Israeli Spy Jonathan Pollard

yosi

My bad. Judge Leon is the judge that I mistakenly referred to as the district court judge in Virgina. And no, of course he knows what he's talking about. As I said earlier in this thread, there are indications that the law may be moving towards the position that Judge Leon is staking out. My read, however, is that his opinion is at odds with current Supreme Court precedent.

As I said in my last post (or really implied) the better approach to take to this whole question is to accept that it IS a question, i.e., you seem committed to taking an absolutist position that these programs are unconstitutional, whereas what I'm trying to tell you is that the constitutionality of these programs is actually very much up for debate. Certainly there are those, Judge Leon among them, who believe that the programs are unconstitutional. There are many other legal thinkers who disagree. Moreover, the objective state of the law at this moment, based on binding precedent, is that these programs are constitutional. Judge Leon knows this - he works hard in his opinion to argue around these precedents. That doesn't mean that the law won't change. Again, the Supreme Court may very well adopt Judge Leon's position. As of right now, however, my understanding is that his opinion is odds with the case law.

Finally, no, I am not suggesting that ONLY someone with legal training is capable of understanding the law. Certainly there are autodidacts out there. I do, however, think that the whole point of legal training is to get a better understanding of the law, and that people who have gone to law school will in general have a vastly better understanding of the law than people who haven't. I don't think that's conceited. I think that's just an acknowledgment of the fundamental purpose of a legal education. The whole reason you hire a lawyer is because he or she has a professional expertise in the law that you, as a non-lawyer, lack.

Byrnzie

Does the legality of the mass surveillance programs depend on there being effective Congressional oversight? If so, then the fact that members of Congress have been prevented at every turn from gaining the information they seek should be evidence enough that the NSA is acting in total secrecy, and is therefore in breach of the Constitution. Yes, or no?

yosi

No. The constitutionality of the programs and the effectiveness of congressional oversight are separate questions.

It's also not clear exactly what congress knew when. There are some members of congress who are claiming that they had no idea what was going on and there are others who are saying that the congress was fully informed. My instinct is not to put too much credence in either assertion. Everybody on the hill is looking to cover their own ass, they all have an agenda, so who knows who's telling the truth. My guess is the truth is somewhere in the middle.

Byrnzie

What members of Congress have said they were kept fully informed? That's the first I've heard of it.

yosi

Diane Feinstein for sure (she chairs the Senate Select Committee on Intelligence), and I'm pretty sure Saxby Chambliss as well (vice chair of the same committee). There may be others, but those are the two I remember.

Byrnzie

yosi said:

Diane Feinstein for sure (she chairs the Senate Select Committee on Intelligence), and I'm pretty sure Saxby Chambliss as well (vice chair of the same committee). There may be others, but those are the two I remember.

Can you point me to where Feinstein has stated that she was 'fully informed' about the mass surveillance program?


All I can find is this:

http://www.techdirt.com/articles/20131014/17191824879/even-dianne-feinstein-admits-that-nsa-oversight-is-often-game-20-questions.shtml

Even Senate Intelligence Committee Admits That NSA Oversight Is Often A Game Of 20 Questions

We just recently quoted Rep. Justin Amash talking about how Congressional "oversight" of the NSA tended to be this bizarre game of 20 questions, where briefings would be held, but you wouldn't be told any information unless you asked precisely the right questions:

But Amash said that intelligence officials are often evasive during classified briefings and reveal little new information unless directly pressed.

"You don't have any idea what kind of things are going on," Amash said. "So you have to start just spitting off random questions. Does the government have a moon base? Does the government have a talking bear? Does the government have a cyborg army? If you don't know what kind of things the government might have, you just have to guess and it becomes a totally ridiculous game of twenty questions."

It would appear that sense goes beyond just folks like Amash, all the way up to the head of the Senate Intelligence Committee, Dianne Feinstein. While she's still a strong supporter of the NSA's surveillance programs, the latest revelations about the NSA's collection of buddy lists and email address books pointed out that those issues weren't covered by Congressional oversight, since they happened overseas. When the Washington Post questions Feinstein's office about this, a senior staffer seemed unconcerned, mentioning that perhaps they should be asking questions about it:

Sen. Dianne Feinstein (D-Calif.), chairman of the Senate Intelligence Committee, said in August that the committee has less information about, and conducts less oversight of, intelligence-gathering that relies solely on presidential authority. She said she planned to ask for more briefings on those programs.

