The Illusory Promise

June 23, 2013 § Leave a comment

An Illusory Promise

In contract law an illusory promise is one conditioned on an event within the promisor’s control, but it will be enforced if  the promisor has a good faith duty to cause the event to occur.  The surveillance program is conducted in secret, so public exposure is not available to insure its propriety.  It is conducted without the involvement of any adversary, so there is no challenger to test the claims of its administrators.  When the life of the FISA court was extended for another seven years in December, 2011, the Chair of the Senate Intelligence Committee, charged with oversight over the activities of the surveillance program, successfully warded off all efforts to add amendments requiring some public exposure of the court’s actions.

The only significant reason for believing that the surveillance program is being conducted legally and properly is the  “good faith” and integrity of its administrators.   I respectfully submit that this has historically proved to be a thin reed indeed to support confidence in government, especially concerning government threats to the life and liberty of its citizens.

Recent Hearings

During lengthy hearings before committees of both houses of Congress last week, those in charge of NSA’s anti-terrorism surveillance programs assured us they are subject to strict oversight by both the FISA court and Congressional committees.  They insisted that oversight as well as the laws governing their actions insure that our suspicions and fears are unfounded and based on misunderstanding.

I watched some of that testimony.  What impressed me was the extent to which the witnesses and their fawning admirers,  who lobbed softball questions at them during pauses in expressions of appreciation for their selfless and valuable service to our nation, assumed that we, the potential targets of this surveillance, are so naive that we will believe fairy tales, regardless of how improbable, if they are narrated with solemnity by serious looking men.   Oh, and by the way, those fawning admirers?  They were the committee members who are the overseers we trust to protect us from the zeal of those witnesses.

As I listened, I could only fantasize about the kind of cross-examination that would have been so interesting.   Here are some examples:

The Inerrant Bureaucracy

50 USC section 1881a provides that the government:

“(1) may not intentionally target any person known at the time of acquisition to be located in the United States;
(2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;
(3) may not intentionally target a United States person reasonably believed to be located outside the United States;
(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and
(5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States. ”

(emphasis added)  [There is an online reference book containing all of the statutes and executive orders relevant to the NSA surveillance program.  It is too lengthy to link to.  Do a Google search “IC Legal Reference Book 2012”]

At the hearing before the House Committee, one of the government agents testified that if anyone involved in the “targeting” authorized by this law violated its terms, the AG’s office was obligated to report the violation to the FISA court.  He then stated that, in the more than eleven years of history with this process, there had been not one instance of “intentional misconduct” (his words).

I considered that to be the kind of statement that would prompt any competent lawyer to ask a few questions.  After all, we are talking about tens of thousands of people, both government employees and employees of private contractors.  Keep in mind that only a few days before the hearing, Edward Snowden offered a video taped statement in which he said that he was able to access information about people living in the U.S..  He also said that accessing information about persons living in the U.S. was done routinely.   If that is true, then the testimony of the government witness was plainly false.  I have posted a link to Snowden’s video taped statement before.  Here is another link to it  Snowden.

In later testimony, government agents testified that Snowden was lying about his access to domestic information, although he was a system administrator with a high security clearance.  I waited for someone to ask if the FISA  court was notified when he confessed to what certainly sounded like a violation of the statute.  But no one asked that question.

In fact, the whole performance of the government agents and their pansy interrogators made clear the fact that the word “intentionally” has been given a very broad interpretation.  The concept of “circumstantial evidence” was apparently unknown to those in charge of applying this law.  If millions of American residents were surveilled, they were victims of “inadvertent” or “incidental” surveillance, not “intentional” surveillance.  The usual way to prove an intention is to assemble the circumstances that make it more probable than not that the intention was present.  The stupidist way to establish an illegal intention is to ask a person if he was illegally motivated to do or not do something.

I included a link in my “Prism of Work” essay to Senator Ron Wyden’s speech.  He described how he and another Senator had been trying to obtain information about how many American residents had been the  objects of these surveillance programs.  The one in charge of the program had refused to disclose any information about that subject.  So much for the “oversight” by the Senate Intelligence Committee, of which Senator Wyden was a member.

