June 1, 2014 § Leave a comment
If you dig pop music, you should check out the 2014 Rock and Roll Induction Ceremony. I watched the first hour or so last night and plan to watch the rest today. It is playing and re-playing all day on HBOSIG. That’s Channel 808 on AT&T Uverse. I don’t know about Comcast. The segment on Peter Gabriel is great and the singers substituting for Linda Ronstadt are wonderful. (Emma Lou Harris; Cheryl Crow, Bonnie Rait and a couple of others whose names I didn’t get). You can see KISS: four old guys without makeup talking and looking like refugees from the Rotary Club. But, they managed to produce some of the wildest, craziest entertainment ever seen. I’m not sure it was music but gazillion people all over the world got off to it.
On a more serious note: I hope you watched Brian Williams’ interview of Edward Snowden. You can watch it as well as an hour of panel discussion about it online at CBS news.com. My reaction was that Snowden appeared more believable than the spokesmen for the NSA,
Finally, here is my favorite example of white soul music: Bonnie Rait .
January 6, 2014 § Leave a comment
Two federal district judges, within the past two weeks, have rendered squarely opposing decisions concerning the constitutionality of NSA’s collection of metadata. That metadata, accumulated continuously since 2006, consists of the daily acquisition of the following information from all major carriers of telephonic communication within the United States: The time, date and duration of every telephone call made within, to or from any telephone in the U.S.; the length of the call; the telephone numbers of the source and destination of the call; and the transmission tower which transmitted the call (thus identifying the physical location near where the call was made). This metadata is held in NSA databanks, where it is retained for five years.
In the following post I will write about these two decisions, my opinions of them and what I perceive as serious implications from their rulings for the future of our country.
One reason lawyers’ writing fails to command the attention of ordinary readers is that they don’t think like ordinary people. Lawyers, like me, try to reason toward a conclusion by first stating the bases that lead to it. After setting out those bases, the lawyer triumphantly announces the conclusion.
Newspaper reporters and writers, who write for a living, call this “burying the lead”. The idea is not to bore the reader with long descriptions of facts, events and opinions before disclosing the purpose of the piece.
This is an effort to avoid that pitfall.
The two court decisions discussed below involve some very important legal issues that significantly affect the relationship between all of us and government, both federal, state and local:
In this digital age, our communication capability depends on use of third-party facilities that relay the expression of our thoughts about everything in our lives: Satellites, telephone towers and switch complexes, coaxial cables, and an array of other “hubs” that pick up the signals we emit from our phones, Ipads and computers and send them on their way to specific or general destinations chosen by us. When property law is applied to those processes, the result is that we transfer ownership of our thoughts to those “hubs” when we tap screens or buttons on our communication devices. So, when government wants to know what we are up to, it doesn’t have to involve us or even make us aware of its curiosity. It can go to the “hubs” and intercept all the information it wants.
An ancillary legal result of this the legal principle declares that if we share information about ourselves with a third party, we can no longer claim that it is private, not available for the scrutiny of others. This idea that allowing one peep from one person entitles the world to peep is, fortunately, subject to an important exception: If society reasonably believes that, regardless of having involved a third party in the transmission of our information, it should nevertheless be private and unavailable to unauthorized disclosure, then the Fourth Amendment imposes restrictions of government’s right to access it.
The Supreme Court has grappled with these principles for decades. One case involved a policeman, sans warrant, sticking a tape recorder to the side of a telephone booth and recording Mr. Katz’s end of a telephone conversation. The Court held this violated the Fourth Amendment. In another case, again warrant-less, police went to the telephone company switch room and attached a pen register that recorded every telephone number dialed by Mr. Smith for a period of thirteen days. The Court decided that this did not violate the Fourth Amendment because Mr. Smith was presumed to know that the numbers he dialed were recorded by the telephone company. Why? Because every month he received a bill that listed those numbers. So, five members of the Court ruled that he should have known that the government might have access to that information.
We now know, thanks to Edward Snowden that, since 2006, NSA has obtained, from all domestic telephone carriers, copies of every telephone call made to or from every telephone in the United States and has retained a database consisting of that information for the past five years. This has been done without any warrant claiming any of the callers were guilty of any wrongdoing. The accumulation of this information has been done pursuant to orders of the FISA court, but the only justification for securing those orders has been a showing that the information was relevant to the effort to thwart terrorism.
