This is a good out for Obama. He can't cancel the program or he may appear soft on terror, hurting Democratic presidential chances. Furthermore, the underlying surveillance law was passed by Congress (FISA Amendments Act of 2008), and he has a duty to uphold it. However, he doesn't want to continue these programs unless they are constitutional. Letting the Supreme Court review the program either shuts it down or gives it a stamp of legality. Now that derived evidence has been introduced into a criminal court, someone finally has standing to sue. This may be a part of a gradual wind down of the war on terror.
However, he doesn't want to continue these programs unless they are constitutional.
Yo, that's some wicked spin ya' got on that sentence of yours.
Implying the slightest good intention to Obama in these circumstances seems deplorable.
If Obama didn't want to enforce the program, he could have stopped when it was secret and no one could complain. If there's an objective "guide" to Obama's supposed intentions, it's what his administration did in secret because they had very few controls on their surveillance approach.
The better to describe thing is: He'd like to continue program and he'd like to have it declared constitutional.
And don't bet this won't be declared constitutional given the Supreme Court's history and it's entanglement with the current system. Sure it would be lighting the constitution fire, tearing it, vaporizing the pieces and throwing them in a volcano. But hey, that's progress.
Here's an interesting thought: maybe Obama's intentions are good but he's in a bubble of information and influences that corrupts his thoughts to overlook the the very concerns that alarm the crowd here at HN.
I'm of the naive opinion that he is not a sleeper muslim communist agent bent on destroying America; that he really wants to do the best he can for America.
He's not always right in his beliefs, but has been public about his intentions, e.g., continuing engagement in Afghanistan.
Well, I could construct a complicated theory in which his actions do not reflect who he "truly is"... but why would I? It's his actions that matter, and his actions on these matters have been pretty much unremittingly in favor of government power, no matter what curtain of glittering words he tries to draw over it.
If his "true self" doesn't match his actions... frankly, that's hardly even a "defense", that's just further damnation.
Do intentions even matter? I mean, this is the problem with only having a left and right divide. No talk of the authoritarian vs libertarian aspect of policy.
As far as I'm concerned, you elect an authoritarian on the left, to pacify that side, and pass authoritarian policies. To say that they're really good guys, and shouldn't be held accountable, is defending the status quo IMO.
Obama and the Supreme Court are pro authoritarianism, and will not question more power, nor will they dismantle it.
Who here is suggesting malice? Assuming he believes he is doing what is right, a natural answer to your second question would be that he simply actually believes it is necessary in order to protect national security, and that this overrides any other concerns he might have about the programs.
As a two time Obama voter and lifetime Democrat, I wish I could agree. However, I just don't share the optimism.
There have been many opportunities for him to break through that bubble - it's not like there has complete silence on the issue. And what kind of President oversees constitutional breaches of this magnitude and then manages to overlook the entire issue? It's too big, too serious and too illegal for him to be some sort of innocent participant.
The relentless pursuit of whistleblowers, his unwillingness to address the NSA/4th amendment/etc debate on its merits, lack of movement on key policy fronts (anti-drug policy, DHS, serious financial system reform) - all of it indicates to me that while he is not a Muslim Communist Terrorist Baby Killer, he also does not espouse any of the left of center beliefs he held as a younger politician, and for someone who voted him in to see symbolic leadership and practical progress on all these issues, he has been a huge disappointment.
I personally will be campaigning heavily for independent candidates at most levels of government in the future. I will certainly never vote Democrat again. For someone who campaigns, votes, and participates in all areas of civic life, these last few years have left me very disillusioned.
he's in a bubble of information and influences that corrupts his thoughts to overlook the the very concerns that alarm the crowd here at HN
I'm pretty sure Obama is better informed, has a more thorough background in constitutional law, and has spent significantly more time thinking about these issues than just about anyone in the crowd here on HN.
I should be clearer: I don't think Obama wants to end foreign surveillance (totally constitutional), or even metadata surveillance (declared constitutional by SCOTUS).
It's the unintentional collection of data on U.S. citizens that is politically damaging. However, he can't kill that part of the program himself as it totally hobbles the NSA's foreign surveillance capabilities--it's very hard for them to correctly screen out U.S. citizens. To achieve a 0% false positive rate, they'd probably have to throw away 99% of traffic with today's techniques.
So he'd either like the courts to do it for him, or for them to validate the approach (as you say). Showing that NSA data is being used to prosecute a terrorist is a political win, either way.
Blaming congress for this is an easy out, but doesn't stand up to real scrutiny. Lets not forget that the executive branch has a secret interpretation of the law, one that many in congress were unaware of, that allowed them to go well above and beyond anything actually authorized by congress.
Senators have repeatedly complained that provisions of FISA have been secretly interpreted in ways that differ markedly from the language of the statute. These interpretations, according to the Senators, are contained in opinions issued by the FISC.
It's clear to me (and I hope everyone) that the executive branch and particularly the DoD is not transparent.
While most laws exist simultaneously in the distinct (and sometimes even contradictory) forms of statutes, rules, and operational norms, foreign intelligence laws start out by necessity with fuzzy statutory foundations, and end by necessity with secret operational norms. This situation is indeed exacerbated by the DoD's (and, I suppose, FISC's) unwillingness to be clear about its rules and rulemaking process.
But this is an article about the use of surveillance evidence as criminal evidence. So, my refined question would be, in what sense does this executive branch have secret rules or norms that apply to the criminal justice system?
While most laws exist simultaneously in the distinct (and sometimes even contradictory) forms of statutes, rules, and operational norms, foreign intelligence laws start out by necessity with fuzzy statutory foundations, and end by necessity with secret operational norms. This situation is indeed exacerbated by the DoD's (and, I suppose, FISC's) unwillingness to be clear about its rules and rulemaking process.