A  major part of the surveillance program is based on telephonic or internet communication.  So, when  a foreign resident  is targeted, all those with whom he communicates become proper targets, regardless of their location.  I know the program is called a “foreign intelligence” program but it seems obvious to me that a major objective is to locate any terrorist or potential terrorist in the United States.   We are more worried about bombs located here at home than bombs located in Somalia.

Despite this obvious fact, when information about the surveillance program is dispensed by the government we are always assured that we have nothing to fear because the program is limited to people living in other countries; that information about American residents is acquired only “inadvertently” or “accidentally” or “incidentally”.  This constant effort to deflect attention away from how the program actually works both insults our intelligence and undermines our confidence that the government is telling us the truth about what they are doing.

This is the kind of transparently misleading hokum that cross-examination is designed to expose.  I heard none of it from the Congressional Committee members during the parts of the hearing I watched.

The Friendly Court

The idea of judicial review is embedded deep in the structure of American law.  Because federal judges are appointed for life, we generally, if not always wisely, assume they are insulated from the political volatility that forces elected officials to tailor their judgments to fit the passions, and some times the ignorance,  of their constituents.  Also, we expect judges to avoid close relationships with litigants whose rights they determine.  These principles, together with the adversary system of litigation, has earned a significant degree of respect for our legal system.

The legal structure of the government surveillance program tries to claim these sources of trust without the systemic bases that underlie that trust.  It is true that the FISA court is presided over by a federal judge.  I do not know how often the judge is replaced by another federal judge but, again without knowing, I assume that the staff of the FISA court does not change when a new judge assumes that job.

The reason I make that assumption is that, because the decisions and orders of the FISA court are not published and, thus, cannot be cited in other cases, the only way for any kind of predictability to attach to a new decision by the FISA court would be the development over time of experience with key staff members.

At the hearing discussed above, I learned how the process works.  When a request for a FISA order is planned, a “read ahead” version is submitted to the court.  Then the court staff and the AG’s staff negotiate the version that becomes the “official” request.  This explanation was offered for the fact that, during the 33 years of the FISA court’s existence, 33,900 requests have been submitted.  Eleven were denied.  See FISA denials

That’s quite a record of success.  Without being too modest, I believe I could have a similar win/loss record if, like the AG lawyers, I could submit all of my  petitions to a federal judge in a closed-door ex parte proceeding   (no adversary present) after being assured by the Judge’s law clerk that the judge  would grant the petition.  That process is not litigation, it’s a collaboration.


The only oversight that is likely to restrain the NSA surveillance program is taking place right now.  It results from the disclosures of Edward Snowden and the storm of publicity that has accompanied those disclosures.  Once again, the First Amendment has proved to be the best, and often the only, protection we have from over zealous and intrusive government policies and actions.  Neither the Congress nor the FISA court has demonstrated ability or inclination to impose limits on the sweep and power of this rapidly expanding  government accumulation of information about everyone living in this country.

I write this because it is a fact.  I do not intend to vouch for the integrity of Edward Snowden.   The government is eagerly demonizing him and has issued a “provisional” warrant for this arrest for espionage and other serious crimes.  I have not seen any evidence that he intended or intends to disclose information in order to aid America’s enemies.  If he intended to do that, I don’t understand why he didn’t keep to  himself the information so that it would be valuable to Alqaeda or some other terrorist organization.  I know only what has been reported in the press, so I make no judgment about him.

He is not the first person to disclose unauthorized information about the surveillance program.  William Binny did so  a couple of years ago, but that did not create as big a stir as Snowden has managed to accomplish.  I posted a link to Binny’s video statement in a previous post.

I am glad that, at last, we are engaged in an open debate about these issues.  Our vaunted oversight mechanism did not expose the Bush-Chaney-Rumsfeld illegal wire-tapping without a warrant program until it had been in operation for about four years.  So, I think it is high time we became aware of what has been happening to our country.

