sees “threats” everywhere. There are bogeymen all over Asia, the Mideast and Africa. Everywhere he looks, he sees nukes, bio-chem weapons, conspiracies, and an ever-mutating array of threats. Most of these threats are either hypothetical, localized in some faraway place, or intramural disputes between people who are no friends of ours. At the risk of sounding like some kind of neo-isolationist (which I am not), I have to observe that almost none of the threats hinted at by Clapper involve real, credible, imminent attacks on the territory of the United States.

But that’s not the standard for our military-intelligence complex. There, the issue is whether someone presents a threat (of any kind) to something known as “American interests” — a term that has no specific definition. It is so vague and all-encompassing that it could mean almost anything — a kidnapping threat against a U.S. citizen anywhere in the world, for example, or an apolitical piracy operation that menaces U.S. shipping anywhere in the world.

The fact is, not every problem in the world is an American problem, and not every problem in the world has an American solution. But if you are seeking to justify the existence of your agency and get more money for your budget, it behooves you to play up all these “threats.”

Thanks to Sen. Ron Wyden, D-Oregon, who has emerged as the great skeptic in Congress. (He’s the one Clapper lied to, face to face, last year.) At this week’s hearing, Wyden

said that the dealings between spy agencies and their congressional overseers were crippled by a “culture of misinformation.”

Speaking of executive actions, this is one problem Obama could solve today, without needing an act of Congress. Fire Clapper.

 

Leave a comment

Filed under Journalism, leaks, media, Politics, President Obama, surveillance

Tagged as , ,

January 17, 2014 · 3:56 pm

Surveillance state: What Obama should have said about NSA

By Christopher B. Daly

President Obama had an opportunity today to say (and thereby do) something meaningful about reining in the surveillance state and re-asserting the Constitution. Disappointingly, he whiffed. 

Here’s what I think he should have said:

1. First and foremost, he should have said, I’m sorry. He should have expressed regret that since taking office, he has fallen under the spell of all the people in the Pentagon and White House whose job it is to tell goblin stories every day to the president. He showed far more common sense when he was a private citizen and even as a U.S. senator than he has been showing since he began starting each day listening to the presidential Daily Briefing, which is basically a  serial horror story told by the surveillance/security apparatus.

2. He should have made a pledge. He should have said that if you are a U.S. citizen living in the United States and you are not a suspect in a crime, then you have an absolute right to be left alone. The government has no business spying on you. He could have quoted the Fourth Amendment of the Bill of Rights, which says, in part:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, 

He could have explained that in a modern context, your house means not only your literal house but also your apartment and your office and your motor vehicle. Cops and spies cannot enter those places without your leave. Extracting information from me without my permission outside of a criminal investigation is, on the face of it, an unreasonable search.

3. He should have added, If you are a U.S. citizen who is not suspected in a crime, then you have the right to be left alone not just by the NSA but by the whole government — the NSA, the CIA, the FBI, the IRS, the DOJ, the DEA, your state police, everybody.

4. He should have announced a policy that needs no Congressional approval: No more secret policies about secrets. He should have handed out copies of his administration’s legal memorandum laying out its constitutional rationale for its current practices. He should have said (as he did) that we cannot just get out of the spy business. We have legitimate reasons for spying on other countries and on terrorists. And we will need to keep the operational details of those operations secret. That’s obvious, and I know of no one who disagrees. But the president should have gone further and said, Under the Constitution, any president needs to go to Congress and say, in a general way, Here’s what we need to do … here’s why … here’s how much it will cost. Please vote for it.

5. He should have said that if you are a U.S. citizen who is suspected of a crime, you have an array of legal protections under the Constitution, under state and federal laws, and under case law, and we have no intention of messing with those.

6. If you are not a U.S. citizen, you’re on your own.

7. If you are a terrorist, watch your back.

In short, he should have said: Under our precious Constitution, the government should be transparent to the people, and the people should be opaque to the government.

