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July 8, 2012 10:40 AM   Subscribe

"Now we have three former NSA officials confirming the basic facts. Neither the Constitution nor federal law allow the government to collect massive amounts of communications and data of innocent Americans and fish around in it in case it might find something interesting. This kind of power is too easily abused. We're extremely pleased that more whistleblowers have come forward to help end this massive spying program." - the EFF announces that three former employees of the NSA have come forward to testify in their lawsuit against the NSA over the domestic spying program.
posted by crayz (31 comments total) 26 users marked this as a favorite

 
Note that "Neither the Constitution nor federal law allow the government to ..." is the same as saying, "Neither the Constitution nor federal law disallow the government from ..."

If either the Constitution or federal law do in fact prohibit such, then these guys should be stating such. Otherwise, let's get some legislation on the books as a stopgap while we run a Constitutional amendment through the process.
posted by Ardiril at 10:50 AM on July 8, 2012


Which just shows that even the whistleblowers don't think the Fourth Amendment matters anymore.
posted by Holy Zarquon's Singing Fish at 11:03 AM on July 8, 2012


Ardiril, did you make a typo, or are you really saying "allowed" and "disallowed" are equivalent?
posted by ryanrs at 11:04 AM on July 8, 2012


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

It's an amendment, but still part of the Constitution.
posted by deanklear at 11:05 AM on July 8, 2012 [6 favorites]


NSA: It Would Violate Your Privacy to Say if We Spied on You
posted by homunculus at 11:09 AM on July 8, 2012 [2 favorites]


What legal claims are being raised in the Jewel v. NSA lawsuit?

Violation of the Fourth Amendment to the Constitution
Violation of the First Amendment to the Constitution
Unlawful electronic surveillance or disclosure or use of information obtained by electronic surveillance in violation of 50 U.S.C. §1809.
Unlawful interception, use or disclosure of Class communications in violation of 18 U.S.C. § 2511
Unlawful solicitation and obtained disclosure of the contents of communications in violation of 18 U.S.C. § 2702(a)(1) or (a)(2)
Unlawful solicitation and obtained disclosure of non-content records or other information in violation of 18 U.S.C. § 2702(a)(3)
Violation of the Administrative Procedures Act
Violation of the constitutional principle of separation of powers
posted by anotherpanacea at 11:21 AM on July 8, 2012 [3 favorites]


Otherwise, let's get some legislation on the books as a stopgap ...
It's rather hard to see how any new legislation could be more explicit in forbidding this than the Foreign Intelligence Surveillance Act of 1978. The problem is that both this administration and the previous one have asserted that the very general 'all necessary and appropriate force' permission in the AUMF overrides the very specific prohibitions in FISA.

Since AUMF is interpreted as allowing war on a non-specific enemy, on a battlefield that includes the territory of the United States, both administrations have understood that phrase to allow them an almost unprecedented liberty in taking warlike actions, despite previous restrictions that would otherwise restrict them.

Under other circumstances, this would be an obvious place for the courts to step in and decide which law prevails. Unfortunately, the administration has done all it can to prevent that from happening.

Courts routinely establish special procedures in order to safely make rulings based on information that the government refuses to disclose to the counterparties or the public--in one case in the late seventies, a court even had to decide whether or not a certain article provided dangerously accurate description of the working of a fusion bomb. Despite that, the administration claims that the details of their current surveillance program are too secret for any court, under any controls, to examine.

Whether they're making that claim out of legitimate concern for the security of the courts, or merely trying to impede judicial review of the authority for their actions, is a question that everyone ought to consider for themselves.
posted by CHoldredge at 11:37 AM on July 8, 2012 [4 favorites]


Since AUMF is interpreted as allowing war on a non-specific enemy, on a battlefield that includes the territory of the United States, both administrations have understood that phrase to allow them an almost unprecedented liberty in taking warlike actions, despite previous restrictions that would otherwise restrict them.

Which is exactly why we should have had an impeachment of GWB.

Not out of any kind of vendetta against the man, but in order to pull back out of the POTUS tool chest all the powers he had assumed into the office which were (and continue to be) extraconstitutional.