“In general, the committee is far less aware of operations conducted under 12333,” said a senior committee staff member, referring to Executive Order 12333, which defines the basic powers and responsibilities of the intelligence agencies. “I believe the NSA would answer questions if we asked them, and if we knew to ask them, but it would not routinely report these things, and in general they would not fall within the focus of the committee.”

That, ladies and gentleman, is the kind of "oversight" that Congress conducts.



And this:

http://www.politico.com/story/2014/03/hill-draws-criticism-over-nsa-oversight-104151.html

Hill draws criticism over NSA oversight

Cries of lax Capitol Hill oversight are piling up as Snowden-inspired stories continue to explode in the media, casting doubt on whether the legislative watchdogs can be trusted to oversee national security agencies that they’ve long defended.

Intelligence Committee leaders from the House and Senate insist they’ve done their due diligence but acknowledge that lawmakers can glean only as much information as the president and his team will share. And even then, anything of such a highly classified nature can’t be legally disclosed anyway.

Still, a “trust us” promise from the lawmakers with the highest of high-security clearances isn’t satisfying critics.

Among Snowden’s stated reasons for leaking stolen documents to select members of the press: Senate Intelligence Committee Chairwoman Dianne Feinstein, for asking “softball questions” of national security officials during public hearings. “The system failed comprehensively,” the former National Security Agency contractor told The Washington Post in December.

...Sen. John McCain (R-Ariz.) is even pushing a resolution to create a new Senate investigative panel that can dig in on all the surveillance issues already under the purview of the Intelligence committees. The existing panels, he said, can’t be trusted to do their job.

“Clearly, they’ve been co-opted. There’s no doubt about that,” McCain told POLITICO.

It’s a classic Washington story in which Congress and national security agencies end up in lock step, with lawmakers seen as serving more like cheerleaders than watchdogs. Four decades ago, then-Senate Armed Services Committee Chairman John Stennis (D-Miss.) was widely quoted telling the CIA’s leaders he didn’t want to know what they were doing.

....“What happens when you get on the committee, right away the intelligence community sweeps in and basically starts the process of trying to kind of say, ‘Well, these are tough issues.’ And, in effect, only one point of view gets conveyed,” Sen. Ron Wyden (D-Ore.), a longtime Intelligence Committee member and NSA critic, said in an interview. “It’s our job to do vigorous oversight and not just get caught up in the culture that makes you, in effect, something more like an ambassador than a vigorous overseer.”

“You can get caught up in that world. There’s a certain glamour to it I think for a lot of elected officials,” explained freshman Sen. Martin Heinrich (D-N.M.), one of the Intelligence Committee’s newest members.

At a recent hearing, Heinrich saw firsthand how difficult public oversight can be while pressing CIA Director John Brennan on his agency’s interrogation and detention programs. When Brennan replied that he’d rather answer in a private session, Feinstein cut off her fellow Democrat’s line of questioning.

“I’d only say we view our roles somewhat differently,” Heinrich later said of Feinstein during an interview.

polaris_x

i too am enjoying this discussion ... i think it's pretty clear that this program can be argued as constitutional or not and that there is no clear consensus amongst the legal community ... so, to keep telling someone they are wrong and don't know what they are talking about is a bit much ... so, maybe we can put that part of the discussion to rest ...

rgambs

DriftingByTheStorm said:

I am really enjoying this thread, if you two (Byrnzie and Yosi) can keep it civil, then this thread actually has the potential to be one of the better ones on the forum right now.

Unfortunately I do not have a lot to add, as we long ago passed the point where what I feel is unjustifiable case law has trumped the constitution utterly warping the foundations of our system of law. The most egregious current example being the utterly fucked and inconsistent reasoning for allowing the ACA (not to get off topic, just citing an example, and FWIW, i now have entirely FREE - to me - health care because of ACA which i am morally disgusted by).

it isn't free you paid for it with your taxes. Canadians are generally glad to pay higher taxes because of health care.
I wonder which is more morally disgusting to you, "free" health care, or decades long insurgent wars with body counts in the thousands?