Instead, he cherry-picked incidents from U.S. history to try to establish the idea that massive secret spying on law-abiding Americans in peacetime is somehow normal. He made it clear that he thinks no one did anything wrong (including Clapper, who blatantly lied to Congress under oath) except for Edward Snowden. And he offered some half-measures and said on anything difficult I am either going to punt or send it to a committee. Disappointing.

Here are other takes, by Jeffrey Rosen and Geoffrey Stone and John Cassidy.

Here’s the president’s text. You decide.

 

 

1 Comment

Filed under Obama, Politics, President Obama, surveillance

Tagged as , , ,

January 7, 2014 · 12:08 pm

Surveillance State: An old-school leak of FBI docs

By Christopher B. Daly

History keeps happening.

Thanks to a new book by former Washington Post journalist Betty Medsger called The Burglary, 51HydAvzamL._AA160_Americans can now see another example of principled, patriotic, non-violent dissenters who made America a better place by risking jail to bring important truths to light. The New York Times has a good story today about it, including a terrific video. More is at NPR.

To set the scene:

–It was a time in American history when we were fighting an undeclared war halfway around the world.

–We were fighting against people whose history, culture, and language we did not understand.

–We could not tell friend from foe.

–With each passing year, the insurgency grew stronger and we never managed to “pacify” any territory.

–American citizens tried to stop the war and were castigated as disloyal, unpatriotic.

–The government engaged in a secret, illegal campaign to find and crush people it considered terrorists.

The year was 1971, at the height of the American war in Vietnam, not 2003 or 2004, at the height of the U.S. “war on terror.” (Instead of al Qaeda, the FBI was targeting domestic “terrorists” like the Weathermen and the Black Panthers) After years of peaceful protests, a small group of anti-war activists decided to try a new tactic: break into an FBI office, remove the files, and divulge the secret contents to the news media.

Here is a template for national security leakers. The break-in described in the new book took place in the Philadelphia suburb of Media, Pa., on March 8, 1971. That very same week, Daniel Ellsberg made his first contact with New York Times reporter Neil Sheehan to discuss divulging the massive secret files that became known as the Pentagon Papers. In both cases, people who found that they could not change policy through normal politics and who could not legally blow the whistle on wrongdoing decided to go outside the law — risking prosecution and jail — in the hope that disclosing secrets would lead to a desirable change.

The comparisons to Edward Snowden are obvious. As a contract employee for the NSA, Snowden learned that the government has built a vast spying operation since 9/11/01 that includes secret top-secret-stampsurveillance of millions of law-abiding Americans in peacetime and that officials hid and lied about.

The anti-war burglars in the Media FBI break-in hurt no one and did almost no property damage (they had to jimmy a lock to get in). As a result of their disclosures, no one died and the sky did not fall. Instead, the disclosures added fuel to the anti-war movement and provided vital clues to the wider disclosures that led to the Church Committee investigation and reforms.

In the Media break-in, the only apparent crime was simple burglary, and the statute of limitations expired long ago. So, there is no question of penalties as these American heroes emerge from the shadows.

 

 

 

 

Leave a comment

Filed under Journalism, journalism history, leaks, media, surveillance

Tagged as , , , , , , , ,

January 4, 2014 · 12:02 pm

Surveillance state: The rationale for secrecy is, of course, SECRET

By Christopher B. Daly

top-secret-stampYou may think you are a sovereign citizen of a free country. You may think that “we, the people” rule through elected representatives who are accountable to us. But that would be wrong.

The latest affront to self-government is a ruling issued by a federal appeals court on Friday (beware of Friday rulings). Here’s the background:

Thanks to accused leaker Edward Snowden, we know that the U.S. government runs a secret program in which the government calls on the telephone companies to hand over information about you without a court order or subpoena, even if you are not suspected of any wrongdoing. You were not supposed to know about it, but that cat is now out of the bag.