The two federal district court cases discussed in the following essay represent two opposing views of the above mentioned legal principles and their proper application to this metadata acquisition and accumulation. If the Supreme Court ultimately decides that we are like Mr. Smith, then any government agency can track all of our communications, telephonic or otherwise, if they involve third party hubs. They won’t be able to listen to our conversations but they will be able to know whom we communicated with and who communicated with us, when, for how long and where we were when the communication occurred.
If they decide, as Judge Leon did in the Klayman case, that we did not reasonable anticipate, when me engaged in digital communication for the past five years, that the government would be tracking each of those communications and maintaining a record of them available for future access, then the Fourth Amendment will protect us. If they agree with Judge Paulley’s decision in the A.C.L.U. case, the Fourth Amendment will be inapplicable.
I believe this is a turning point in this experiment of ours: How to balance freedom and security in a democracy. If the Fourth Amendment allows the federal government to do what NSA has done, that same Fourth Amendment is the only barrier to the same kind of surveillance by state and local government agencies. Everyone wants to be protected from a terrorist bomb. I believe too little attention is being paid to the danger of NSA type surveillance by the Ted Cruz administration or by some rural county sheriff targeting political enemies or by the DEA waging the “war on drugs”.
So, here is my “lead”. If you are interested in how two federal district judges have reacted to these issues, read on.
The Judges and the Parties
Judge Richard Leon was a classmate of later-to-be Supreme Court Justice Clarence Thomas. He was appointed to be a federal district judge in the D.C. Circuit by President George Bush.
Judge William Pauley III was appointed to be a federal district judge in the Southern District of New York by President Bill Clinton.
Larry Klayman is counsel for the plaintiffs in the Klayman case. Ignoring the time-honored maxim that a lawyer representing himself has a fool for a client, Klayman is both counsel and one of five plaintiffs in the case. His career exemplifies the reason lawyers have a bad reputation: In 1988, he sued his mother for $50,000, seeking reimbursement for medical expenses incurred on behalf of his grandmother. His brother reported this to Newsweek and, when it published the information, Larry Klayman blamed the Clinton White House, with which he had been feuding. Two different federal judges, one in California and one in New York, banned him from appearing in their court because of his misbehavior. The Florida Bar Association publicly reprimanded him for mishandling a suit for a client. He has filed numerous suits against government agencies. He sued Rachel Maddow for defamation. The case was dismissed and he was ordered to pay several thousand dollars to reimburse her for defending the groundless suit. This is only part of a Wikipedia description of this lawyer. Unfortunately, he is in charge of an important lawsuit.
The other named plaintiff, Charles Strange, is the father of a former NSA employee who was killed in a Seal Team operation. His apparent motivation for this litigation is based on his belief that NSA was responsible for his son’s death. Judge Leon dismissed the claims made by the remaining three plaintiffs because they were not subscribers to any telephone carrier. There is no apparent explanation for Klayman choosing himself, Mr. Strange and three others who did not subscribe to telephone service as plaintiffs seeking relief in federal court for the government’s misuse of telephone service. Surely, of the more than 250 million telephone subscribers in America, there were other more appropriate plaintiffs. But, who am I to argue with success?
Klayman intends to expand his suit as a class action. Judge Leon has made no ruling on that application. One issue will be whether Klayman and Strange are appropriate representatives of what will surely be a very large class or telephone users. That may prove to be an interesting issue.
The Klayman Decision
Having expressed my opinion, in several thousand words, of the NSA’s metadata accumulation, I assume it is obvious that I agree with Judge Leon and disagree with Judge Pauley. So, I am certainly biased. But, if you read even a part of Judge Leon’s opinion, I think you will see that he has crafted a creative opinion, dealing fully with the counter arguments he anticipates and carefully declining to rule on issues unnecessary to his conclusion.
The Standing Issue
Federal courts have limited jurisdiction. Before they can render a judgment, they must have before them a “case or controversy”. This has been construed to mean that the party seeking relief must prove that he or she has sustained or will sustain a violation of some legal right if relief is not granted.
