Snowden, Privacy Rights, The 4th Amendment, The Patriot Act, and National Security - Can They Co-exist?
EDWARD J. SNOWDEN, HERO OR TRAITOR?
A TRAITOR IS AMONG US
EDWARD J. SNOWDEN, IN JUNE 2013, RELEASED TOP SECRET documents to the British paper The Guardian and the Washington Post. Snowden was an employee of Booze Allen Hamilton, a very large beltway bandit consulting firm, who was under contract with the National Security Agency (NSA) to provide telecommunications and intelligence analysis. Somehow he got his hands on a Top Secret Foreign Intelligence Surveillance Act (FISA) court document authorizing the acquisition of telephone record information from the telecommunication giant Verizon, a document that supposedly he had no reason to be involved with, or have access to, and where only 30 - 40 people had legitimate access. His motives appear to be clear, at least at first glance. He has even gone out of his way to protect fellow intelligence agents by outing himself so quickly. He claims the only secrets he will release, it seems there is more to come as of this writing, are those which 1) he feels, as judge and jury, are against the Constitution and 2) won't do real harm to the Nation. Snowden claims his intent is to rekindle the discussion of how much of our personal 4th Amendment rights we must relinquish in the name of national security.
I say rekindle because America has had this conversation back during the Vietnam War with the release of the Pentagon Papers, and again in the 1970s with the Watergate mess, and once more in the mid 2000s with the misuse of the Patriot Act by the Bush administration for doing much the same thing as is being done today but without the benefit of the FISA court being involved. Those, of course, aren't the only stories; there are a few more about the FBI going back to the 1920s, misconduct by the predecessor of the CIA during WW II; there is quite a list.
The question is, do we have another today? Edward Snowden certainly thinks so, but Congress does not for they approved the program that is on the front page at the moment. That isn't all Snowden released, however. There was some sort of PowerPoint presentation about an operation called Prism, for which I cannot find very much about yet. The most common story so far is that the presentation is a phony as it does not adhere to the format those types of presentations which are prepared in at the NSA. Only time will tell.
Watch Edward Snowden's Interview
THE ACQUISITION OF PHONE RECORDS
THERE IS NO QUESTION EDWARD SNOWDEN IS GOING TO GET HIS WISH; the public debate over the public's right to privacy and the need to breech that right in order to protect the Nation from attack. Where is that balance? We are going to hear a lot of opinions, but not mine yet for I am not sure. Maybe I will figure it out as I write this; perhaps during the comment session, if one develops, but right now, I don't know where I stand as there are a lot of variables. Of course, I don't make it easy on myself for as most of my readers know, I am a social moderate, sometimes verging on liberal, but I proudly served my country in one capacity or another from 1971 to 2008. As a consequence, when it comes to national security, my tendency is center-Right, or just plain Right; talk about a split personality.
As you may know, the role of the CIA/NSA/DoD Intel organizations is supposed to be limited to foreign threats while domestic problems are the purview of the FBI and Secret Service. In the 1950s - 1970s, the gray area where the two realms intersected was, relatively speaking, fairly small. Since the 1970s and the blow up in the Middle East, and then the demise of the Soviet Union in the 1980s a sea change occurred in who we were fighting. No longer was it definable nation-states with known borders; instead the threat is amoeba-like political and religious groups with no known borders. As a consequence, where the role of the CIA and its brethren and that of the FBI began became extremely blurred, especially so after Sept 11, 2001.
Sympathizers to dangerous foreign-born causes are everywhere outside our national borders as well as inside them and the participants may or may not be U.S. citizens. And there is the rub, isn't it. Let's say one of the cell phones found in bin Ladin's Pakistan abode contained numbers of U.S. phones. What apparently takes place, which Snowden objected to, is a request goes to the FISA court for permission to get a data dump from Verizon, AT&T, and others for all of the phone records associated with that telephone number; but they didn't stop there. They also wanted each phone record of any number associated with the original number, and then each phone record of numbers from that link, and so on. Then they start mining that data looking for patterns that may lead them to other terrorists. Keep in mind the CIA has no clue yet whether these phone numbers belong to U.S. citizens or not, but obviously most of them do.