So, you might want to know where the government gets off concocting such a scheme and how it could possibly square such massive, secret, peacetime spying on law-abiding citizens with the Constitution. Well, too bad. The Obama administration’s lawyers, who wrote a memo in 2010 attempting to justify the whole thing, decided that the memo itself should be kept secret, and President Obama agrees.

The Electronic Frontier Foundation and others filed suit seeking to get access to the memo. The government refused. On Friday, Judge Harry T. Edwards said no. EFF can’t see it and neither can we, the people. According to a link-rich story in today’s Times by the redoubtable Charlie Savage, the ruling seems likely to stand.

This is just the latest cause for disappointment in President Obama when it comes to transparency and press freedom. If he wanted to really serve those great causes, he could:

–stop prosecuting and issuing subpoenas to reporters at an unprecedented pace

–stop over-classifying new material as “secret”

–begin reducing the backlog of classified materials that can be de-classified with no harm

–adopt the common-sense reforms recommended by his own task force on surveillance issues.

There are many things to admire about Barack Obama, but his record in this area is not one of them Perhaps it confirms that the Founders were right to be suspicious of executive power per se, regardless of the individual wielding that power. They saw, rightly, that power is by its very nature aggressive, always seeking to expand and never yielding unless forced to do so.

Leave a comment

Filed under First Amendment, history, Journalism, journalism history, leaks, New York Times, Politics, President Obama, Uncategorized

Tagged as , , , , ,

December 20, 2013 · 2:28 pm

Surveillance state: NSA reforms driven by Snowden (and Greenwald)

By Christopher B. Daly 

This may be obvious, but I think it bears repeating:

Absent journalists (and their sources, of course), President Obama would not have appointed a task force on the NSA, he would not have welcomed a debate over surveillance, and he would not be forced to consider reforms. From today’s Times:

While few in the White House want to admit as much in public, none of this would have happened without the revelations by Edward J. Snowden, the former N.S.A. contractor now in asylum in Russia. While Mr. Obama has said he welcomes the debate about the top-secret-stampproper limits on the N.S.A., it is not one he engaged in publicly until the Snowden revelations began. Now the president has little choice — this week alone a constellation of forces is pushing for change: A federal judge called the bulk-collection program “almost Orwellian,” while some in Congress, many of his allies and Silicon Valley executives demanded change.

So, let’s give thanks to Edward Snowden and Glenn Greenwald for enabling us to act as citizens of a free country. In the end, Americans may decide that they like being spied on. If they do, I will still disagree, but I will say, So be it. What I cannot abide is the grasping for power that goes beyond the constitution, American laws, and common sense.

 

1 Comment

Filed under New York Times, President Obama, surveillance

Tagged as , , , , ,

December 18, 2013 · 3:15 pm

Surveillance State: Don’t Spy on Me!

By Christopher B. Daly     top-secret-stamp

[Update: here’s the report. More later. ]

As the White House moves to speed up its response to overreach by the NSA, it is worth reviewing exactly what the issue is. I write a lot on this blog about the First Amendment, because press freedom is one of my big themes. But press freedom is all of a piece with our other freedoms — freedoms which, by the way, we have as citizens. We don’t get them from the government; we don’t even get them from the Constitution. (We assert or articulate them in the Constitution, but that’s all). We have rights because we were endowed with them by our Creator, or because they are our birthright as free citizens of a free country.

One part of the Constitution that we need to keep in mind during the revelations about the NSA spying is the Fourth Amendment. Here is the text (as maintained by the National Archives):

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

At a minimum, that begins to define my relationship with the government by saying, Hands off. I have the right to be secure (not just to feel secure, but to actually BE secure) in my body, my house, and all my paper and electronic records. We start, then, with the premise that the government should LEAVE ME ALONE. If the need should arise to search me, or my place, or my stuff, then the government must first go to court and secure a warrant from a judge. To get such a warrant, some government agent must swear that there is “probable cause” to believe that it would be fruitful to search a particular person, place, or thing.