Thomas - I can't help but feel that you're using words and definitions (aka splitting hairs) to defend something that should not be defended here. With enough effort, almost any unethical behaviour can be made to look justifiable given the circumstances, the complexity of the world, etc etc.
In my experience, I've found that a much quicker test of ethics is using the incredibly powerful subconscious brain that we have evolved with, which allows us to make pretty quick decisions about issues of right and wrong. In this case, it's pretty clear which side is wrong and needs to be brought to task and examined more closely. In no way can you possibly suggest that the level of mass spying that the NSA/GCHQ are engaging in is on the right side of the ethical line in the sand and retain any credibility as... as a human being.
As for the hair-splitting, I can engage in that too:
> So, my refined question would be, in what sense does this executive branch have secret rules or norms that apply to the criminal justice system?
Because the executive branch created the secret spying system and then allowed it to feed into the criminal justice system as a secret source of information. Whether or not they knew about the "parallel construction" (which I prefer to call "lying to the judge's face"), they were an essential element of it. Probably they knew, given how sensitive it is.
Irrespective, though, these people have done nothing to earn your staunch support. Have they?
It's not a case of innocent before proven guilty. First of all, we're talking about a state, not a person. Secondly, there is overwhelming evidence of guilt.
This is an extremely disingenuous comment. It pretends that I'm making an argument in favor of dragnet surveillance, and pretends that it's inviting a discussion while at the same time asserting that it's impossible to come to any conclusion other than its own while "retaining credibility as a human being". Then it asserts a premise that isn't in the original article or in my comment and demands that I somehow justify it.
tedivm: blaming congress is an easy way out. Congress themselves have complained that the executive branch has been overstepping the boundaries it had set in secret.
you: really? evidence?
logn: here you go. Senators have repeatedly complained that the laws are being deliberately misinterpreted.
you: blargh! laws exist simultaneously in multiple forms, you can't possibly expect them to be applied exactly as they've been phrased!
There's a word for that: apologism. Why are you stooping to that? Stop defending those who don't deserve your efforts to defend them.
You're a highly reputable security expert and founder of a highly reputable security business. You have enormous credibility with the HN crowd and outside of it (hell, you're the top commenter on https://news.ycombinator.com/leaders by karma, by 70'000 points!). But with every one of these comments in which you defend these people for no reason other than wordplay you lose a little bit of that reputation, at least with me.
You're a highly reputable security expert and founder of a highly reputable security business. You have enormous credibility with the HN crowd and outside of it (hell, you're the top commenter on https://news.ycombinator.com/leaders by karma, by 70'000 points!). But with every one of these comments in which you defend these people for no reason other than wordplay you lose a little bit of that reputation, at least with me.
You seem to be worried that people will be persuaded by tptacek just because he's tptacek, rather than by the content of his comments. But, somewhat ironically, you're helping that process along by being so emotional when countering his arguments. E.g. I wouldn't want to associate myself with what you're advocating: "Don't think. Trust your feelings." So even if there's some truth to what you say, it's obscured by the way you're expressing it.
EDIT: I've figured out what's upsetting about this exchange. You're not trying to change his mind. That would require you give him some credit, and you seem unable to. You're just trying to attack him (poorly). If forum members don't resist that sort of feeling, then forums will degenerate into flamewars. Therefore what you're doing now is poisonous to HN.
That is not what I am advocating. Please read my other comment.
I am worried that every time one of these arguments pop up, tptacek suddenly sprouts fifteen heads like a hydra and starts defending "the system". That worries me, because I don't understand why he feels that is worthy of his time, and none of the explanations I can come up with are satisfactory in view of his standing in the community.
Volumes of comments can appear convincing even though they are made by a single person (I've experienced that in flame war situations).
Edit: Perhaps. In any case, I need to go now, so I'll stop and let this rest. That said, I'm still worried.
When you bring someone's professional reputation into a discussion that has nothing to do with that person's profession and then make the claim that their comments risk impacting that professional reputation, that's bullying. It also signals a carelessness about professionalism on your part: when you say that your opinions about someone's professional reputation depends in some way on their politics, you are implicitly warning your peers that information they get about professionals from you is tainted by your own political opinions. It's a bad rhetorical strategy and you should reconsider ever using it again.
As for your summary of the conversation, here is what actually happened:
* The story is about DOJ adopting a policy of providing notice when evidence in a case is derived from surveillance intelligence.
* The top of the thread suggests that this was a politically good move for Obama, who is (according to that commenter) essentially required to execute surveillance policies set up by Congress.
* The comment I replied to refuted that argument by suggesting that the Obama administration has little respect for the laws of Congress to begin with.
* I replied by suggesting that refutation conflated a lack of transparency in an area of law specifically designed by Congress not to be transparent with a general contempt for the laws of Congress, which contempt is not actually in evidence. I also, as you pointedly refused to acknowledge, expressed dissatisfaction with that state of affairs.
* Various commenters cited evidence of a lack of respect for the laws of Congress which were, to my eyes, all further evidence of the former point (opaqueness and "flexibility" in an area of law that was designed to be opaque and open-ended) and not the latter. I then refined my comment to be about criminal law, which is the subject of the story the thread is based on.
* Along comes 'swombat to tell me that I'm an apologist for the state, a not-credible human being, and at risk of putting my professional reputation in doubt.
I think a close reading of the thread will bear my interpretation out, and, more importantly, show how different that interpretation is from the one you provided.
Right, so having done a bit of thinking about this, I'd like to apologise for making the statements above publicly. I do stand by them, and based on the number of upvotes my comments received there I was not alone in forming the impression I did. However, my concerns, justified or not, should have been sent privately rather than making a public fuss about it on a thread at the top of HN.
It was a mistake to post this as a thread on a public forum, and I apologise for that.