We absolutely CAN afford the ACA if we make defense contracts a smaller piece of the pie.

DriftingByTheStorm

rgambs said:

DriftingByTheStorm said:

I am really enjoying this thread, if you two (Byrnzie and Yosi) can keep it civil, then this thread actually has the potential to be one of the better ones on the forum right now.

Unfortunately I do not have a lot to add, as we long ago passed the point where what I feel is unjustifiable case law has trumped the constitution utterly warping the foundations of our system of law. The most egregious current example being the utterly fucked and inconsistent reasoning for allowing the ACA (not to get off topic, just citing an example, and FWIW, i now have entirely FREE - to me - health care because of ACA which i am morally disgusted by).

it isn't free you paid for it with your taxes. Canadians are generally glad to pay higher taxes because of health care.
I wonder which is more morally disgusting to you, "free" health care, or decades long insurgent wars with body counts in the thousands?

We absolutely CAN afford the ACA if we make defense contracts a smaller piece of the pie.

Except I don't pay income tax because my income is too low.
My health insurance, which I was forced to get or pay a penalty for not receiving, is 100% subsidized by some other poor shmucks hard earned dollars. As someone who had never taken a dollar, I am somewhat disgusted by being forced with a monetary stick in to health care that some one else had to pay for.

And you won't get very far by trying to somehow one-or-the-other me with a free health care vs. insurgent wars debate. I think you can ask anyone on here, and they will tell you I have never been on this forum advocating for the CIA, the MIC, neocons, nwolibs, Kissinger, Brzezinski, or any other group or persons whom advocate and actively supports such policies. I understand why these things are done. I understand the agenda that frames our leaders desires to engage in these geopolitical strategies, but I detest such actions as much as the most radical leftist on here.

We need to refrain from lashing out others based on our uninformed opinions of what we believe they think based solely on their stance on an unrelated topic - ie. my dislike of being roped in to socialized medicine does not inherently make me an ignorant redneck warhawk.

yosi

B, for quotes from Feinstein and Chambliss see:

http://www.politico.com/story/2013/06/dianne-feinstein-on-nsa-its-called-protecting-america-92340.html

Responding to the first article you cited: you're conflating a whole bunch of different programs that operate under different legal authorities. Intelligence collection that occurs within the territorial boundaries of the United States must be authorized by an act of Congress. Those are the programs that Congress does oversight of. Intelligence gathering that is done exclusively abroad is generally authorized solely by the Executive (the relevant Executive Order is # 12333). This foreign/domestic distinction reflects the Constitutional principle of separation of powers, specifically the delegation to the Executive Branch of authority over foreign affairs. The reason Congress generally doesn't look into foreign intelligence operations conducted solely under Presidential authority is because that would risk encroaching on powers exclusively delegated to the Executive by the Constitution.

In any event, the two programs that people are the most up in arms about are domestic programs, which ARE subject to Congressional oversight. These are the bulk collection of telephone metadata, and PRISM, which collected Internet communications data of "non-U.S. persons" (to quote the statute) located outside the United States, where the data itself was being stored or was crossing through fiber-optic cables located within the United States. The phone program is authorized under section 215 of the FISA Amendments Act, and PRISM is authorized under section 702 of the same.

Regarding the second article, I agree that there are definitely problems with Congressional oversight, but I don't think it's fair to say that the intelligence committees are in complete lock-step with the intelligence community. Just look at the fight that's going on right now between Feinstein and the CIA over Bush-era "enhanced interrogation" (read "torture").

yosi

Drifting, have you ever gone to an emergency room?

rgambs

shit driftin, I pay enough taxes for the both of us lol I am damn glad that money you get is going toward your health and not towards building drones!!