Before the Snowden disclosures, this was a serious barrier to obtaining judicial review of NSA’s surveillance practices. Secrecy prevented people from knowing the government had acquired information about their telephone subscriptions. So, they could not establish standing to challenge the activity. When documents disclosed by Snowden revealed that NSA maintained metadata consisting of every telephone number of every telephone used in the U.S., any telephone subscriber acquired at least an arguably valid claim of standing to challenge that NSA practice.
Once that threshold was breached, the issue became: Did the NSA’s acquisition of the information violate any right?
The ultimate outcome of the conflict between the Klayman case and the Clapper case depends on whether NSA’s collection of data about a telephone number without any claim that the subscriber has violated any law or regulation violates the subscriber’s rights.
Judge Leon’s Careful Limits on The Scope of His Decision
The judge wisely disclaims any opinion about the broad accumulation of internet, email and social media data in the program called “Prism”. He agreed that plaintiffs’ claims of injury because of that program were too vague and speculative to qualify for standing. Thus, he seeks to avoid conflict with the Supreme Court decision in Clapper v.Amnesty Int’l, wherein the Court held that Amnesty’s fears that their overseas telephone calls to clients and others would be intercepted by NSA were too speculative to qualify for standing to bring suit.
During oral argument Judge Leon asked Larry Klayman whether he had any evidence that the government had accessed any of his or Charles Strange’s online activity. Klayman responded, “I think they are messing with me.” Not surprisingly, the Judge decided this fell short of establishing standing to complain of government’s monitoring of internet traffic. In addition, Judge Leon’s opinion cites two statements by NSA that the process of wholesale accumulation of email and internet metadata was discontinued in 2011. [Page 4, footnote 6] Thus, the injunctive relief sought by the plaintiffs would be moot.
The Admiinistrative Procedure Act Claims
The plaintiffs alleged that NSA and the FISA court exceeded the authority granted by Congress when they ordered the acquisition of the telephonic metadata. The APA contains a broad grant of jurisdiction to federal courts to hear such claims.
Judge Leon ruled against the plaintiffs and included a lengthy analysis of the issue in his opinion. As construed by previous decisions, the general grant of jurisdiction in the APA is subject to an exception: If Congress has declared, or at least plainly implied, by other legislation, that challenges to the authority of a particular federal agency must be made according to a procedure specifically designed for making such challenges, that procedure must be followed and the general sweep of the APA procedure is inapplicable. Because the law creating the FISA court includes specific procedures for challenging its rulings, Judge Leon rules that the general grant of jurisdiction in the APA does not apply. He therefore denies all claims made by the plaintiffs based on the APA.
The Non-Subscriber Plaintiffs
As stated earlier, for reasons best known to him, Larry Klayman picked three of his plaintiffs from the relatively small number of Americans who have no telephone service. So, Judge Leon dismissed their claims because they had no basis for complaining about the government’s acquisition of telephone information..
To summarize, he limits his ruling to the accumulation and analysis of telephonic metadata. He bases his decision solely on the 4th Amendment, disclaiming any opinion about conflict with the 1st Amendment.
The Fourth Amendment Claims
The Statutory Basis For Government’s Acquisition and Use of Telephone Metadata
50 U.S.C. 1861, a part of the Patriot Act, has been construed to authorize the FBI to file an ex parte application in the FISA court seeking the right to seize and copy “call detail records” of all telephone calls made to and from telephones located in the U.S.. The application must include a “statement of facts showing that there are reasonable ground to believe that the tangible things sought are relevant to an authorized investigation. . .to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” quoted at page 11 [emphasis added]
As a result of Snowden’s disclosures, made though The Guardian, we now know that these applications have been filed and granted for the past seven years. Based on them, the NSA has required all domestic telephone carrier companies to forward to NSA each day, call detail records of every telephone call made within the U.S..
