Tag Archives: Nsa

Midterms & Mass Surveillance, Part II: CIA and Elite Torturers Win, The Rule of Law Loses

DilbertCorporateCulture2002

We lack in this country a major party that offers wholehearted and universal support for the protections embodied in the Bill of Rights, and the choices offered are often highly constrained. To take the last two presidential elections as an example, the more pro-civil-liberties of the major-party candidates has launched more Espionage Act prosecutions than all previous presidents combined; indefinitely detains legally innocent people, for fear of what they might do if released; allows agencies to gin up fake terror plots; calls the idea of actually prosecuting torturers “sanctimonious“; and would prefer a cosmetic surveillance reform that legitimates most of what the deep state is doing and that, of course, wouldn’t punish anyone. The less pro-civil-liberties candidates argued for unending war in the Middle East, invited warmongers and torturers to introduce them at campaign stops, and argued that affording due process to prisoners of war would be a kind of treason.

There’s a reason for this constrained choice set: The elites of both parties no longer, if they ever did, believe that laws apply to them, their colleagues, their funders, or the intelligence agencies. As a result of this culture of lawlessness, no candidate that genuinely seeks to have laws apply universally will garner the insider support needed to advance their candidacies.

We will see the effects of this constrained choice set in the new Congress most clearly in the field of prosecutions for US government acts of torture.

Let’s review the history.

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War-Addicted US Military Now Arguing It Can Spy On All Computers In States With Military Bases

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A new ruling from the Ninth Circuit (h/t Eugene Volokh) highlights a case where an NCIS agent:

“surveyed the entire state of Washington for computers sharing child pornography.” [their italics] It was Agent Logan’s “standard practice” to do so. There is “abundant evidence that the violation at issue has occurred repeatedly and frequently” […] [Agent Logan] “appeared to believe that these overly broad investigations were permissible, because he was a U.S. federal agent and so could investigate violations of either the Uniform Code of Military Justice or federal law.” […] Incredibly, “the government is arguing vehemently that the military may monitor for criminal activity all the computers anywhere in any state with a military base or installation, regardless of how likely or unlikely the computers are to be associated with a member of the military.”

In dissent, Justice Diarmuid O’Scannlain expresses his disgust that applying the exclusionary rule would “set a convicted child pornographer free”, and argues that “from the premise that the government believes it has a certain power, it does not follow that the government routinely exercises that power.”

This was the first time that a Posse Comitatus violation had been addressed by excluding the evidence, and legal blogs are abuzz with the question of whether that remedy was appropriate. To me, O’Scannlain’s visceral dissent naively ignores the government’s track record on surveillance and civil liberties, and the fact that this case effectively discloses a new form of mass government surveillance practice.

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The Executive’s Humpty-Dumpty Terrorism Watchlisting Policy: Lessons from People v. Morales

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The Intercept’s publication of the criteria for the terrorism watchlists throws some light at least on what the government tells itself a terrorist is. This is a matter of keen interest to many of us, since a close reading of the following text tells you a lot about the values and priorities of our new-minted surveillance state overlords.

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Not to go all mise en abyme about it, but this definition is, well, abysmal. Let’s take it a step at a time.

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NSA: Civil Liberties are for Christians, Not “Mohammed Raghead”

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The Intercept has a careful profile of five American Muslim leaders who have been targeted by the NSA. It makes clear that absolutely nothing in the public record suggests that these five men are suspected of or are guilty of any crime, or are “agents of a foreign power”. Over at Lawfare, they’re busy arguing that we aren’t allowed to see the secret evidence contained in the FISA warrant applications against these men, and that therefore we can’t tell that they are innocent. Those of us who are more familiar with bedrock legal principles realize that actually, if you can’t cite any actual evidence that someone is guilty, that’s what being innocent means.

Asim Ghafoor, a civil rights lawyer who has defended terrorism suspects, is on the list; but other, non-Muslim attorneys who defended the same cases are not on it. It seems clear that being Muslim has something to do with being on the list. NSA flacks have argued defiantly that the five were not targeted “solely” on the basis of First Amendment-protected activities, but that means almost nothing. They could have been targeted on the basis of their dark skin in addition to their religion, and what the NSA is claiming would technically be true, but that wouldn’t make it right. The article also shows the NSA demonstrating its respect for one of the world’s biggest religions by using for its sample suspect profile the name “Mohammed Raghead.”

Those who are calling this a new form of red-baiting have a point. But let’s dig into that comparison more closely. What’s wrong with both red-baiting and Muslim-baiting is that, in an attempt to counter an external threat, the intelligence agencies have become unmoored from any fidelity to the truth, the Constitution, or to norms of civilian democratic control. “Preventing the next 9/11” is the watchword, and in its name any abuse becomes justified.

But there is also an important way in which this persecution of Muslims is not like what has gone before. The red-baiters, however misguidedly, were trying to combat a meaningful external threat. Stalin and Mao were brutal mass-murdering dictators backed by nuclear weapons, enormous natural resources and hundreds of millions of people. By comparison, the territories controlled by Muslim extremists today are small, remote and poor, able to pose almost no threat to our domestic peace and prosperity. It’s a measure of how much safer the world is now than it was then, that we can afford to pay any attention to this murderous fringe movement. It is utterly absurd to use that murderous fringe movement to waste trillions in taxes and mount an all-out assault on the Bill of Rights.