Sadly, this didn't happen, and now those tools and assumptions are part of the office legacy and are going to be even more difficult to get rid of.
posted by hippybear at 11:44 AM on July 8, 2012 [14 favorites]


When FISA was passed in response to US government abuse of wiretaps (the New York Times has an excellent page on FISA's origins), NSA employees had it drilled into them from that spying on US Citizens was Not Allowed, At All (asterisk - with narrow exceptions, which a special court set up under FISA would review before granting permission).

I suspect former employees of the NSA are stepping forward because they remember why FISA was passed find spying on US citizens to be repugnant.
posted by zippy at 11:48 AM on July 8, 2012


As Greenwald has mentioned before, we exist in a lawless state already where it matters most: in our shared cultural understanding of the point of laws. A sadly large part of America is very much of the ends-justify-means school of thought with respect to what the Executive should be able to do. Perhaps this is rooted in complacency as a result of privilege, more than anything else. It certainly isn't a scholarly position for more than a handful of outliers.
posted by odinsdream at 12:05 PM on July 8, 2012 [3 favorites]


...those tools and assumptions are part of the office legacy and are going to be even more difficult to get rid of.
My vote for understatement of the year? Right there.

We now have many, or even most, opinion leaders on both ends of the political spectrum on the record supporting "their" president in his use of these tools. Dissent seems to be limited to a discouragingly small subset of people who consider the principles of civil liberty more important than support of their party.

Personally, I suspect we'll have to see public disclosure of a massive misuse not just of these powers, but of the information gathered using them, before Congress or the courts grows enough backbone to stand up for principles again.

Perhaps fortunately, in a horrible way, that abuse of information is almost inevitable. It's almost impossible to imagine any large bureaucracy gathering this much information about its own people and not finding a way to use it to their own benefit and the people's detriment. The public disclosure, unfortunately, is far less certain. P

ersonally, I doubt these three brave men coming forward will be nearly enough on it's own. But if nothing else, they're providing the example and reminding us all of what we're supposed to stand for. All honor to them for it, and I hope their example encourages others in the same position, and inspires the rest of us who agree with their ideals to take more concrete action in support.

Now where's my checkbook? Not a good week for it, but I think I owe the ACLU a bit more support.
posted by CHoldredge at 12:12 PM on July 8, 2012


Donate to the EFF
posted by ryanrs at 12:18 PM on July 8, 2012 [2 favorites]


Which is exactly why we should have had an impeachment of GWB.

Not out of any kind of vendetta against the man, but in order to pull back out of the POTUS tool chest all the powers he had assumed into the office which were (and continue to be) extraconstitutional.

Sadly, this didn't happen, and now those tools and assumptions are part of the office legacy and are going to be even more difficult to get rid of.


Well, you could just impeach Obama for the spying if it's still illegal. I doubt the Republicans would mind giving you the votes.
posted by furiousxgeorge at 12:29 PM on July 8, 2012 [2 favorites]


Well, you could just impeach Obama for the spying if it's still illegal.

True, and in some ways I'd be in favor of that, actually.

The complication, as I said, is that these powers are now part of the legacy of the office, and there can mounted a defense based on there being no legal protest under previous administrations, therefore why should this administration be held to task for it.

It really should have happened before the transfer of power in order to short circuit that, but it wasn't.
posted by hippybear at 12:55 PM on July 8, 2012 [1 favorite]


It's a shame that the NSA's budgets are secret, as well. I wonder if making domestic surveillance illegal again would shrink how much funding they get. Expanded surveillance programs cost more, and bigger projects demand bigger budgets, which translates to more influence in Washington.
posted by Blazecock Pileon at 1:04 PM on July 8, 2012


Is this not what ECHELON has been doing for years? Is this something new?
posted by alby at 1:07 PM on July 8, 2012


Your egos are too big for you to accept that you are in trouble.
posted by CautionToTheWind at 1:14 PM on July 8, 2012 [1 favorite]


alby: "Is this not what ECHELON has been doing for years? Is this something new?"