Here is a description of a “call detail record” taken from Judge Leon’s opinion, quoting from a FISA order disclosed by Snowden and acknowledged to be authentic by the government: “For purposes of this Order ‘telephony metadata’ includes comprehensive communications routing information, including but not limited to session identifying information(e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, Internationsl Mobile Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call.” [page 15, footnote 16]
Based on FISA orders like the one just quoted, NSA has a five-year database containing that information obtained from all carriers
The Way NSA Accesses and Uses Its Five-Year Accumulation of Metadata
Judge Leon accepts the Government’s own description of its use of its metadata. The process starts with a ‘seed”, described as a telephone number originating with a person of whom NSA has a “reasonable, articulable suspicion” (RAS) as being somehow connected with a foreign terrorist organization. When the seed has been identified, the seed’s telephone number is used as a starting point for identifying others with whom the seed has been in contact.
Here is Judge Leon’s description of this process:
“In plain English,h this mean that if a search starts with a telephone number (123)456-7890 the first “hop” will include all the telephone numbers the “seed” has called or received calls from in the last five years (say, 100 numbers),the second hop will include all the telephone numbers that each of those 100 numbers has called or received calls from in the last five years (say 100 numbers for each of the “first hop” numbers” or 10,000 total), and the third hop will include all the phone numbers that each of those 10,000 numbers has called or received calls from in the past five years (say,100 calls for each of the “second hop” numbers or 1,000,000 total).” He concludes “. . . it is likely that the quantity of phone numbers captured in any given query would be very large.”. [Opinion page 18]
For more of the Judge’s analysis see footnote 21 at page 19 of the decision. The Judge remarks that the NSA spokeswoman who sought to trivialize the number of telephone numbers typically accessed in response to a RAS was guilty of a “glaring understatement” and that her assurance that the total number of telephone numbers analyzed based on a “seed” was a “small percentage” was “virtually meaningless when placed in context.” Judge Leon observed that, if one of the telephone numbers used to identify the “seed”‘s contact happened to be a Domino’s Pizza, the result would be expanded dramatically.
Here is Judge Leon’s description of NSA’s analysis process after the “three hop” search has created a new sub-group of telephone numbers:
““Once a query is conducted and it returns a universe of responsive records (i.e., a universe limited to records of communications within three hops from the seed), trained NSA analysts may then perform new searches and otherwise perform intelligence analysis within that universe of data without using RAS-approved search terms. [citation omitted] According to the Government, following the ‘chains of communication’ – which, for chains that cross different communications networks, is only possible if the metadata is aggregated – allows the analyst to discover information that may not be readily ascertainable through other, targeted intelligence-gathering techniques. [citation omitted] For example, the query might reveal that a seed telephone number has been in contact with a previously unknown U.S. telephone number – i.e., on the first hop. [citation omitted] And from there, ‘contact-chaining’ out to the second and third hops to examine the contacts made by that telephone number may reveal a contact with other telephone numbers already known to the Government to be associate with a foreign terrorist organization.” [Opinion, page 20]
Fourth Amendment Claims Not Precluded
As discussed earlier, Judge Leon ruled that Plaintiffs’ claims based on the APA were precluded by the Congress’s appeal procedure from actions by the FISA court. He distinguished that from preclusion of constitutional claims based on the Fourth Amendment. Citing Supreme Court precedent, he wrote that denying the right to bring a constitutional claim in federal court required a significantly more explicit expression of intent by Congress than required for precluding statutory claims. Here is his analysis:
““The presumption that judicial review of constitutional claims is available in federal district courts is a strong one [citation omitted] and if the . . . heightened standard is to mean anything, it is that Congress’s intent to preclude review of constitutional claims must be much clearer than that sufficient to who implied preclusion of statutory claims. Where, as here, core individual constitutional rights are implicated by Government action, Congress should not be able to cut off a citizen’s right to judicial review of that Government action simply because it intended for the conduct to remain secret by operation of the design of its statutory scheme. While Congress has great latitude to create statutory schemes like FISA, it may not hang a cloak of secrecy over the Constitution.” [Opinion, page 35][emphasis added]
The Plaintiff’s Claims That Their Telephone Numbers Were Accessed and Analyzed Are Not Speculative
Judge Leon rejected NSA’s contention that the Plaintiffs’ claims were speculative because they could not prove their particular telephone numbers had been accessed and analyzed. He caught the government simultaneously arguing that, to be effective in combating terrorism, it had to have access to all telephone numbers; then contending that the Plaintiff’s telephone numbers may not have been accessed or analyzed. His demolition of this twisted logic is a pleasure to read. Here is a footnote that is a classic piece of lawyering: Cutting through complexity with easily understood analogy.