The Psychology of Zeal

Out criminal justice system has a long history of overzealous police, DEA agents, Texas Rangers, Deputy Sheriffs and others who brutalized people to force confessions of crimes.  After decades of this abuse and judicial finger-wagging, but ineffective judicial commentary about it, the Warren Court finally ruled that evidence of an involuntary confession was inadmissible in a criminal trial (Miranda v. Arizona) and evidence obtained by a search tainted by such evidence was also inadmissible (Mapp v. Ohio).  

Although the salutary effect of those two landmark decisions has been eroded by subsequent court rulings, they are still the law and they have had a huge impact on the way criminal laws are enforced in America.

In order to understand why they have had that effect, it is necessary to understand something about the motivation that causes law enforcers to become lawless thugs.  I recognize that human motivation is incapable of neat and simple labeling.   No one acts from a single motive and motives are never divorced from the life experiences of the actor.  But, despite this complexity, I think it is reasonable to believe that much of the lawless brutality that occurred before Miranda and Mapp resulted from the fact that a criminal investigation begins with a law enforcer encountering the victim or victims of a crime.  This experience, repeated over and over during as part of the routine work of law enforcement, creates a sense of outrage and contempt for those thought to be responsible for such tragedies.

So, thus motivated, the typical law enforcer is determined to see that the criminal responsible for the crime is convicted and punished, even if that requires inattention to the  Constitution, brutalizing a suspect and some less than truthful testimony at a trial.

What Miranda  and Mapp and their progeny did was turn this motivation scenario on its head.  After those decisions had time to sink into the consciousness of American law enforcement, the kind of lawless behavior that previously rewarded the cop with a satisfying conviction, now frustrated him with an acquittal when the tainted evidence was disregarded and excluded.  This accomplished what decades of lecturing, training and occasional public outcry had been unable to effect.

What we are now faced with is a new version of this old movie.   Those in charge of administering the surveillance program live in fear of another 9/11 or worse.  Their fear is not of being a victim of such an event.  Their fear is being responsible for it because of a failure to identify a threat before it can be carried out.  It is much easier for them to ignore the rules because everything about their actions is shrouded in secrecy.   I know that government agents have testified that the activities of the surveillers is regularly audited, but is it credible that the key strokes of thousands of employees are, or can be audited?  I think not.  Their assurances of oversight are discussed earlier.

I believe the same kind of motivational zeal that led to the abuses in our criminal justice system are present in this surveillance program.  My problem is that I don’t believe that the kind of solution that proved effective to improve the criminal justice system will work with the surveillance program.  No one will be willing to allow a terrorist to  harm Americans when there is available evidence that could prevent it, regardless of how illegally that evidence was acquired.

That is the reason that I see only one way to protect ourselves from this surveillance threat to our liberty.  The metadata base must be destroyed and not allowed to be rebuilt.  That may or may not increase the likelihood of another 9/11 attack.  If we are not willing to take that risk, then we must be willing to live in a police state that will become more and more powerful as technology and cumulative databases extend their reach into our lives.

A Final Comment

I know this rant has gone on too long, but I have just one more thing I need to get off my chest.

Every time I see some government agent or politician defending the surveillance program, particularly the part that has allowed the government to acquire metadata containing every single telephone number of every person and business in America, they always make a big deal about the fact that the data does not include the name or any other “personal”  information about anyone.

I suppose they expect us to believe that any analyst with more than a third grade education and knowledge of how to turn on a laptop computer very well knows that, if he or she has a telephone number, he or she can do a Google search:  “telephone 713-***-****”  and the screen will be filled with information about the person whose telephone number that is.   Try it with your own telephone number

Also, there are several free programs that can be downloaded and installed on your computer that will allow a “reverse” telephone number search as well as offer access to a map locating the telephone location and other data.   I use one called “Argali”.   And, for a small fee, you can use the telephone number to get all the public record information about anybody.

Among my other irritations about this surveillance program is the fact that its defenders assume that we are idiots.


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