In my view, that single sentence should have kept me (and the rest of us) secure from surveillance and record-keeping about my activities, movements, affiliations, and all the rest. Instead, the Bush and Obama administrations embarked on a peacetime program of data-gathering about every U.S. citizen without so much as a by-your-leave — no warrants, no subpoena, no notice. If the president and Congress think this is a great idea, then they need to come to us, the people, the sovereign rulers of this country, and ASK US. They need to say, “Hey, would it be OK with you if we collect data about your every phone call and email and keep it indefinitely?And we won’t tell you when it starts or ends, and the legal rationale for it will be a secret, and we will get approval from a secret court that only hears from the government. Would that be OK with you?”

I would say, NO. I would say, LEAVE ME ALONE. I would say, DON’T SPY ON ME.

Thanks again to Judge Leon for his recent decision knocking the legal legs out from under the government’s position. And here is a fine analysis of that ruling by TNR’s Jeffrey Rosen.

1 Comment

Filed under President Obama

Tagged as , , , ,

November 18, 2013 · 2:51 pm

Surveillance state: Cops don’t like GPS tracking either

By Christopher B. Daly 

This is rich.

Today’s Boston Globe has a story  about a contract dispute between Boston’s street cops and the city. The city wants to put GPS tracking devices in all Boston Police cruisers, ostensibly so they can mobilize patrolmen more rapidly in a crisis.

Turns out, the cops don’t want GPS trackers to be used on them. They don’t like it any better than the rest of us do, and they want to bargain with the city to keep GPS devices out of their cruisers.

Great quote from the Globe story:

“No one likes it. Who wants to be followed all over the place?” said one officer who spoke anonymously.

And another one — from the patrolmen union’s lawyer:

“This thing keeps a permanent record of where an officer is all day. If he stops to go to the bathroom, that stop appears on the screen. If he goes a mile over the speed limit, someone can question that. It’s quite an intrusion on people’s lives.”

Exactly. This is exactly why ordinary, law-abiding citizens don’t want to be watched all the time either.

This comes on the heels of a U.S. Supreme Court ruling back in January, in which the court held that it was an invasion of privacy for police agencies in general to slap a GPS tracker on the automobile of a suspect who has not been charged with a crime.

I welcomed that decision, but now the Boston police cruiser case raises a question: why not track the cops? After all, when they are on duty, this is a workplace issue, not a privacy issue. We give them those cruisers and the guns they carry and the power that goes with the badge. For 40 hours a week, while they are exercising that awesome power, and if they are put on notice first, then I would be okay with monitoring the cops. After all, someone has to watch the watchers.

Quis custodiet ipsos custodes? 

 

 

1 Comment

Filed under surveillance

Tagged as , ,

July 25, 2013 · 11:44 am

The surveillance state dodges a bullet

By Christopher B. Daly 

imgres3It was disappointing to see the vote in the House on a measure to rein in the NSA fall a bit short on Thursday. It was particularly disappointing to see my own Rep., the rookie Joe Kennedy, vote on the wrong side. (Was he taking one for Obama? Not worth it. Here’s a tip, Joe: Never vote with Michelle Bachmann.) Interesting to note that many of the Democrats in favor were members with tremendous seniority — they have seen presidents come and go, they are not afraid to buck the party’s floor leadership, and they have been lied to so many times by the surveillance state that they have just had it.

On the plus side, this rather hurried attempt to rein in the surveillance state came darn near passing. Getting 205 votes in the House is not nothing, and it certainly sends a powerful signal around Washington and the world.

Here’s coverage in today’s Times, Post and the Atlantic.

A look ahead, from the Times (quoting Rep. Jerry Nadler):

At the very least, the section of the Patriot Act in question will be allowed to expire in 2015, he said. “It’s going to end — now or later,” Mr. Nadler said. “The only question is when and on what terms.”

 

Secret stuff. You probably shouldn't even be looking at this.

Secret stuff. You probably shouldn’t even be looking at this.

 

Leave a comment

Filed under Journalism, Politics, President Obama

Tagged as , , ,