I think you should be wary that other people might form the same impressions that I've formed, and perhaps be more exact and clear in your responses. For example, you say you meant to say:
> I replied by suggesting that refutation conflated a lack of transparency in an area of law specifically designed by Congress not to be transparent with a general contempt for the laws of Congress, which contempt is not actually in evidence. I also, as you pointedly refused to acknowledge, expressed dissatisfaction with that state of affairs.
When what you said was:
> It's clear to me (and I hope everyone) that the executive branch and particularly the DoD is not transparent.
> While most laws exist simultaneously in the distinct (and sometimes even contradictory) forms of statutes, rules, and operational norms, foreign intelligence laws start out by necessity with fuzzy statutory foundations, and end by necessity with secret operational norms. This situation is indeed exacerbated by the DoD's (and, I suppose, FISC's) unwillingness to be clear about its rules and rulemaking process.
> But this is an article about the use of surveillance evidence as criminal evidence. So, my refined question would be, in what sense does this executive branch have secret rules or norms that apply to the criminal justice system?*
I still don't quite see where you point out that there's a conflation of "a lack of transparency in an area of law specifically designed by Congress not to be transparent with a general contempt for the laws of Congress, which contempt is not actually in evidence". Perhaps I'm not smart enough to read between the lines, but then that's probably the case of others too. What it sounded to me was a get-out clause for anyone to ignore the laws (roughly equivalent to the statement "no one can possibly know exactly what was meant by the people who wrote the law, so those who vigorously stretch the meaning of those laws are perfectly in their right to do so.").
Surveillance is a touchy topic for many. It can get people emotional. I'm sure I'm not the only one who feels that the society that is currently forming thanks to those laws is a direct existential threat - i.e. that if those people win the game entirely, I (and you) will either have to join them and give up our freedom to choose to do the right thing, or give up our lives. I'm sorry I brought this up in a public forum rather than via an email, but I think you should be aware of this possible reactions to what I (and perhaps others) sometimes perceive as a vigorous defence of the government surveillance programmes.
Happy to continue this conversation by email if you wish to do so. My email is on my blog, at swombat.com.
I liked this whole thread and think everyone had good points. This is just what happens when a bunch of really smart geeks start debating :)
Also, I personally don't think it's unfair to occasionally call out people individually when they've reached epic commenter status... people do it to pg all the time, and anyone who's in the public light gets this, and tptacek has reached that level on HN. And the great thing is, we're all here to hash these concerns out... ah, if only people with real power (politicians and corporate elite) were so accessible.
I agree, and I was equally troubled by it. In addition to the points you made, I am uncomfortable with the advice in it: feel your way through problems, don't think. I agree with the conclusion that the level of spying that is going on is wrong, but not with the means through which swombat said we should come to that conclusion.
Anyone who knows me knows I don't advise feeling your way through problems.
However, when it comes to ethics, in the vast majority of cases, your gut judgement points in the right direction - at the very least in terms of deciding that there's something bad going on here that should be investigated further.
It is impossible to honestly look at the facts we currently have and declare that the current state of affairs is not seriously fucked up and needing a lot of attention, transparency, and probably purging.
Your gut feeling will simply let you realize when something doesn't line up with your predefined societal, cultural, familial and personal beliefs. Relying on your gut as some universal ethical and moral thermometer is extremely flawed.
There have been plenty of people throughout history that had no problem subjugating other people for their own gain, and I do not believe they all knew at some level that it was wrong and chose to ignore it.
The point of both rational and passionate discussion is to change personal beliefs. If enough people are swayed, then changes in familial, cultural and societal beleif structures may follow.
In other words, many people may implicitly trust the government, and their gut feeling may be that all is well.
Your gut feeling will simply let you realize when something doesn't line up with your predefined societal, cultural, familial and personal beliefs.
You do realise that this is exactly what our ethical and moral systems are based on, right?
Ethics does not exist in a vacuum. It is a function of our societal, cultural, familial and personal beliefs.
Ultimately, no matter what rational argument you might make to yourself for (let's use an extreme example) killing an innocent person, taking their stuff, raping their daughters, hanging their sons, burning their village and drinking wine in their skull, you will feel that that's wrong, and you will avoid doing so if you can. Even if you were magically transported in some kind of viking environment where this is perfectly reasonable behaviour according to everyone around you, your moral compass, which comes from those beliefs that you have accrued and which largely define who you are, would (I hope) make you feel very bad about doing this, and it would take an enormous effort (or a deranged mind) to slip from the relatively civilised present into such an environment without any difficulty.
Certainly there are people whose moral compass is totally fucked. Sociopaths/psychopaths come to mind. However, I am operating from the assumption that I am not one of those people. I can prove that to myself through simple observation of my life.
There are certainly biases in the intuitive shortcut for ethics. As I pointed out before, it doesn't work well when the topic is very emotional (which I guess you could say surveillance can be for some). Also, as you rightly point out, it is not very adaptable to change. This merely means that when faced with a new situation, if you're not used to evolving your morals with the times, you need to make an extra effort to do so. By now, when faced with new things I tend to react first conservatively (I am but human), but then quickly by accepting that there are many good things in the world that I'm not aware of, and that difference or unfamiliarity are no reason to condemn.
Intuition is a really powerful tool. I strongly encourage you to test its uses and limits for yourself, and see how you can get this amazing tool to work for you, rather than ignoring it and relying purely on analytical thinking that can be explained to others.
We are saying very close to the same thing. I don't believe intuition should be ignored outright - it is indeed a very useful tool - but it should be used only as a clue to help you define your own thoughts and stance more clearly. The fact that something "feels wrong" is not a persuasive argument to change, but it should be a persuasive argument to yourself (and to others if they trust your opinion) that further thought and discussion may be needed, as something may be being overlooked.