Byrnzie

Interesting statement from Senators Ron Wyden and Tom Udall here. Looks like Congressional officials aren't being told the whole truth about the NSA's surveillance programs:

http://www.wyden.senate.gov/news/press-releases/wyden-and-udall-statement-on-the-declassification-of-fisa-court-opinions-on-bulk-collection-of-phone-data

Wyden and Udall Statement on the Declassification of FISA Court Opinions on Bulk Collection of Phone Data
Tuesday, September 10, 2013

Washington, D.C. – U.S. Senators Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) issued the following statement after the declassification -- as a result of a Freedom of Information Act lawsuit filed by the Electronic Frontier Foundation and the American Civil Liberties Union -- of more than 1800 pages of previously secret Foreign Intelligence Surveillance Court opinions and other documents on the government’s bulk collection of Americans’ phone records.

“When the executive branch acknowledged last month that ‘rules, regulations and court-imposed standards’ intended to protect Americans’ privacy had been violated thousands of times each year we said that this confirmation was ‘the tip of a larger iceberg.’ With the documents declassified and released this afternoon by the Director of National Intelligence, the public now has new information about the size and shape of that iceberg. Additional information about these violations was contained in other recently-released court opinions, though some significant information – particularly about violations pertaining to the bulk email records collection program – remains classified.

In addition to providing further information about how bulk phone records collection came under great FISA Court scrutiny due to serious and on-going compliance violations, these documents show that the court actually limited the NSA’s access to its bulk phone records database for much of 2009. The court required the NSA to seek case-by-case approval to access bulk phone records until these compliance violations were addressed. In our judgment, the fact that the FISA Court was able to handle these requests on an individual basis is further evidence that intelligence agencies can get all of the information they genuinely need without engaging in the dragnet surveillance of huge numbers of law-abiding Americans.

We have said before that we have seen no evidence that the bulk collection of Americans’ phone records has provided any intelligence that couldn’t be gathered through less intrusive means and that bulk collection should be ended. These documents provide further evidence that bulk collection is not only a significant threat to the constitutional liberties of Americans, but that it is a needless one.”

Byrnzie

http://www.theatlantic.com/politics/archive/2013/06/2-senators-say-the-nsa-is-still-feeding-us-false-information/277187/

2 Senators Say the NSA Is Still Feeding Us False Information

How can a democratic republic function when the bureaucrats are constantly misleading the people?

Conor Friedersdorf Jun 25 2013

'...Senators Ron Wyden and Mark Udall say that at least one of the NSA's statements is inaccurate, and another one is misleading. "We were disappointed to see that this fact sheet contains an inaccurate statement about how the section 702 authority has been interpreted by the US government," they write. "In our judgment this inaccuracy is significant, as it portrays protections for Americans' privacy as being significantly stronger than they actually are."

Notice that these two senators feel unable to tell us what the false information is or to correct the record -- just further evidence that classified programs subvert not only public debate, but also the ability of Congress to openly discuss policy and communicate with constituents.

Wyden and Udall go on to address the NSA talking point that they characterize as "merely" misleading:

.... this same fact sheet states that under Section 702, "Any inadvertently acquired communication of or concerning a US person must be promptly destroyed if it is neither relevant to the authorized purpose nor evidence of a crime." We believe that this statement is somewhat misleading, in that it implies that the NSA has the ability to determine how many American communications it has collected under section 702, or that the law does not allow the NSA to deliberately search for the records of particular Americans. In fact, the intelligence community has told us repeatedly that it is "not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority" of the FISA Amendments Act.

To sum up, America, the privacy protections you're afforded are much weaker than you're being led to believe, and when it comes to destroying communications that concern U.S. citizens, the NSA is either lying to the Senate about its ability to flag those communications, or else misleading the public about how reliably the communications of American citizens are destroyed.

yosi

This is on topic and very worth reading.


Geoffrey R. Stone

Edward H. Levi Distinguished Service Professor of Law, University of Chicago

What I Told the NSA

Because of my service on the President's Review Group last fall, which made recommendations to the president about NSA surveillance and related issues, the NSA invited me to speak today to the NSA staff at the NSA headquarters in Fort Meade, Maryland, about my work on the Review Group and my perceptions of the NSA. Here, in brief, is what I told them:

From the outset, I approached my responsibilities as a member of the Review Group with great skepticism about the NSA. I am a long-time civil libertarian, a member of the National Advisory Council of the ACLU, and a former Chair of the Board of the American Constitution Society. To say I was skeptical about the NSA is, in truth, an understatement.