Sort of. The differences are that firstly, by the way that the listening stations are/were set up they cannot spy on communications inside the US, only international communications. Secondly, there was at least a fig leaf of propriety in that the NSA was not spying on the communications of those inside the US, it was the Australian and UK governments doing that. Of course, the communications were/are all shared after collection, but at least the argument could be made that the NSA itself was not spying on US nationals in the US.

Since 9/11, the NSA has set up listening devices that, by the nature of their connection, cannot be said to grab even mostly international communications, but necessarily collect mostly domestic communications.

Basically, ECHELON took advantage of loopholes in the law. The new program doesn't bother with the loopholes, instead ignoring the law completely.
posted by wierdo at 4:12 PM on July 8, 2012 [1 favorite]


Bill and Tom are awesome. Total heros.
posted by ioerror at 4:29 PM on July 8, 2012 [1 favorite]


Blazecock Pileon: It's a shame that the NSA's budgets are secret, as well. I wonder if making domestic surveillance illegal again would shrink how much funding they get.

They'll find the money no matter what. Reminds me of this scene from Independence Day:

President Thomas Whitmore: I don't understand, where does all this come from? How do you get funding for something like this?
Julius Levinson: You don't actually think they spend $20,000.00 on a hammer, $30,000.00 on a toilet seat do you?
posted by dr_dank at 6:36 PM on July 8, 2012


FISA is a law allowing warrantless wiretaps. Bush tried to go beyond it.

The question is this, where is the line drawn regarding the government's right to conduct military and espionage survellance? Can the government listen in on a cell phone conversation between an intelligence asset of a foreign power if that asset is within the US?
posted by Ironmouth at 7:54 AM on July 9, 2012


The question is this, where is the line drawn regarding the government's right to conduct military and espionage survellance? Can the government listen in on a cell phone conversation between an intelligence asset of a foreign power if that asset is within the US?

Sorry, I forget, exactly how many hundreds of millions of intelligence assets of foreign powers are making domestic phone calls per day? What a bullshit slight of hand. No. The question is, can they do this:
Binney says Stellar Wind was far larger than has been publicly disclosed and included not just eavesdropping on domestic phone calls but the inspection of domestic email. At the outset the program recorded 320 million calls a day, he says, which represented about 73 to 80 percent of the total volume of the agency’s worldwide intercepts. The haul only grew from there. According to Binney—who has maintained close contact with agency employees until a few years ago—the taps in the secret rooms dotting the country are actually powered by highly sophisticated software programs that conduct “deep packet inspection,” examining Internet traffic as it passes through the 10-gigabit-per-second cables at the speed of light.
They are building a $2 billion, 1 million square foot data center. Not their only one. They are listening to *everything*. You are yet again acting as an apologist for the Obama administration, and for this dragnet, waving foreign assets in front of people's faces
posted by crayz at 10:19 AM on July 9, 2012


I think this is the link which that quote comes from: The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say)
posted by homunculus at 10:44 AM on July 9, 2012


In other news: Mobile-Phone Surveillance by Police Targets Millions Annually
posted by homunculus at 10:55 AM on July 9, 2012


5 Ways to Stop National Security Leaks (But Do You Really Want To?)
posted by homunculus at 12:34 AM on July 10, 2012


1.3M Cellphone Snooping Requests Yearly? It’s Time for Privacy and Transparency Laws
posted by homunculus at 7:14 PM on July 11, 2012


NSA Mimics Google, Pisses Off Senate
posted by homunculus at 4:02 PM on July 17, 2012


EFF says FBI gag orders violate service providers' free speech rights: A telephone company wants national security letters declared unconstitutional.
posted by homunculus at 1:40 PM on July 18, 2012


NSA Whistleblower Drake: You're automatically suspicious until proven otherwise
posted by homunculus at 4:21 PM on July 18, 2012


Justice Department Sues Telecom for Challenging National Security Letter
posted by homunculus at 9:33 AM on July 19, 2012


NSA Chief Tells Hackers His Agency Doesn’t Create Dossiers on All Americans
posted by homunculus at 10:08 AM on July 28, 2012


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