Intuition used as a direct reason for action puts us in the realm of lynch mobs and herd mentality. It is indeed a powerful tool, and as such has great power over us. I think the best check we can put on it is the rational mind. If you can't come up with a rational reason why you feel a certain way, maybe it's in fact your intuition that needs to be put in check. That was really the reason for my response. I have an immediate negative reaction to appeals through emotion. That's not to say that what you are arguing for is wrong, just that I refuse to take a feeling like that as a persuasive argument, as surely with a little time a more coherent argument can be formed, and if not, then that's definitely reason for pause.
In my experience, I've found that a much quicker test of ethics is using the incredibly powerful subconscious tool that we have evolved with (called our brain)
I'm a little shocked to hear such a remark coming from you. You've historically been thoughtful. I can understand if you're just having a bad day, but there's nothing that could possibly be gained by talking down to someone like that.
which allows us to make pretty quick decisions about issues of right and wrong
Also, this second half is just nonsense. If you believe you're thinking for yourself, but your decisions about ethics are always quick, then you probably aren't. You're probably letting society's moral fashions determine your belief system for you.
Re: "called our brain" - that was not actually meant to be an insult, but I can see how it could be read like that. I'll go and edit that out, as that was not the intention.
Re: thinking methods - analytical thinking is not the only way to think effectively. Logic has its limits. I am loathe to shift the discussion to a meta-argument about thinking approaches. But here goes...
It has been my experience that intuitive thinking can arrive at useful conclusions faster than analytical thinking. It is in fact the way that most people function (though I'm not defending it as a general approach) - by jumping to a conclusion and then rationalising it.
However, in some cases, this intuitive thinking (described but not fully discussed in "Blink") can be useful. Blink itself gives a number of examples where it works. In my own experience, the areas where it is most effective are:
- ethics: whilst I have on occasion changed my mind from my initial intuitive ethical stand, that has been rare and usually involved a shift in fundamental assumptions and world view, not just an argument.
- judging people: in hiring, in particular, the few times I have hired someone that I didn't get a good feeling from almost instantly, I have regretted it. Same for dating and other people interactions.
- business risk: while a good feeling is not sufficient to make a decision, getting a bad gut feeling about a business decision seems (across many successful entrepreneurs) to be a very good reason to pull out of a deal or other situation immediately without further discussion. I've certainly seen that in my experience too.
There are other contexts - and also contexts where this kind of thinking definitely doesn't work, like relationships, for example, which are way too emotionally charged - but I think this will do for an HN comment.
> in what sense does this executive branch have secret rules or norms that apply to the criminal justice system?
It considers itself above the law to the point of being able to kill Americans without trial.
That aside, 40 years ago the NSA stated that it was above the law because it was created by Executive decree and tus not bound by statutory law:
"NSA does not have a statutory charter; its operational responsibilities are set forth exclusively in executive directives first issued in the 1950s. One of the questions which the Senate asked the Committee to consider was the "need for specific legislative authority to govern the operations of...the National Security Agency."
According to NSA's General Counsel, no existing statutes control, limit, or define the signals intelligence activities of NSA. Further, the General Counsel asserts that the Fourth Amendment does not apply to NSA's interception of Americans' international communications for foreign intelligence purposes." [1]
[1] Church Committee Report on NSA Surveillance Affecting Americans (1975)
That's a grotesque oversimplification and decontextualization of the administration's position. Every administration has considered itself able to "kill Americans without trial" (a) on foreign soil, (b) during hostilities, (c) when the target has allied itself with an adversary. American citizens fought along the Nazis and could not expect due process from Allied machine guns. Similarly, every American police force considers itself able to kill American citizens without trial, when those Americans are threatening deadly force in such a way that killing them is the most certain way to save lives.
Your quote about the NSA has nothing to do with criminal evidence.
You over simplify too. Shooting someone in a war zone with confusion explosions and well, a war happening is a bit different to assassinating someone with a drone. Calculated and controlled targeted killing of an individual is nothing like the front lines in WW2. It is an awful lot closer to murder in my opinion. But human rights haven't been a strong suit in US policy, particularly when off US soil, for some time.
It's interesting to observe that targeted airstrikes have been generating similar moral responses since the time they involved people dropping grenades out of the open cockpits of propeller planes.
Those were not really tattered in the same sense though were they? I am aware of the response early air strikes caused, but even then there were usually (always?) between countries that were at war. The number of drone strike that occur in countries that there is no war with is disturbingly high, and the civilian death rate is classified. How can anyone justify the program when the so called collateral damage isn't allowed to be discussed? Its hard to call the program moral when we don't understand the damage it is doing.
If what we're talking about here is the extreme danger of declaring war on an ill-defined organization rather than a nation state, you and I are on the same page. The 2001 AUMF against "Al Qaeda" will probably go down in history as a world-historical foreign policy blunder.
But if what we're talking about is the idea that a clearly-defined Al Qaeda target operating in a territory that is self-evidently fertile ground for the operation of paramilitary death squads should somehow have been served with some kind of due process notification rather than being sniped from orbit, I'm less sure I'm on the same page with you.
For one thing, drone strikes kill far fewer people than ground operations do. Read any story about soldiers operating in middle eastern theaters (or Vietnam, for that matter) --- hell, read accounts of Army Ranger squads operating in theater --- and I think you'll see where I'm coming from. Somebody's old grandfather sticks his head out a window looking to see what the commotion is at the wrong time, and blam, he's a target. Ground combat (at least as long as it's conducted by humans on the ground) is necessarily horrific and anything that spares both sides those horrors is at least worth considering.
So that's a little shotgun blast of my thoughts about drone strikes.
> I am aware of the response early air strikes caused, but even then there were usually (always?) between countries that were at war.
As long as there have been states, there have been "non-state" actors that field real, no-shit militaries, with which to go to war.
The most famous example from history is the scourge of piracy on the high seas. You'll note that ships that would hoist the Jolly Roger would be treated with a military response, not a police one.