““The difference between querying a phone number belonging to a domestic Verizon subscriber (for which metadata has been collected) and querying a foreign number (for which metadata has not been collected) might be analogized as follows: A query that begins with a domestic U.S. phone number is like entering a library and looking to find all of the sources that are cited in Battle Cry of Freedom by James M. McPherson (Oxford University Press 1988). You find that specific book, open it, and there they are. ‘Hop one’ is complete. Then, you want to find all the sources cited within each of those sources (‘hop two’), and so on. At the end of a very long day, you have looked only at books, articles, etc. that were linked to Battle Cry of Freedom.
“Querying a foreign phone number is like entering a library and trying to find every book that cites Battle Cry of Freedom as a source. It might be referenced in a thousand books. It might be in just ten. It could be zero. The only way to know is to check every book. At the end of a very long month, you are left with ‘hop one’ results (those books that cite Battle Cry of Freedom), but to get there, you had to open every book in the library.” [Opinion, page 40, footnote 18]”
It seems to me that Judge Leon has effectively ended any argument about whether any U.S. telephone subscriber’s telephone number, including information related to that telephone number, has been acquired, accessed and analyzed by the Government. The “speculative” defense has, I think, been destroyed.
The Right of Privacy, the Fourth Amendment and Smith v. Maryland
The last twenty-five pages of Judge Leon’s opinion, (pages 43-68), are an essay on the impact of modern technology on the appropriate legal analysis of Fourth Amendment rights. He begins with a discussion of Smith v. Maryland, the Supreme Court case that is relied upon by all defenders of NSA’s metadata program. That case, decided in 1979, involved a robbery victim who, after the robbery, received threatening phone calls she associated with the robbery. When she complained to the police, they arranged with the telephone company to attach a pen register to the telephone line belonging to Smith, a suspect in the robbery. They did so without a warrant or a court order. The pen register disclosed that, during the thirteen days it was attached to Smith’s phone line, a call was made to the victim’s home. That became a key piece of evidence leading to Smith’s conviction.
Judge Leon cites abundant evidence that the technology at issue here is dramatically different from the brief pen register attachment in Smith. Without attempting to summarize all of his reasoning, suffice to say that he argues that applying the Court’s reasoning in Smith to the NSA’s surveillance program is like comparing traffic safety regulations designed for horse and buggy traffic to those appropriate for modern freeway driving.
The standard applied by the five Justices who wrote the opinion in Smith was the one announced in an earlier case, Katz v. U.S., which held that attaching a listening device to a phone booth and recording a conversation by a caller violated the Fourth Amendment. There the Court, following earlier precedent, ruled that the Fourth Amendment protected a right of privacy reasonably assumed to exist by society. The Court ruled that, because Smith, as a telephone subscriber, knew his telephone calls were recorded by the telephone company in order to prepare his bill, he had no reasonable expectation that the telephone numbers he called were kept private.
Judge Leon contends that these decisions are wildly in-apposite to a belief that the average American telephone user assumes that the government is maintaining and has maintained a giant database consisting of every telephone number of every call they make and of every call made to them; that this data is retained, accessed and analyzed by the government for five years .
The Judge cites other Supreme Court decisions which, to me, are more pertinent to the issue. For example, in one decision, the Supreme Court held that the Fourth Amendment was not violated when the police attached a short range tracking device to a suspect’s car and used it to track him on one occasion. The Court held that, when we drive about, we have no expectation that our movements may not be observed by others. In another case, however, the Court held that the Fourth Amendment was violated when the police attached a long range beeper to a suspect’s car and used it to track his movements for a month.
The NSA’s Collection of Metadata is Unreasonable
In the concluding part of his opinion, Judge Leon responds to the Government’s claim that the acquisition and retention of its metadata was and is necessary because seeking judicial approval would take too long. He wrote that NSA cited three instances where they used the metadata in apprehending an alleged terrorist. In all three, the metadata was accessed after the suspected terrorist had been identified using other conventional means. The metadata was used either to find another participant in a plot or to confirm information already known. In none of the examples cited by NSA was speed a factor.