Where is the FBI in this picture, my guess is, out in the cold, at least at the moment. Now, I strongly suspect they are brought in if anything develops because every terrorist threat that has been thwarted in the U.S. was done by the FBI, not the CIA. Also, it is important to keep in mind for this discussion that it has not just been one or two attacks that have been stopped, but dozens, and those are the ones that made the papers. How many more there were which we weren't told about is anybody's guess; I am not sure I want to know.
It is that scenario which I understand are the CIA/NSA are working under, i.e., foreign developed intelligence of domestic phone numbers, and the chase is on. Is there more to the story, its anybody's guess who is not in the know; but that is what we have right now as it pertains to phone records.
IS THE NSA READING OUR E-MAILS
WELL, SOME FOR SURE; A LOT - PROBABLY NOT, so says a Washington Post article and all of the tech companies listed in the PowerPoint charts allegedly about the NSA Prism program. The long and the short of it is the best the Post can determine is that NSA goes to a tech company with a FISA court order asking for specific information on specific a individual(s). Once the company's lawyers give the nod, they transmit the data to the NSA.
It is in this method that the NSA apparently acquires and reads someones e-mail and other postings that are otherwise private. It doesn't look like there is a wholesale invasion of privacy as all of the Internet hype seems to suggest.
SO, WHAT ABOUT PRIVACY RIGHTS?
TO START WITH, WHETHER HE IS A HERO OR A TRAITOR, Snowden needs to be prosecuted, and if found guilty, put away for many, many years. He says he is prepared to be a martyr for his cause and he understands he broke the law to make his point. Should the law me modified? Maybe. But it is the law now and he broke it big-time, so he should pay the price!
But, what of the discussion he succeeded in starting? Did the NSA go too far? Right now the polls appear to say 'no', the NSA did not go too far; that this type of loss of privacy is necessary to protect our country. But, there is an assumption in that statement ... "loss of privacy". One is assuming your telephone number is private and that you have a reasonable expectation of privacy of what numbers were called from your number. A reasonable question might be, "Why should you expect the fact that you talked to someone else, or at least tried to, to be private?" (Remember, I am just asking the question, I haven't formed an opinion yet.) Would you expect you walking up to your neighbor's door to talk to them to be private, or is that the same thing?
In the latter case, you are out in the open for anybody to see including somebody who may be surveilling your for some reason. I think any court would find you have no expectation of privacy in this case. But, in the former case, your telephone call is contained in a third party computer somewhere. So let's take that this idea a bit further and say your neighbor is a suspected terrorist and is foreign to boot (you know he is foreign, you don't know he is a terrorist, however) and the CIA is surveilling him and sees you go into his house. Hmmmm, they say, "we better watch that guy (you) as well". So they start tracking who comes and goes from your house and the other houses you go to and they keep expanding the search, but only watching and keeping records of what they see. Would you consider that an invasion of your privacy as the CIA (probably the FBI now) attempts to find other terrorists in your neighbors cell? Would the courts? Remember, no warrants from a regular court or FISA are required to conduct this surveillance operation, just a lot of money.
As scary as that picture is (to me at least), my guess is most Americans would accept this as necessary in the War on Terror and no real loss of privacy. So, how is that different from what the NSA is doing with the telephone records, other than needing authorization from FISA to obtain the information from a private firm? I don't know that it is; what do you think?
THE BIGGER QUESTION OF WIRETAPPING
THE LARGER QUESTION FOR ME is regarding actually listening to conversations, true wiretapping. Here the blurry line between foreign intelligence gathering by one set of government agencies and domestic intelligence gathering by another becomes critically important because of the 4th Amendment and the laws governing wiretapping.
The reason it is so gray is the FISA definition of a terrorist, a legitimate target of US foreign intel agencies like the CIA. According to FISA, the definition of an Agent of a Foreign Power is:
- Anyone, whether a U.S. person or not, who engages in or prepares for acts of international terrorism or sabotage
Up until this bullet, most of the definitions omitted "a U.S. Person" or specially prohibited it. But this clause opens the door to domestic spying by the CIA, NSA, and other such organizations. The provision is that to conduct such operations, they must be approved by the FISA court, which consists of eleven judges appointed by the Chief Justice of the Supreme Court. Only one judge, however, hears a given application for surveillance and it is like a grand jury in that only the government's side is represented. The court may allow amici curiae, friend of the court, briefs, if it so chooses.