So, the legal framework for drone strikes against non-state belligerents is not nearly as nebulous as it's made out to be. In fact there's actually quite a bit of precedent within international law.
I realise you just picked an example, but shooting at some guys in a ship with a Jolly Roger is quite different to operating in an area full of civilians via camera. Civilians are hard to tell apart from combatants (although the US seems particularly blind to civilian/combatant difference judging by leaked videos). I don't think you could argue that the US is operating within international laws. It's striking countries that can't stop the incursions and don't want them . The country only protests feebly, as the US props the governments up. This increases the level of resentment. The US drone strikes a few of its so-called enemies (very little info is released, so no one really knows who's killed), whilst bumping off a few civilians that got in the way. Its not hard to see the vicious cycle.
Killing American citizen without a trial puts American citizens on the same footing as any peasant in history.
> Your quote about the NSA has nothing to do with criminal evidence.
It shows historical patterns of gross negligence in observing legalities by the Executive Branch that lead to things like killing your own citizens based on your own "evidence" without benefit of a trial.
> They are not forthcoming about what the interpretation might be because it's exempt from FOIA.
So, the safe thing is to assume that anything permitted by Section 215 is actually being performed. In other words, the executive branch is not expanding the law, but they are refusing to detail what specific areas within the law they are paying special attention to, since that would simply be a blueprint of areas to avoid.
If the executive actually is being allowed by the judiciary to do things which are outside the scope of the public law (incl. section 215) then that's a serious matter indeed. But we don't typically demand that the executive always detail the implementation plan to implement the requirements of the law.
Imagine being able to call the police department and get an exact list of DUI enforcement areas along with exact times for weeks in advance.
I never got the complaints of secret interpretations. I have a secret interpretation of what someone is saying when they're trying to BS me about something. This is basically saying "The administration sees this one way, but they're not telling us how they see it"
It's not a secret law. It's just how they interpret it (and even without the secrecy, would it be that surprising to find they consider their actions constitutional?)
> However, he doesn't want to continue these programs unless they are constitutional.
That's a strong statement, one that I don't believe has any support other than campaign rhetoric (ie: no real support)
One only needs to look at the signing into law of the patriot act extension and the NDAA to see that Obama is in no way different than Bush when it comes to these sorts of laws.
Reading the original article this appears to have absolutely nothing to do with Obama and any of his campaign promises of rhetoric, but everything to do with Mr. Verrilli discovering that the argument he made to the SCOTUS (ultimately leading to the dismissal of the case in favor of the DOJ) was based on a lie and/or is no longer true.
> However, he doesn't want to continue these programs unless they are constitutional
Citation needed. So far I haven't need Obama even imply that he doesn't actually want these programs. All that he has said or implied so far was that we need to accept the mass surveillance, because that would be a "balance" between privacy and security. He believes this is a the "balance" - regardless of its constitutionality (and so far the administration has done everything in its power to fight against cases that question the legality of it all).
Also, Dianne Feinstein explicitly said the Obama Administration wanted FISA Amendments Act to be renewed, too, when she asked Senate to renew it last year.
The executive branch willfully fails to enforce many laws passed by Congress as well as breaking clear restrictions on it imposed by that body and the Constitution. I would not presume to know the President's mind and will suggest that you do not either, but his actions and track record are fairly clear. I know he was elected by many with the hope that he would end the ludicrously named "War on Terror", but it simply hasn't come to fruition. I would hope that after almost 5 years of this behavior we would cease pinning our hopes on the President.
"Obama" has nothing to do with this. They argued themselves into a corner; telling the Supreme Court they inform accused of the source of the evidence to win a "no standing" (under the assumption that someone would have standing), then not informing anyone.
I clearly remember Obama denouncing the wholesale and indiscriminate surveillance of innocent people prior to his election to the presidency, yet now that he's in the White House he's suddenly promoting the very programs which he once found deplorable.
Or maybe they just realized they couldn't really legally justify the the "parallel reconstruction" thing where they basically lie to the court through omission.
"through omission"? I thought the parellel construction concept involves coming up with an explicit fake story about how some unrelated thought process happened to take the investigtion in a direction which ended up uncovering the evidence in question.
However, he doesn't want to continue these programs unless they are constitutional...This may be a part of a gradual wind down of the war on terror.
Obama has expanded the war on terror to several new countries, and oversees assassinations by drone regularly. He may talk convincingly about civil rights, but he has overseen the expansion of a system denying people those rights, and I have no doubt he is completely aware of just how pervasive and unconstitutional these surveillance programs are but has no intention of changing them, just as he has no intention of winding down the war on terror (as shown by his actions, not his words).
This is not an "out" but rather it is an "in." This terrible fourth amendment violation will be rubber stamped by the judiciary and this practice will filter it's way down to the local level.
Then the last step of this terrible spiral will be unscrupulous intelligence officials planting digital evidence to make a case or do "what is right for the country."
I wonder what was the genesis of this policy change? From a legal standpoint, they were untouchable with the whole "parallel construction" thing.
This has the potential to get the whole program killed. Did someone in charge with both the clout and the morality to do the right thing take a risk? Some other reason? This fascinates me.
"Parallel construction" requires investigators to discover independent probable cause or an arrestable offense by the target; it refers to the use of surveillance information to be "at the right place at the right time", but is not a generic mechanism that transforms surveillance intelligence into admissible evidence.
Perhaps it was when the Solicitor General lied to the Supreme Court? As he/his office has to appear there often it behooves him to maintain a good relationship with the court.