American Civil Liberties Union v. Clapper
In this case Judge Paulley discusses and considers each issue ruled upon by Judge Leon. He agrees that A.C.L.U has standing because of the disclosures made by Snowden. He agrees with Judge Leon that A.C.L.U.’s claims based on the Admiinistrative Procedure Act fail for the same reasons cited by Judge Leon.
He disagrees with Judge Leon’s bases for distinguishing Smith v. Maryland. He contends that, while telephonic usage and technology have dramatically changed, a telephone is still a telephone. For Judge Pauley, when the Supreme Court decided that a pen register could be attached to Mr. Smith’s telephone without a warrant, that settled the issue: One telephone or 300 million telephones, thirteen days or five years, Judge Pauley can’t see any difference.
He discusses the possibility that NSA might utilize a database of 300 million telephone calls over a five-year period to look for some patterns of behavior that might involve more prying into the lives of innocent citizens than was possible when the government attached a pen register to a single telephone line. Here is how he dismisses such fears:
““. . . , without resort to additional techniques, the Government does not know who any of the telephone numbers belong to. In other words, all the Government sees is that telephone number A called telephone number B. It does not know who subscribes to telephone numbers A or B. Further, the Government repudiates any notion that it conducts the type of data mining the ACLU warns about its parade of horribles.” [Opinion, page 41] He buttresses his confidence on this point by citing this reassurance from General Alexander:
“General Alexander’s testimony on this point is crystal clear: ‘]I]n the open press there’s this discussion about pattern analysis on this. That is absolutely incorrect. We are not authorized to go into the data, nor are we data mining, or doing anything with the data other than those queries that we discuss, period. We’re not authorized to do it. We aren’t doing it. There are no automated processes running in the background pulling together data trying to figure our networks. . . . The only time you can do pattern analysis is, once you start the query on that query and where you go forward.’ Alexander Testimony at 66”
This exemplifies Judge Paulley’s entire approach to the case: He accepts without any hint of skepticism every reassuring statement from NSA witnesses. Here is an example that he includes in his opinion. I think this is dishonest because he cites and discuses Judge Leon’s opinion and therefore is bound to know how misleading these numbers are.
“Because each query obtains information for contact numbers up to three hops out from the seed, the total number of responsive records was ‘substantially larger than 300, but. . ..still a very small percentage of the total volume of metadata records.’ [quoting an NSA declaration ] Between May 2006 and May 2009,the NSA provided the FBI and other agencies with 277 reports containing approximately 2,900 telephone numbers. [citation of NSA declaration omitted]” [Opinion, page 12]”
Without the information in Judge Leon’s opinion, we might conclude that we are all exaggerating the importance of this argument. 2,900 telephone numbers doesn’t look like much of a trove of data. It also conceals what NSA actually does.
Judge Paulley discusses the automobile tracker cases cited by Judge Leon. He argues, however, that the decision finding that a Fourth Amendment violation had occurred was based on the fact that the device left on the suspect’s car for a month was placed there in a way that caused the Court to equate it with an actual intrusion into the car. That does not comport with the quotation from the second decision quoted in Judge Leon’s opinion. See Judge Leon’s opinion, pages 46-47.
These two federal district court decisions neatly contrast the nature of the debate in progress in our nation. Like any debate, the statement of the issue is important. I believe a fair version of the issue is:
What is the most serious and fundamental threat we face: Bombs from a foreign terrorist or our government’s effort to protect us?
I contend the answer is “our government’s effort to protect us”. My contention is based on my understanding of history. It seems to me that ceding power to government is always an irreversible transaction. Once acquired, power is never relinquished. I fear this NSA surveillance because it is power given to an agency that operates in secrecy; whose operational purpose, spying, is one that succeeds by lying and deception. Everything about it is anathema to the safeguards of a legal system and a Constitution that has force only if enforceable in court.
Even if we trust the present managers of these powers, allowing the creation of such potentially damaging weapons will serve as a temptation for abuse for countless generations. Already, local police chiefs and county sheriffs are clamoring for access to this gigantic mass of information about every person in this country. Are we so naive as to think that information will not sooner or later be used to punish political enemies or to crush unpopular dissent?