Like grand juries, the government has been very successful at winning its cases (getting surveillance warrants granted). According to a Wikipedia article, out of 33,897 cases heard from its inception in 1978 through the end of 2012, only eleven have been rejected, all but maybe one (in 2009) during the Bush administration. Based on a study by journalist Joshua Micah Marshall, the following results have been seen during the first five years of the Bush Administration. The remainder of the information comes from the Electronic Privacy Information Center.
FATE OF REQUESTS TO THE FISA COURT
1 request modified out of 1012 granted
2 requests modified out of 984 granted
2 requests modified out of 1228 granted
79 requests modified out of 1724 granted
94 requests modified out of 1758 granted
61 requests modified out of 2072 granted
73 requests modified out of 2176 granted
86 requests modified out of 2370 granted
2 requests modified out of 2083 granted
14 requests modified out of 1320 granted
0 requests modified out of 1579 granted
0 requests modified out of 1745 granted
40 requests modified out of 1855 granted
As you can see, the FISA court has been busy handing out warrants for information of all sorts since 9/11; prior to 2000, the number of warrants was generally less than 800 per year. One cannot find out how many have been for wiretaps of one sort or another of U.S. citizens totally within U.S. borders. Most of the rules our spies must follow have a foreign connection component to them, meaning one or both ends of the transaction must be beyond our borders; but the operative word is "most".
Then we have the "Agent of a Foreign Power" definition mentioned above. This gives the FBI and other organizations the ability to request wiretaps, including "roving" wiretaps on American citizens totally within the national boundaries via the FISA secret courts; the declassified number of roving wiretaps authorized under FISA up to March 2005 is 49, according to FBI testimony to Congress. Very scary stuff!
But is it? Wiretapping, with probable cause and a court order, has been around forever in America and I believe most think it is an appropriate invasion of privacy, so long as the rules to be followed are reasonable AND they are actually followed professionally by all involved, especially the judge. For the most part, however, even though most of these domestic wiretaps are close hold within the police and judicial community, they aren't national secrets; the FISA court orders are national secrets, which can be a completely different ballgame.
It isn't all that difficult to investigate, after the fact of course, whether standard wiretaps were legally obtained, defense counsels challenge them all of the time. But, you can't do that with FISA warrants, so it all boils down to trust, which the public has very little of for any branch of the government today. The ultimate protection is the FISA law itself and what it says can and cannot be done. After that comes ones belief that those who use it, follow the law and that the judges selected by the Chief Justice fairly administer it. From there, oversight rests with the President and with the Intelligence Committees of both Houses. Except for the law itself, every step of this process is a closely held (until Snowden) secret that only a few know about.
But what is the alternative? Snowden misquoted Benjamin Franklin when he said
"Those who surrender freedom for security will not have, nor do they deserve, either one"
What Franklin actually said is:
"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."
Those two statements clearly do not mean the same thing in terms of the scope of liberty and the degree and permanence of security. If one is to use Franklin's philosophy, one must use it in the way he wrote it, not some useful variant morphed to fit your particular purpose.
The question, then, is what is an "essential" liberty in our context and how "temporary" is the safety we are considering preserving? It is the consensus this nation comes to regarding these questions that will determine if the use of the techniques FISA is allowing or the DNA databases local communities are now starting to maintain without outside regulation or the many other ways our privacy is being impinged in order to protect us from an increasingly dangerous world.
Is Edward Snowden a Traitor?
HERE IS THE LEGAL DEFINITION OF TRAITOR:
"Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.
Based on that definition, I must conclude Snowden is not a traitor! Did he break the law, clearly, but it doesn't raise to the legal definition of treason. He was not trying to support any enemy of the United States; just the opposite, he was trying to protect the people of America from a run-away intelligence program and a rubber stamp of the secret FISA court.
