NSA

How the NSA Tramples Freedom and Undermines Public Safety

It's time to rein in NSA abuse.

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In their continuous efforts to create the impression that the government is doing something to keep Americans safe, politicians in Washington have misled and lied to the public. They have violated their oaths to uphold the Constitution. They have created a false sense of security. And they have dispatched and re-dispatched 60,000 federal agents to intercept the telephone calls, text messages, and emails of all Americans all the time.

In the process, while publicly claiming they only acquire identifying metadata—the time, date, location, duration, telephone numbers, and email addresses of communications—they have in fact surreptitiously gained access to the content of these communications.

On June 1, one of the three claimed legal authorities for all this, Section 215 of the Patriot Act, expired, as Congress was unable to agree on either its reinstitution or the enactment of a substitute. At the time that Section 215 was about to expire, President Obama, Attorney General Lynch, and FBI Director Comey warned that the NSA's computers would go dark and the American public would be at the mercy of our enemies. Their warnings were nonsense.

The NSA is a military entity that utilizes the services of military computer experts and agents, employs civilians, and hires companies that provide thousands of outside contractors. After nearly 14 years of spying on us—all authorized by a secret court whose judges cannot keep records of what they have ordered or discuss openly what they know—the NSA now has computers and computer personnel physically located in the main switching offices of all telecom and Internet service providers in the United States. It has 24/7 access to the content of everyone's telephone calls, emails, and text messages.

The data amassed thereby is so vast that the government cannot sift through it quickly or effectively enough to stop such notorious events as the Boston Marathon bombings, the Ft. Hood massacre, and the attempted massacre last month outside of Dallas. The Justice Department acknowledged this last month when it revealed that all this spying has not succeeded in stopping any terrorist plots and has not aided any federal prosecutions of terrorism.

Then why do it? Because the feds want to calm American nerves by giving the impression that they are doing something—even though we know that they know that what they are doing fails to keep us safe. They are giving us a false impression. But they owe us the truth, not falsehoods designed to make themselves look like they are doing what they claim. Their spying has failed to enhance our safety.

It also has failed to protect our freedoms. The Constitution requires probable cause as a precondition for all search warrants. That is a level of evidence about the place to be searched or the person or thing to be seized sufficient to induce a judge to conclude that a crime probably has been committed. Without this probable cause requirement, nothing would stop the government from searching and seizing whatever it wants. Yet that is where we are today. The NSA's unconstitutional standard of "government need" reinstitutes the general warrants—search where you wish and seize what you find—which the Fourth Amendment was written to prohibit.

Both the Patriot Act and the Freedom Act, the substitute law enacted by Congress, do away with the probable cause requirement. Both of those laws permit the FISA court to issue general warrants based on the government's needs, rather than probable cause. It is the government-need standard, which is no standard at all, that has resulted in spying on all persons all the time.

When Section 215 of the Patriot Act expired, the NSA's legal (yet unconstitutional) authority to spy did not. The propaganda that its computers were shut down is false. Section 702 of the FISA law and President Bush's October 2001 executive order were and are still valid, and both have been interpreted to unleash the NSA.

Section 702 permits warrantless surveillance of Americans who speak with foreigners, and the NSA has gotten FISA warrants to intercept the calls of the folks to whom those Americans speak, to the sixth degree. That alone encompasses all persons in the United States. Bush's executive order was given to all military intelligence agencies—of which the NSA is but one. It instructed the military to intercept the calls and emails of whatever Americans it needs to listen in upon to enhance safety. That executive order still stands. This is why the hand wringing and false claims that the NSA computers went dark is untruthful. The computers violate our privacy and assault our liberty and fail to enhance our safety, but they are not dark.

Last week, one of the pro-spying politicians was clever, even cute, when he issued the one-liner: "You can't enjoy civil liberties from a coffin." His statement was a craven articulation of failure. The government's job is to keep us free and safe. If it keeps us safe but not free, it has failed to do its job. Today it does neither. I suggest to him Patrick Henry on this: "Give me liberty or give me death."

Which one-liner better embodies American values, history, and traditions?

NEXT: University of Wisconsin concludes there was no misconduct on Prof. Alice Goffman's part [UPDATE: this turns out not to be a response to Prof. Steven Lubet's criticisms]

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  1. The constitution!?!? The constitution sats thst the constitution says whatever Federal EMPLOYEE judges say it says!!It can’t protect you from us in government because THE CONSTITUTION YIELDS ALL ITS AUTHORITY TO US IN GOVERNMENT!!!

    http://youareproperty.blogspot…..r-our.html

    So we are in fact faithful to our oath to support and defend our latest oversight free interpretation of “your” constitution!!!

    1. And we can authorize ourselves to spy on you all we want.

      You have no recourse.

      Soon even more of you will be begging us to further our rape of your freedom.

  2. NapolitaNOOOOOOOOO.

    Completely pointless comment and not meant to be a critique of this article. But after reading the query listicle from a few weeks ago, it’s what comes to mind when I see his name in the byline.