High Over Compton: “Wide Area Surveillance” Surveils Entire Town

The Atlantic picks up on a story from the Center for Investigative Reporting that in 2012, the LA County Sheriff’s Department secretly tested a civilian surveillance aircraft by flying it over a town in their jurisdiction and taking high-resolution footage of everything visibly happening there, over a period of up to six hours (highlights are ours):

If it’s adopted, Americans can be policed like Iraqis and Afghanis under occupation – and at bargain prices:

McNutt, who holds a doctorate in rapid product development, helped build wide-area surveillance to hunt down bombing suspects in Iraq and Afghanistan. He decided that clusters of high-powered surveillance cameras attached to the belly of small civilian aircraft could be a game-changer in U.S. law enforcement.

“Our whole system costs less than the price of a single police helicopter and costs less for an hour to operate than a police helicopter,” McNutt said. “But at the same time, it watches 10,000 times the area that a police helicopter could watch.”

A sergeant in the L.A. County Sheriff’s office compared the technology to Big Brother, which didn’t stop him from deploying it over a string of necklace snatchings.

The town they chose? Compton. Yes, that Compton, but it’s not the same Compton as yesteryear. Its boosters are now touting it as the hip, countercultural Brooklyn of the LA area. It has an inspirational new Millennial mayor, Aja Brown, who has garnered comparisons to Cory Booker. Its crime rate is down sixty percent, and it’s now majority-Latino. But it still has a median household income of $42,335, and still, even after all its struggles, somehow found itself the first city selected for mass surveillance, over, say, majority-white, tony Santa Clarita (median household income $91,450). Well, blow me down with a post-racial colorblind goddamn feather.

In related news, the NSA, under its MYSTIC and RETRO programs, was revealed last month to have been collecting the contents of the phone communications of an entire country (unnamed, but probably Iraq).

Believe it or not, this is the program's actual logo.

Believe it or not, this is the program’s actual logo.

These two stories are essentially the same. Developments in technology allow law enforcement surveillance to sweep past legal constraints intended for an era where collecting, storing and analyzing so much data was inconceivable. In luckless Compton, the Supreme Court’s 1989 decision in Florida v. Riley renders “wide area surveillance” presumptively constitutional. In luckless Iraq, the expansive powers of Executive Order 12333 and the FISA Amendments Act impose effectively no constraints on the NSA in intercepting the communications of foreign nations.

May I draw your attention to three salient points?

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GUEST POST: Time to reveal the Israeli role in the US surveillance machine

[Guest post from Nancy Murray, an advocate for Palestinian rights for over 25 years. Crossposted at Mondoweiss. Nancy has researched and written about surveillance extensively for the ACLU of Massachusetts and its privacysos.org website. While this is not a blog that covers the Israeli-Palestinian conflict, it is shocking that the NSA, as a matter of policy, shares unconstitutionally collected and unminimized intelligence on US persons with agents of any foreign government.]

If the Israeli government has indeed ordered its spies “to dig up intelligence” showing links between the supporters of BDS and “terrorists and enemy states” as reported in the February 11, 2014 London Times, it may find that it already has as much information as it needs in its data banks.

As described in the UK Guardian by Glenn Greenwald, Laura Poitras and Ewen MacAskill, a 2008 document obtained by whistleblower Edward Snowden states that “one of the NSA’s biggest threats is actually from friendly intelligence services, like Israel. There are parameters on what NSA shares with them, but the exchange is so robust, we sometimes share more than we intended.”

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Quit Throwing 9/11 In Our Faces

This letter makes me sick at heart. The very people who were supposed to defend our country, who even now parade onto talk shows and give interviews about the NSA scandal like people of authority, stand revealed as corrupt and depraved.

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They failed to prevent 9/11. Perhaps even then the volume of data was so great that they simply didn’t notice, or were unable to integrate, the information they had. But they should have been able to learn from their failure, and instead, they covered it up, and their cover-ups and their lies have cost many thousands more lives. Michael Hayden, Dick Cheney, Robert Mueller, and all the people who have made it so easy for the NSA to lie to us for so long, shame on all of you.

Let me explain. No, there is too much. Let me sum up.

The NSA had collected critical information (relating to calls made by AA-77 hijacker Khalid al-Mihdhar from the US to Yemen) that could have thwarted 9/11, but decided for unknown reasons not to share that information beyond the NSA. They then covered it up, instead of admitting it so that we could learn from it and improve what we were doing.

Before 9/11, the NSA had developed a surveillance program called THINTHREAD, which would have integrated intelligence findings while automatically encrypting all US persons’ communications, and which would have required a court order based on probable cause for their decryption. Gen. Michael Hayden, the same Hayden whose understanding of the Fourth Amendment was so poor that he insisted that it doesn’t contain the words “probable cause,” scotched THINTHREAD in favor of unencrypted bulk surveillance of Americans (STELLARWIND), and a boondoggle called TRAILBLAZER that previewed our occupation of Iraq by failing massively while massively enriching Hayden’s contractor friends.

Now, thanks to their addiction to mass collection, the NSA has admitted that it is indeed drowning in data it cannot process. Its apologists scurry round spreading fear about reforms that would actually make their work more restrained and effective, and in a last, desperate throw of the dice, they are invoking the shadow of 9/11 – the same 9/11 that their bulk surveillance failed to thwart last time around. These days, the only terrorist attacks they seem capable of thwarting are the ones they gin up in advance, but no matter: making the NSA conform to the Constitution will not KEEP US SAFE.

You know that on this blog I tend not to use the swears. This time, I do use the swears:

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