It seems like the Solicitor General made his case to the Supreme Court, claiming defendants would be notified. Fast forward to recently, Dianne Feinstein goes and tells a reporter that yes, we've used evidence from a warrantless wiretap in this particular case. That guy's lawyer responds with the legal version of "wait, what?", the Solicitor General realizes that he (unknowingly?) lied to the Supreme Court, throws a fit (because you don't lie to the Supreme Court), Justice orders prosecutors to start revealing when such evidence is used, and now guy is mounting a legal challenge and ACLU/EFF/EPIC are going after the original case, wherein the Solicitor General (knowingly?) lied to the Supreme Court.
the Solicitor General realizes that he (unknowingly?) lied to the Supreme Court
From the article:
After reading the article, Mr. Verrilli sought an explanation from the National Security Division, whose lawyers had vetted his briefs and helped him practice for his arguments, according to officials with knowledge of the internal deliberations. It was only then that he learned of the division’s practice of narrowly interpreting its need to notify defendants of evidence “derived from” warrantless wiretapping.
There ensued a wider debate throughout June and July...
The timing seems a co-incidence with the Snowden leaks on parallel construction.
The entire point of parallel construction is that no court will ever know it was used in a case, so there is never a case in which it can be challenged, making it and the surveillance used untouchable by courts.
My guess is that the defendant covered his tracks well, so the DoJ couldn't come up with a parallel construction in this case, and felt, based on the wiretap, that this guy was dangerous enough to risk the whole program on.
I hope the challenge is successful, and that they can eventually use legal means to nail this guy later. :\
Seems like the other big story here might be that the Solicitor General probably knowingly committed perjury in front of the Supreme Court. It says in the article that he "discovered" this past June that defendants weren't notified and two paragraphs down it talks about how he stated in arguments in front of the Supreme Court a year earlier that defendants facing such evidence would be notified.
> Mr. Muhtorov is accused of planning to travel abroad to join the militants and has pleaded not guilty.
I don't want to distract anyone from the conversation but I don't understand the case. The prosecutors are just accusing him of planning to join militants? No actual firm conspiracy/plans to actually cause any physical harm? No actual target to attack?
What crimes are the prosecutors trying to prove here?
I don't know about the US law, but in at least some european countries (like austria, where I grew up) "getting guidance with the purpose to commit terrorist attacks" is actually crime. As well as "approval of terrorist attacks" (which are quite liberal defined).
In my expectation, the US should not be too far "behind" on prosecuting those thought crimes.
"Thought crime" like conspiring to commit murder is also a crime, as it turns out.
But then it's not really a strict thoughtcrime in the 1984 sense either, since it does still involve overt acts. E.g. simply saying that 'terrorists are cool' wouldn't get you charged, but starting a specific plot to conduct an attack and taking actions to advance that plot could, even if those "actions" are simple matters of coordination and communications... again, just like for ordinary homicide.
"E.g. simply saying that 'terrorists are cool' wouldn't get you charge" ...in austria? Yes, if you do it in front of 30 or more people (definition of "in public") it would get you charged. Well, of course not in the form of an obvious joke like "terrorists are cool" but if the prosecutor sees it as an "approval" of terrorist attacks.
Huge deal, as this will most likely set the stage for a Supreme Court ruling that will define this generation's privacy rights.
The liberal justices voted as a bloc together in CLAPPER, DIRECTOR OF NATIONAL INTELLIGENCE,
ET AL. v. AMNESTY INTERNATIONAL USA ET AL. to try to challenge the constitutionality of warrantless wiretaps, and I expect much the same from Kagan, Ginsburg, Breyer, and Sotomayor in this case.
Of the conservative justices, Roberts, especially given his tendency to try to hit some home-run majority rulings for his legacy of being a "by-the-rules" arbitrator, and his pronouncement of privacy issues as being the paramount constitutional issue would be most likely to flip with the liberals. With that said, his previous defense and work on behalf of Bork, and his theory of a lack of privacy in the Constitution does leave a bad taste.
Justice Kennedy unfortunately cannot be counted on when it comes to privacy issues. His majority opinion on Skinner v. Railway Labor Executives enumerating that the government could violate the privacy rights of railway workers by subjecting them to drug tests due to a "special needs" exemption where the Fourth Amendment could be ignored if it was deemed to be in the overriding interest of public safety is the basis of the NSA's metadata collection program---see: http://www.nationaljournal.com/nationalsecurity/how-justice-...
He's still the second most likely to flip because Scalia, Alito, and Thomas are basically lost causes. Scalia basically called a general right to privacy in the Constitution rubbish, and it's unlikely either of the three will bend their ideological bent that the "national security agencies" know best.
The votes might be there. It probably hinges on Roberts. But significant positive changes to how the American government deals with privacy issues could happen. Again, the votes might be there, which is better than never discussing the issue at all (or discussing them in dark, dank courtrooms nobody hears about).
Cause for hope goes exponentially up if one of the conservative justices retires and is replaced by a young liberal justice attuned to technology much as Kagan is. If that happens, this likely scenario becomes a most likely scenario.
Wildcard: The Supreme Court actually doesn't know anything or very much at all about technology. They still pass paper briefs among each other instead of email...a strongly written amicus brief in this situation by technology-savvy leaders could well tip the balance.
There are a few things in this post that are widely off the mark, so much so that is actually unhinges the debate.
The first is that Alito is actually far better than Roberts on privacy rights [1]. Specifically, Alito supports a mosaic theory of the 4th amendment [2] that looks at "whether the government conduct taken over time collects an amount of information that is somehow surprising or unexpected". Alito is actually one of the best hopes for progressive 4th amendment jurisprudence, yet your characterization of him is exactly the opposite!
The second is that blind deference it is not the position of Scalia (though he certainly does support deference to the executive branch when such deference is allowed by law). He is an originalist [3] who faithfully executes that algorithm when he renders his decisions. Just because you don't agree with his point of view doesn't mean he's blindly backing national security agencies. In this situation, Scalia would tell you that what is being done is allowed by law and that Congress can stop it at any time through legislation, i.e. "garbage law in, garbage decision out". He thinks, quite sensibly sometimes, that it is the executive branch's job to deal with national security issues and such issues only become his concern when they violate the law. He is a very capable, if sometimes misguided, jurist.