LIke all my fellow Americans, I am waiting with a mixture of hope and apprehension for the decision of President Obama concerning the proper limits of these surveillance programs. I hope his background as a constitutional law professor will give him courage to accept the risk that ,if he reins in NSA and a terrorist bomb explodes during his presidency, he will be blamed.
I will be watching and hoping.
November 14, 2013 § Leave a comment
I recently posted a suggestion that NSA’s surveillance extravaganza might be rendered less intrusive by imposing a modified version of the “exclusionary rule” now applicable to criminal proceedings.[See The Surveillance Debate] I was trying to propose something with some chance of acceptance by Congress and some limit on government’s ability to monitor every detail of every citizen’s private life.
The Bob and Mike Show
After publishing those ideas, I watched an episode of “Face The Nation” in which Mike Rogers, chairman of the House Intelligence Committee appeared. Bob Shieffer, the host, allowed him to claim, without interruption or questions, that Edward Snowden was sharing with the Russian government all of the information he acquired as a contract employee of the NSA; that Snowden’s disclosures had endangered the lives of American soldiers in Afghanistan; that Al Qaeda is rapidly growing in strength; that unwise limits on intelligence gathering led to WWII [Huh? Say what?]; that fifteen thousand people lost their lives due to Al Qaeda; that he thought Snowden should return to the U.S. and “own up” to his guilt.
I am not making this up. This veteran Congressman and this veteran journalist teamed up to dump this mind-boggling garbage into millions of TV sets watched by countless viewers unaware they were being fed Rush Limbaugh style lies and speculative fairy dust. You can watch this performance by clicking here”
Keep in mind that Rogers is one of the two people who head Congressional committees chosen as official watchdogs to be sure NSA is not unwisely or illegally invading our privacy. The other is Diane Feinstein, chair of the Senate Intelligence Committee who, while not as unconcerned with the truth as Rogers, shares his enthusiasm for the surveillance program she is supposed to oversee.
The other news item that made me reconsider my suggestions involved the Director of the NSA, James Clapper. Director Clapper recently testified before the Senate Intelligence Committee. Senator Wyden, a member of the Committee, asked him if NSA was acquiring information about Americans. [American intelligence agencies are traditionally and legally supposed to devote their efforts to foreign sources, not domestic sources of information.] Clapper lied and said, “No.” Again, you can watch his perjured testimony as well as his later squirming confession in this clip:
Why The “Exclusionary Rule” Won’t Solve The Problem
I realized that my “exclusionary rule” suggestion will not work for several reasons. First,the “exclusionary rule”, works because it applies to activities well known to the victim: cops breaking down doors; tapping phone lines; abusing prisoners; peeping in windows, either in person or through more sophisticated means (like infrared camera monitors), etc. . And, even if the surveillance itself is done secretly, the exclusionary rule comes into play when the result is offered in court. If information is obtained from third-party sources, it is done with a subpoena and both the third-party and the defendant know about it. Surveillance, by contrast, is done in secret. The victim does not know he or she is being spied on. Consequently, in most cases, the “exclusionary rule” would never become applicable.
Second, the “exclusionary rule” works because the motive of those who illegally obtain information is to convict a criminal suspect of a crime and the rule frustrates that motive. The motive of NSA’s surveillance is only peripherally interested in securing a conviction in court. In fact, the goals of choice seem to be either death, interrogation in some secret location free from supervision by ordinary law enforcement agents or permanent imprisonment in a facility like Guantanmo. So again, the “exclusionary rule” would only rarely apply.
Third, the NSA surveillance program is dangerous, not because it may lead to criminal prosecutions in court, but because it gives government information useful for blackmailing and controlling American citizens for political purposes or for the purpose of forcing them to snitch on their neighbors or acquaintances. Anyone who regards these possibilities as unlikely should recall the Nixon or the McCarthy eras. There is no reason to assume that some future jackass will not emerge, willing to use whatever tools are available to punish his or her opponents.
Fourth, because the “exclusionary rule” is a courtroom remedy, it probably won’t work to limit NSA’s surveillance program because, whenever any aspect of that program is challenged in court, the government’s knee-jerk reaction is to invoke the “national security” defense that precludes all judicial remedies for violations of individual rights. That defense would doubtless be a barrier to the enforcement of the “exclusionary rule”.