I came away from my work on the Review Group with a view of the NSA that I found quite surprising. Not only did I find that the NSA had helped to thwart numerous terrorist plots against the United States and its allies in the years since 9/11, but I also found that it is an organization that operates with a high degree of integrity and a deep commitment to the rule of law.

Like any organization dealing with extremely complex issues, the NSA on occasion made mistakes in the implementation of its authorities, but it invariably reported those mistakes upon discovering them and worked conscientiously to correct its errors. The Review Group found no evidence that the NSA had knowingly or intentionally engaged in unlawful or unauthorized activity. To the contrary, it has put in place carefully-crafted internal proceduresto ensure that it operates within the bounds of its lawful authority.

This is not to say that the NSA should have had all of the authorities it was given. The Review Group found that many of the programs undertaken by the NSA were highly problematic and much in need of reform. But the responsibility for directing the NSA to carry out those programs rests not with the NSA, but with the Executive Branch, the Congress, and the Foreign Intelligence Surveillance Court, which authorized those programs -- sometimes without sufficient attention to the dangers they posed to privacy and civil liberties. The NSA did its job -- it implemented the authorities it was given.

It gradually became apparent to me that in the months after Edward Snowden began releasing information about the government's foreign intelligence surveillance activities, the NSA was being severely -- and unfairly -- demonized by its critics. Rather than being a rogue agency that was running amok in disregard of the Constitution and laws of the United States, the NSA was doing its job.

It pained me to realize that the hard-working, dedicated, patriotic employees of the NSA, who were often working for far less pay than they could have earned in the private sector because they were determined to help protect their nation from attack, were being castigated in the press for the serious mistakes made, not by them, but by Presidents, the Congress, and the courts.

Of course, "I was only following orders" is not always an excuse. But in no instance was the NSA implementing a program that was so clearly illegal or unconstitutional that it would have been justified in refusing to perform the functions assigned to it by Congress, the President, and the Judiciary. Although the Review Group found that many of those programs need serious re-examination and reform, none of them was so clearly unlawful that it would have been appropriate for the NSA to refuse to fulfill its responsibilities.

Moreover, to the NSA's credit, it was always willing to engage the Review Group in serious and candid discussions about the merits of its programs, their deficiencies, and the ways in which those programs could be improved. Unlike some other entities in the intelligence community and in Congress, the leaders of the NSA were not reflexively defensive, but were forthright, engaged, and open to often sharp questions about the nature and implementation of its programs.

To be clear, I am not saying that citizens should trust the NSA. They should not. Distrust is essential to effective democratic governance. The NSA should be subject to constant and rigorous review, oversight, scrutiny, and checks and balances. The work it does, however important to the safety of the nation, necessarily poses grave dangers to fundamental American values, particularly if its work is abused by persons in positions of authority. If anything, oversight of the NSA -- especially by Congress -- should be strengthened. The future of our nation depends not only on the NSA doing its job, but also on the existence of clear, definitive, and carefully enforced rules and restrictions governing its activities.

In short, I found, to my surprise, that the NSA deserves the respect and appreciation of the American people. But it should never, ever, be trusted.

yosi

By the way, if anyone is interested in reading the report of the review group on which Professor Stone served, you can find it at the link below. It's about 300 pages long, but the executive summary is only about 20 pages, and if you want a clear explanation of all the relevant legal authorities and the programs at issue, this is a great resource.

http://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf

DriftingByTheStorm

yosi said:

Drifting, have you ever gone to an emergency room?

not to drag us too far off topic, but no.
at least not in the 15 or so years that I have been off my parents insurance. ie. when i was a kid, i broke my arm, or this and that. But as an adult I have, knock on wood, not had any serious illnesses, and I am one of those people who believes in the "tell yourself you aren't getting sick, and you wont get sick" defense against basic disease. Why do you ask, are you trying to turn it around and tell me that if i have ever been to the ER that i HAVE received subsidy in the past? Just curious.

yosi

Yes, that was why I asked. It seems that the argument doesn't apply to you at this point, but in general we've always had socialized medicine. Before the ACA we provided a health safety net by paying for emergency hospital care, which many people who couldn't afford insurance would use for basic health care.

Byrnzie

yosi said:

This is on topic and very worth reading.


