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.
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?