Friday, October 11, 2013

No American Ought to be Complacent About NSA Mass Spying - Even with Gov't Shutdown

"I know the capacity that is there to make tyranny total in America. And we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision so that we never cross that abyss. That is the abyss from which there is no return.” - Sen. Frank Church, referencing the NSA in 1975.

"Those who would sacrifice an essential liberty for the purpose of a temporary safety deserve neither liberty nor safety."- Benjamin Franklin

According to assorted complaints from the NSA head spooks, including James Clapper and others, NSA hasn't been able to adhere to their full mass-spying mandate on account of the government shutdown. And so, we keep hearing the same complaints trotted out that we heard after Ed Snowden exposed this indiscriminate spying: "We're not able to protect Americans as long as this goes on". Of course, this doesn't even pass a basic laugh test. A number of former NSA people have made it clear this extreme 'haystack' approach - trying to find one "needle" to keep all of us safe - is pure bollocks.

Now, as reported in the UK Guardian we learn that the author of the Patriot Act, James Sensenbrenner, is up in arms and outraged at how NSA expanded the language in the original act to expand the FISA basis for searches. This conservative Republican who co-authored the Patriot Act is preparing to unveil bipartisan legislation that would dramatically curtail the domestic surveillance powers it gives to intelligence agencies.

Sensenbrenner's imminent bill in the House of Representatives is expected to be matched by a similar proposal from Senate judiciary committee chair Patrick Leahy, a Democrat. It pulls together existing congressional efforts to reform the National Security Agency in the wake of disclosures by whistleblower Edward Snowden. So again, we must honor and offer kudos for Snowden for exposing this - else we'd never have known about it - and nothing would have been done. So yeah, Snowden deserved the "Integrity in Intelligence" award he just received - probably the only one in government who deserves it.

Certainly Clapper doesn't! According to the Guardian, Sensenbrenner isn't taking Clapper's earlier lies lightly. He's  called for the prosecution of Obama's director of national intelligence,  who admitted misleading the Senate intelligence committee about the extent of bulk collection of telephone records.   According to Mr. Sensenbrenner:

"Oversight only works when the agency that oversight is directed at tells the truth, and having Mr Clapper say he gave the least untruthful answer should, in my opinion, have resulted in a firing and a prosecution,"

Certainly, if Obama had any balls at all, he ought to have fired Clapper on the spot. But then, I don't know, since he never prosecuted the Bushites for their war crimes (including torture and launching an illegal pre-emptive war), or went after Wall Street's denizens the way he should have, perhaps he is simply lacking the intestinal fortitude to make the hard decisions. I may be wrong, but I am - truthfully - not sanguine about any upcoming deals he plans to make with Repukes to keep the gov't open.

Or maybe Obama is terrified of the pseudo-liberal twerp, Dianne Feinstein. The Guardian notes that while Clapper has apologized for the incident, NSA reformers expect a fierce backlash to their proposals to rein in his powers in future. Sensenbrenner again:

"I anticipate a big fight, and Senator Feinstein has already basically declared war. If they use a law like Senator Feinstein is proposing, it will just allow them to do business as usual with a little bit of a change in the optics."

Why should Feinstein "declare war"? Hell, her hubby is one of the NSA contractors doing the spying, as the Guardian disclosed months ago! So, obviously, she has a vested interest in keeping this thing going the way it is, not in changing it. Which is another reason she needs to be replaced on the Senate Intelligence Committee: conflict of interest.  Another thing that bugs me: Why have the lazy U.S. media not exposed this?

Meanwhile, Sensenbrenner's twin effort with Leahy to introduce legislation via the House and Senate judiciary committees is partly intended to circumvent such opposition among intelligence committee leaders.  But make no mistake, without a leash being put on Feinstein, it will be a brutal drawn out battle and there is no assured positive result. This is also why Americans can't allow themselves to become complacent but ought to be fax blasting or emailing their reps to get this thing done.