As to the fact that SCOTUS does not know much about technology, this is an oft argued position that has been thoroughly debunked. Judges have to make rulings on a wide range of technical issues that they are not experts on. This has always been the case, it's not a "wildcard", and the courts are well equipped to handle it. They bring in experts and requests briefs on the necessary subjects. In the last 10 years the Court has ruled on genes, encryption, complex medical procedures, etc. It's impossible for the justices to be experts on all of these. The best we can do is require the justices to be experts on the law and provide them with support from subject matter experts.
I have to admit Alito is the one justice I can't quite get a handle on.
In which case, flip Alito with Roberts, consign Scalia and Thomas to the non-hopes, and there you are.
2-I don't understand your critique, as this was exactly my point of stating: "a strongly written amicus brief in this situation by technology-savvy leaders could well tip the balance."
I think in this case Scalia strongly leans to that position. He himself said: “The consequence of that is that whether the NSA can do the stuff it’s been doing ... which used to be a question for the people ... will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed,” Scalia said.
That seems to indicate a certain degree of deferral to both legislative and executive branches in this matter.
As for garbage law in, garbage decision out, Scalia can't be counted on to rely on his own purported originalist thinking, lest we forget that the Voting Rights Act overwhelmingly re-approved by Congress had Section 4 knocked down by an opinion Scalia joined.
I'm aware of the formula, the historical boundaries upon which they were set, and how section 4 could be updated beyond relying on preclearance for historically discriminatory districts. I do acknowledge that the formula is flawed and Congress could do a better job (especially in extending protections to areas not designated historically discriminatory that might be now). However, my specific point on bringing that up is that Scalia can't be counted on to hold to his own originalist views, so I emphasized his deferral to other branches of government instead as the sticking point, as well as his general dismissal of the right to privacy. Any combination of these factors make him pretty hopeless on this case, regardless.
I made a mistake blindly sticking Alito in there, without considering his views on privacy. However, he does have a very strong deference to executive power that would place him in that bucket of deferring to national security agencies (and indeed probably drove his majority opinion on Clapper v. Amnesty).
"One troubling memo concerns domestic wiretaps - a timely topic. In the memo, which he wrote as a lawyer in the Reagan Justice Department, Judge Alito argued that the attorney general should be immune from lawsuits when he illegally wiretaps Americans."
While I have this comment thread going, I'll clarify what I meant by wildcard. I never intended to note this being a special instance for the court, but rather I wanted to emphasize how this particular forum (a hub for technology leaders) can get involved in a deep policy issue like this, and have their views be well-respected. That doesn't happen that often. It was my call to action to this forum, rather than any particular critique of the court.
I don't think its true that the supreme court doesn't understand technology. They might not buy into the ideology that technologists do, buy I think they understand the relevant facets of how it works. As I've said before, we depend on judges to arbitrate disputes related to complex insurance contracts. Technology is easy in comparison.
As for the low-tech workflow in chambers, they stick to it because it works. Email is great for dealing with a lot of information you don't read that carefully. Appellate work is the opposite of that: going over the same pair of 50 page briefs over and over or the same draft opinion a dozen times. Nothing beats paper, post its and pencils for that work flow.
That's not my opinion, it's that of Justice Kagan.
"The judges who sit on the US Supreme Court have little knowledge of Facebook, Twitter, email, or other modern capabilities, despite society's widespread use of such technology, according to Justice Elena Kagan.
“I think we’re going to have to be doing a lot of thinking about that,” she replied, adding that the judges often seek out younger clerks to assist with questions about technology. “It’s a challenge for us.”"
This is why I think there is a huge role to play for leaders in the tech field in this debate.
Well I disagree with justice Kagan. I think the Court gets the gist of what Facebook, etc, is, and I don't think there is much that is valuable about having really deep understanding of the technology.
I think technologists confuse technology with ideology. Facebook is a technology that lets your friends see messages and photos you post, like a private bulletin board. I think every Justice gets that. All the other stuff, about what sort of social role that technology should play, that's ideology and politics.
As an aside, when younger people say older people don't get technology, I think its usually a proxy for social disagreements. E.g. My mom (62) has a Facebook, and iPhone, iPad, etc. She gets how it all works. She just doesn't approve of people posting pictures of themselves in revealing outfits or airing personal business in public on Facebook, or teenagers sexting pictures on their iPhones. That's not her not understanding technology. That's her having different social views.
I do think a current justice is much more qualified to talk about how the court views and understands technology then we are...
Regardless, in this case, a well-written amicus brief from technology leaders could also shape some of the ideology that would come to play, and I think it would be respected because they would be subject experts.
It's a very cogent description of the internet as it worked in 1996. I can't read something like that, which even goes to the length of describing how the internet uses packet-switching, and conclude that judges as a group don't have a grasp of how Facebook works.
"As an aside, when younger people say older people don't get technology, I think its usually a proxy for social disagreements"
Could be, but I think to a large extent it is that older people tend to assume things that are just not true. Example: my mom asked if I would be able to communicate with her during my upcoming trip to Europe, because she was concerned that there might be "international rates" for the Internet. This is the same woman who is able to use Fedora for daily tasks and who has been using command-line ffmpeg to transcode personal videos for her various devices.
To "get technology" can mean a lot of things. It could mean knowing how to use a terminal. It could just as easily mean understanding that a desktop computer can do all the things that a TiVO can do, or that the Internet does not have any long distance fees, or that the intended use a computer is irrelevant in a conversation about the possible uses of a computer. I would not discount such poor assumptions -- hackers are repeatedly bitten in the ass by law enforcement agencies and judges who have such misconceptions.