Geoffrey R. Stone

Edward H. Levi Distinguished Service Professor of Law, University of Chicago

What I Told the NSA

Because of my service on the President's Review Group last fall, which made recommendations to the president about NSA surveillance and related issues, the NSA invited me to speak today to the NSA staff at the NSA headquarters in Fort Meade, Maryland, about my work on the Review Group and my perceptions of the NSA. Here, in brief, is what I told them:

From the outset, I approached my responsibilities as a member of the Review Group with great skepticism about the NSA. I am a long-time civil libertarian, a member of the National Advisory Council of the ACLU, and a former Chair of the Board of the American Constitution Society. To say I was skeptical about the NSA is, in truth, an understatement.

I came away from my work on the Review Group with a view of the NSA that I found quite surprising. Not only did I find that the NSA had helped to thwart numerous terrorist plots against the United States and its allies in the years since 9/11, but I also found that it is an organization that operates with a high degree of integrity and a deep commitment to the rule of law.

Like any organization dealing with extremely complex issues, the NSA on occasion made mistakes in the implementation of its authorities, but it invariably reported those mistakes upon discovering them and worked conscientiously to correct its errors. The Review Group found no evidence that the NSA had knowingly or intentionally engaged in unlawful or unauthorized activity. To the contrary, it has put in place carefully-crafted internal proceduresto ensure that it operates within the bounds of its lawful authority.

This is not to say that the NSA should have had all of the authorities it was given. The Review Group found that many of the programs undertaken by the NSA were highly problematic and much in need of reform. But the responsibility for directing the NSA to carry out those programs rests not with the NSA, but with the Executive Branch, the Congress, and the Foreign Intelligence Surveillance Court, which authorized those programs -- sometimes without sufficient attention to the dangers they posed to privacy and civil liberties. The NSA did its job -- it implemented the authorities it was given.

It gradually became apparent to me that in the months after Edward Snowden began releasing information about the government's foreign intelligence surveillance activities, the NSA was being severely -- and unfairly -- demonized by its critics. Rather than being a rogue agency that was running amok in disregard of the Constitution and laws of the United States, the NSA was doing its job.

It pained me to realize that the hard-working, dedicated, patriotic employees of the NSA, who were often working for far less pay than they could have earned in the private sector because they were determined to help protect their nation from attack, were being castigated in the press for the serious mistakes made, not by them, but by Presidents, the Congress, and the courts.

Of course, "I was only following orders" is not always an excuse. But in no instance was the NSA implementing a program that was so clearly illegal or unconstitutional that it would have been justified in refusing to perform the functions assigned to it by Congress, the President, and the Judiciary. Although the Review Group found that many of those programs need serious re-examination and reform, none of them was so clearly unlawful that it would have been appropriate for the NSA to refuse to fulfill its responsibilities.

Moreover, to the NSA's credit, it was always willing to engage the Review Group in serious and candid discussions about the merits of its programs, their deficiencies, and the ways in which those programs could be improved. Unlike some other entities in the intelligence community and in Congress, the leaders of the NSA were not reflexively defensive, but were forthright, engaged, and open to often sharp questions about the nature and implementation of its programs.

To be clear, I am not saying that citizens should trust the NSA. They should not. Distrust is essential to effective democratic governance. The NSA should be subject to constant and rigorous review, oversight, scrutiny, and checks and balances. The work it does, however important to the safety of the nation, necessarily poses grave dangers to fundamental American values, particularly if its work is abused by persons in positions of authority. If anything, oversight of the NSA -- especially by Congress -- should be strengthened. The future of our nation depends not only on the NSA doing its job, but also on the existence of clear, definitive, and carefully enforced rules and restrictions governing its activities.

In short, I found, to my surprise, that the NSA deserves the respect and appreciation of the American people. But it should never, ever, be trusted.

Geoffrey R. Stone; a man who has called for Wikileaks to be prosecuted under the espionage act.

And I notice that he makes no mention of the fact that James Clapper blatantly lied to the Senate Intelligence Committee - a felony.

Oh, and the NSA mass surveillance operations have thwarted zero terrorist attacks.

yosi

Yes, I know you don't like what he has to say, but I'm inclined to believe him more than you or Glenn Greenwald.