Fortunately, there is plenty of support among other intelligence committee members. Democratic senators Ron Wyden and Mark Udall, who were first to seize on Snowden's disclosures as a way to make public their longstanding concerns, recently teamed up with Republican Rand Paul and colleague Richard Blumenthal to propose similar reforms of the NSA in their own bill.

Still, ordinary Americans need to care and can't let their guard down by pabulum from the spooks. By now, most people are aware that the NSA collects massive amounts of information on ordinary Americans. NSA Chief Keith Alexander would tell you that the government must collect the entire haystack to find the needle. But what happens to the rest of the haystack – the information about law-abiding citizens that gets swept up under ever-expanding collection authorities?

You may not want to know. In theory according to one Guardian columnist, the agencies involved in mass spying are obligated to separate the "needles" from "haystacks". In practice? Not so much.  Americans' communications are supposed to be destroyed as soon as possible, but they can be kept for up to six years to see if they meet certain criteria, according to recently declassified guidelines (pdf). Metadata about nearly every phone call made within the United States, kept in another NSA storehouse, can be saved for five years.

You haven't seen the worst, and a recent New York Times report revealed that the NSA keeps a wide range of information about Americans' communications for up to five years in online databases and another ten years "offline for 'historical searches'".

In addition, many other government agencies retain information about innocent Americans, according to a new report from the Brennan Center for Justice. Take the Federal Bureau of Investigation. As its mission transformed after 9/11 from crime-solving to terrorism prevention, the bureau dramatically expanded its legal authority to gather information about Americans with no basis for suspicion. At the same time, few if any additional restrictions were imposed on its powers to keep and share that information.

Today, an FBI agent can open an intrusive investigation with no reason to suspect criminal activity, and any resulting information can be kept for 20-30 years, even if it has no relationship to the investigation. Similarly, the FBI keeps so-called "suspicious activity reports" that are determined to have no relevance to terrorism – but may reflect Americans' constitutionally protected speech or other activities – for 30 years in a widely-accessible database.

Meanwhile, the National Counterterrorism Center, established in the years after 9/11 to serve as a central repository for terrorism-related information. The center issued guidelines last year allowing it to keep and search non-terrorism databases of Americans' information for up to five years, a ten-fold increase over the previous limit.

Why should we care that the government may keep and share information about us? If the government is only looking for terrorists, the vast majority of us surely have "nothing to hide".

But the government's broad sweep for information can land innocent Americans on watchlists from which it is difficult, if not impossible, to extricate themselves. Furthermore, history teaches that the accumulation of personal information about law-abiding citizens carries tremendous potential for abuse – including harassment of minorities, political enemies, and social activists.

NO American ought to put up with such clear 4th amendment violations!

Sensenbrenner, meanwhile, has rightly fulminated at how NSA's spooks have expanded the original definitions beyond their intended bounds. He told The Guardian:

"We had thought that the 2006 amendment, by putting the word 'relevant' in, was narrowing what the NSA could collect. Instead, the NSA convinced the Fisa court that the relevance clause was an expansive rather than contractive standard, and that's what brought about the metadata collection, which amounts to trillions of phone calls."

While the dissemblers in NSA and elsewhere have pointed to this 4th amendment- violating approach as the only way to reliably get data and "keep us safe". Sensebrenner, however,  claimed that NSA director general Keith Alexander only pointed to 13 possible suspicious individuals found through this method during his recent Senate testimony. According to Sensenbrenner.

"The haystack approach missed the Boston marathon bombing, and that was after the Russians told us the Tsarnaev brothers were bad guys,"

Make no mistake that none of this is tolerable. No American ought to turn a blind eye if he or she in any way embraces the Constitution.  More fundamentally, we ought to appreciate that keeping information about ordinary Americans "just in case" upends the traditional relationship between a democracy and its people. It effectively establishes a presumption that citizens are potentially guilty until proven innocent, and that the government has the right – even the responsibility – to stockpile information that may eventually prove their guilt.

In other words, it paves the way to a totalitarian fascist state. Thanks to Snowden we may have averted this future, but an immense political battle remains - and no one ought to relax their guard until our government is returned to its normal respect for our Constitutional protections.


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