This reminds me of my favorite anecdote in this realm. I had a close friend who, in college studied in the Beltway. He claims he was one of the interns who, at her behest, showed Congressman Clinton how one sleeps with a hooker in the back of cars in the infamous GTA series and then kills her to retake your money. Needless to say, she was not amused. [0]
Whether or not I believe the story, if I had known Congressional internships could be that fun, and I could inspire America's leaders with the great power of video games and laughter, perhaps I would have applied.
I don't think it is as simple as a liberal versus conservative. The cases you mention had specific issues (standing with Amnesty, transit safety with Skinner) and a general right to privacy is controversial (abortion) and not clearly defined. This is very different from the specific protections in the Forth Amendment and it's application to criminal evidence in particular.
It will be interesting to see what happens but I would expect a narrow decision on admissibility of evidence that says nothing about the legality of the NSA programs themselves after a long delay. Sigh...
BTW - RT is not a reliable source of information as it is a Russian propaganda operation. The linked article seems fine.
RT has an agenda just like everyone else, and accuracy is a function of that. It is quite reliable that way, but it's easier to spot the agenda than it is from the domestic propaganda sources.
While sometimes biased or inaccurate the NYT is much more reliable than RT which exists solely as a propaganda operation of the Putin administration. This is why his press secretary set it up and his government and friends fund it[1]. And regularly pushing conspiracy theories about 9/11 or global warming as well as hosting an assortment of wacko guests like Alex Jones and Lyndon LaRouche don't instill confidence in RT.
I generally agree with you on RT, but it was the first that popped up with regards to the technology quote.
I also agree that it's not as simple as liberal v conservative, but given the liberal bloc tends to vote together on issues like this---and many issues, I thought it was the easiest way to frame it. If people have more details to add, I'd be glad to have that be part of the discussion. I'm not a professional SCOTUS-tracker, and by no means claim to be one: just a hobby of mine. I wanted to start a discussion though, and hopefully some action with what I do know about the situation.
I don't know if I'd write off Scalia, he surprised me with Kyllo vs. U.S. when he wrote the 5-4 opinion that use of infrared camera to peer into a home without a warrant constituted an unreasonable search barred by the Fourth Amendment, citing Katz vs. United States, a case involving remote eavesdropping that defined a "subjective expectation of privacy."
He surprised me as well in that ruling, him and Thomas both actually. But I think they were both reading from a strict fourth amendment position of the privacy expected within a home---something that could be easily conceptualized from an originalist point of view (those legal types who always look for the exact wording of the founders).
"Scalia created a "firm but also bright" line drawn by the Fourth Amendment at the "'entrance to the house'".[1] This line is meant to protect the home from all types of warrantless surveillance and is an interpretation of what he called "the long view" of the Fourth Amendment."
Mobile apps that use GPS to track people=brain freeze.
Given his standing on Clapper v. Amnesty, I think this falls under his more general view of privacy rights...which is not great, as Scalia doesn't really acknowledge Griswold v. Connecticut when the right to privacy was first established, and he has a strong reluctance to question national security agencies on issues he doesn't seem to know very much about...
“The consequence of that is that whether the NSA can do the stuff it’s been doing ... which used to be a question for the people ... will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed,” Scalia said.
Tracking movements in public is more complicated issue, because generally when you go from place to place in public, you can not say you expected this move to be private - it can be plainly seen by anybody who happens to be in the same street as you. It is very different from what happens in your home, where you can expect nobody (outside of your household) can see you. Note I'm not advocating any legal opinion here, just saying "home" case is much more obvious thing than "tracking" case. In general, US people (by means of Congress) can also put limits on the police or the NSA beyond constitutional limits, i.e. say even if the 4th amendment did not ban GPS tracking or email intercepts, we (the US people, by means of Congress) prohibit the police or NSA from doing so without judicial warrant. Unfortunately, US people seem to be unable or unwilling to elect representatives that are interested in doing so, so the only fallback remaining is the Supreme Court, which is not really the best way to solve complex cases, as they can go either way.
This could be one of the most important rulings in history. It will define whether or not the country is actually run by the Constitution or not, as it can clearly be read.
If it goes the wrong way (as I, and anyone else with a halfway decent grasp of English, reads it), it could set the stage for a future MAJOR shift in government. That, on top of the MASSIVELY unpopular NSA surveillance of Americans, would be a clear indicator of a runaway fascist state that the majority of Americans would absolutely not support. This sets the stage for a confrontation between those in power, seeking to maintain it, versus those who no longer willingly give them that power.
I also don't buy that "whatever the Supreme Court decides is correct and just and lawful", otherwise you would not get these split decisions. It is clearly a political body, and this ruling is going to tell us quite a bit about who is pulling the strings.
Foreigner citizens have no (literally none) Fourth Amendment protection while outside the U.S. AFAIK there's no other specific provision in the Constitution (even as amended) speaking to communications privacy.
Even assuming the Fourth Amendment does apply, the "third-party doctrine" that has been applied to the Fourth Amendment since the 19th century would open up a hole for foreign surveillance large enough to drive a truck through, when applied to telecommunications. This hole was closed by Congress for telephones, pagers, cell phones and some other things, but not for email or other Internet traffic.
Even if Congress did pass a law restricting interception of Internet traffic, Congress could make exceptions to their own law... such as FISA and the FISA Amendments Act. Also, many other laws restricting the ability of government to wiretap have specific exceptions for the purpose of foreign surveillance.
It might be arguable that FISA Amendments Act goes too far in the leeway it gives regarding how to decide whether a targeted individual is a U.S. person or not, but that wouldn't substantially affect the law as implemented (and wouldn't make any of the non-Americans feel better either way).
The last paragraph mentions past convictions based on evidence where this sort of notice should have been given, but it wasn't policy to do so at the time. Is there a group out there known to deal with this sort of thing? Do the ALCU/AI/Supreme Court even have a chance before there's some retroactive fix?
Also, based on their past decisions how would the SC rule?