Beyond his revelations of the Intelligence Community illegally surveilling U.S. citizens and embarrassingly spying on friendly foreign leaders. This link documents the 10 biggest revelations from Snowden's file: http://mashable.com/2014/06/05/edward-snowden-revelations/#CaApoURHgiqL
WHERE IS SNOWDEN?
7/13/2013: Currently Snowden is holed up somewhere in a Moscow airport. A few weeks ago, he left Hong Kong for Russia where he sought asylum. While Russia won't give him back to us, they aren't letting him in either. Instead, they are allowing him to seek asylum elsewhere. He has applied to over 100 countries and so far only Bolivia, Nicaragua, and Venezuela have accepted; apparently all of the rest have rejected him. As of two days ago, Snowden reapplied to Russia for temporary asylum; "temporary" I am supposing so he can get out of the airport.
So, do you think my house visiting scenario is OK? Or, has the FBI gone too far.See results without voting
IS EDWARD SNOWDON A HERO OR A TRAITOR?See results without voting
ARE THE NSA'S PHONE RECORD REQUESTS OK WITH YOU?See results without voting
DEMOGRAPHIC SURVEY #1
Do you consider yourself more closely aligned withSee results without voting
DEMOGRAPHIC SURVEY #2
Are youSee results without voting
HOT OFF THE PRESS, ANOTHER PRIVACY ISSUE
ON JUNE 3, 2013, THE SUPREME COURT handed down a decision in MARYLAND, PETITIONER v. ALONZO JAY KING, JR. that made legal the collection of DNA samples upon arrest for serious crimes. It was a 5-4 decision, but not with the usual cast of characters nor in the way you might expect. On the majority were Justices Kennedy, Thomas, Roberts, Alito, and Breyer while the minority contained Justices Scalia, Sotomayor, Ginsburg, and Kagan, go figure.
The issue is this, and it is a very critical one; can the State take and maintain for future use DNA evidence from an arrestee? The court decided the State has that authority; here is the Cliff Note version: (the quotes are from the actual decision document)
- In 2009, King was arrested on felony assault charges and, in accordance with the Maryland DNA Collection Act, a DNA swab was taken.
- This DNA was run through the Combined DNA Index System (CODIS) (think CSI) and a match was found with an unsolved rape.
- King was convicted of the rape and appealed on the grounds his 4th Amendment rights had been violated with the collection of the swab.
- The Circuit Court judge found Maryland's law Constitutional
- The Maryland Court of Appeals, however, did not.
- The Supreme Court held that the taking of a DNA swap is no different than taking a fingerprint or a photograph (I would have issue with the photograph part)
- They reasoned "DNA testing may 'significantly improve both the criminal justice system and police investigative practices,' " as well as " ... the fact that the intrusion is negligible is of central relevance to determining whether the search is reasonable,"
- The DNA sample, however, may not be added to the DNA database until after the arrestee has been arraigned and must be destroyed if not convicted
- Further, only the identifying markers may be kept in the database and any information useful to insurance companies and the like must be deleted.
I would encourage you to read Justice Scalia's deserting opinion for he almost has me convinced the Majority has it wrong. Scalia's main points are:
- The DNA swab IS a search of a person
- The DNA is not and cannot be used for purposes of identifying the arrestee, one of the main foundations for the majority opinion
- Taking DNA is not like searching a person for weapons, drugs or other such items, which can be done incident to the arrest
- Taking DNA in the manner it was taken IS a suspicionless-search for ordinary law-enforcement purposes.
- Such suspicionless-searches ARE an abridgment of the 4th Amendment's guarantee from unreasonable search and seizure.
- Finally, DNA swabs are NOT like fingerprints in that fingerprints main purpose IS for identification.
Scalia's presentation was extremely readable, cogent, sarcastic, and humorous; it is definitely worth clicking on the link I provided above. My mind had been made up, from a pragmatic point of view, that the taking of and maintaining DNA samples during an arrest for a serious, and I am guessing they mean felony, crime is right and legal. Now, I am not so sure. (BTW, did you know the Court has never ruled on the Constitutionality of fingerprinting.)
DID THE SUPREME COURT GET IT RIGHT IN ALLOWING THE COLLECTION OF DNA AFTER AN ARREST FOR A FELONY?See results without voting
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