Fifth and finally, as we have already learned, when all else fails, those in charge of the surveillance will lie to protect themselves and their program from public scrutiny. And, when and if their lies are exposed, the liars will not face prosecution and jail, as would any other person who lies to a federal agency, including the United States Congress. They will continue in their positions, presumably resolved to be more careful to prevent their next lies being detected and exposed.
So, I return to my original conclusion, stated in earlier posts: The only effective and safe way to protect against government’s abuse of surveillance is to prevent the original acquisition of the information. Government should not have access to so-called metadata consisting of information swept up through technological means concerning Americans, regardless of whether the subject of the information has done anything entitling the government to acquire the information.
It is true that such information is already collected by private enterprise agencies like Google, Facebook, Twitter, AT&T and countless other companies, who acquire the information for the purpose of carrying on their legal businesses. Their motive is profit. They have no reason to use the information to harm people. They do not have the power to jail or kill those about whom they have learned personal information. So, they can be trusted with the information. They may bother us with ads or telemarketing, but they won’t jail or kill us. That threat is limited to government. That is why we have a Constitution to protect us.
The government should be able to access that privately held data, based on warrants obtained from a court, based on publicly known criteria, not on a secret jurisprudence created by the FISA court. Its use of the data should be subject to judicial supervision when it involves, either primarily or incidentally, data concerning innocent Americans.
I acknowledge that the present Congress and President will not even consider such a solution. They are all invested in the GWOT (Global War On Terror), eager to boast of every Al Qaeda operator killed and every plot to blow up something in the U.S. thwarted; hostile toward any public disclosure of what they are doing and to whom they are doing it. So far as concerns the millions of Americans whose lives they pilfer and the thousands of innocent civilians they kill with drone strikes, manned aircraft bombing raids and ground invasions, they dismiss these as “collateral damage” and refer to them as the inevitable consequence of the GWOT.
Based on their reaction to these matters, it seems apparent to me that the present generation of Americans has embraced the fearful attitude sought by terrorists: They are terrified of another 9/11 bombing or worse, a nuclear version of that attack. Until 9/11, Americans enjoyed life safe behind two oceans. They could respond to foreign threats by sending young men and women into harm’s way, but they could remain insulated from personal danger. The shock of 9/11 was so severe that millions of Americans were susceptible to being duped into an Iraq war because some of their leaders scared them with tales of WMD’s and mushroom clouds.
So long as that syndrome, a kind of mass PTSD, persists, fear mongers like Mike Rogers will be able to divert attention from the threat to our freedom and the erosion of our constitutional rights that the NSA surveillance program poses. But, as readers of this blog are aware, I believe in pragmatic optimism: La Esperanza muere al ultimo, hope dies last.
My hope is that the excesses of the NSA and its promoters will provoke ordinary citizens to question and then to protest the expansion of government’s power to monitor the lives of innocent Americans. I predict that Edward Snowden will not be the last leaker to expose the excesses and dangers of NSA’s surveillance program. According to the Washington Post, 500,000 private contractors have security clearances entitling them to access secret material. The total number of people who have security clearances in the U.S. is estimated to be five million, of which 1.4 million have “top security clearance” access. Here is a link to a summary of the Post’s investigation: Secrecy in America
The summary has an interesting aside. One NSA employee told the Post that “only 40 or 50 persons” had access to some of the material exposed by Snowden and that elite group did not include Snowden, a relatively low level contract worker. So, the obvious question is: How secure are the secrets of this super top secret group?
I predict that efforts to ward off public knowledge of what the NSA is doing will fail. Americans are not inclined to be docile when they discover their private behavior has been and is being monitored, recorded and analyzed by faceless hoards of bureaucrats. I think there is a good chance that a movement will grow outside government to reign in this program. It will feature Twitter, Facebook and other social media. It will eventually involve public meetings and rallies. And, if it grows big enough and loud enough, cowering public officials will change their minds about NSA and its surveillance program.
I hope this happens. It may not. America may become the kind of country imagined in George Orwell’s 1984. Or, even worse, it may follow the model of East Germany during the Communist government period when the Stasi kept a file on everyone. I hope not.
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.
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.