  3. Then why do it? Because the feds want to calm American nerves by giving the impression that they are doing something?even though we know that they know that what they are doing fails to keep us safe.

    The Judge is being naive here.

    1. This is the one speculation that stood out to me as well, Fist. I know the good Judge is very intelligent, so I simply concluded that he was avoiding stating what most of us who are paying attention have deduced from evidentiary material that has leaked out or been exposed during Congressional hearings.

      The other thing that stood out to me is that there were only two questions in the entire article.

      1. Probably, but he could have backed up speculation on their real motives with examples, such as the sharing of data with other agencies for drug cases.

      2. I firmly believe the purpose of the program is to intimidate and blackmail political enemies of the current regime whichever regime that happens to be. It is probably already being used against federal judges and congress critters.

    2. Yeah, they do it because they can. And because FYTW.

  4. “They have violated their oaths to uphold the Constitution.”

    Precisely. And they’ve done it on a grand scale. From what James Clapper has said, it seems NSA is grabbing everything all the time, and this is portrayed not as a collection, but as material “being buffered for possible ingest.” They have years of this stuff in their phony buffer that they shouldn’t have at all.

    They then use the sketchy metadata precedent and the administrative 3-hop rule to get a rubber stamp warrant for phone numbers of anyone they desire to target. Imagine if you were able not only to tap Obama’s phone based on a rule you wrote yourself, but to tap his phone years into the past. It would be the greatest blackmail machine ever invented. How could Cheney resist? And of course he didn’t, as NSA’s Russ Tice pointed out. When Cheney turned NSA on Obama in 2004, he turned Obama into a puppet.

    Expect NSA to make their activities constitutional by giving the SC the Obama blackmail treatment. When that happens, the 4th amendment will be toast. And the republic will be toast (if it isn’t already).

    Why do it? The answer is, for power. Cheney and his gang have created the greatest power machine that ever existed to take control of the most powerful empire that ever existed, and they do it from the shadows and thus never have to explain themselves. They have destroyed the republic from within, and should be tried and hanged for what they have done.

    1. Cheney is under your bed, in the closet and outside your window—-BOO!

      1. For Davis’ post I replaced “Cheney” with “an amoral group of people” and it fit my personal narrative better.

        1. I just replaced ‘Davis’ with ‘Lunatic’ and it made it more sense.

    2. ” When Cheney turned NSA on Obama in 2004, he turned Obama into a puppet.”

      Oh look, all the stuff Obumbles does is Bush’s fault. I knew it!

      1. Jeez, some here can’t follow a sentence from the one end to the other. I said Cheney, not Bush.

        1. Well, yeah. Everyone knows that Katrina was caused by the Halliburton Hurricane Machine with Darth Cheney at the helm.

        2. Would you care to elaborate on how Obama became Cheney’s puppet? I’m doing some research for an update to Jesse Walkers book.

          1. I presume you’ve read what Russ Tice had to say about Cheney (actually his chief of staff, David Addington) using NSA to tap Obama’s phones. But you may not know that Obama went to Bill “Cheney is the best Republican” Kristol and Kristol said, “He came to me to make sure I was supporting his sound policies. Of course, since his sound policies are more like the policies people like me have been advocating for quite a while, I’m happy to support them. He’s a born-again neo-con.” So how did Obama become a born again neocon in secret? Why does he have neocons in his administration? And why did Obama give a no-bid contract to a former Cheney company after he railed against the corruption? Seems to me that was just Cheney rubbing his nose in the dirt. Then, listen to Obama tell Charlie Rose this about the NSA domestic spying: “Some people say, ‘Well, you know, Obama was this raving liberal before. Now he’s, you know, Dick Cheney. Dick Cheney sometimes says, ‘Yeah, you know? He took it all lock, stock, and barrel.'”

            I expect if someone were to go back to the 2008 campaign, they could nail the point where the blackmail took place by the change in Obama’s rhetoric, because no way would Cheney have waited until Obama was elected to blackmail him. If Obama wouldn’t go along, Cheney would have to destroy him even before the primaries.

    3. When Cheney turned NSA on Obama in 2004, he turned Obama into a puppet.

      You know, it could be that Obama is just a lying craven sack of shit who never meant a word of all the “hope and change” horseshit he was spouting.

      In fact, let’s apply Occam’s Razor to this. Which is more plausibe: that Darth Cheney is some kind of evil puppet master Sith Lord pulling all the strings and blackmailing the poor, noble Barack Obama into doing his evil bidding, or Obama is just another in a long line of lying mendacious cunts, like virtually every other professional politician.

      I’m no fan of Dick Cheney either, but not every bad thing that has happened or ever will happen is the result of his evil machinations. At some point, you have to hold the current POS accountable for his own actions.

      1. Occam’s Razor only applies to the scientific world. In the political world, conspiracies and power struggles are more likely than not. And in this case, Cheney’s use of the NSA to spy on everyone with power was perfectly in keeping with his known character (or lack of it), with his goals, and with the results we see. Thus Occam’s Razor says this is the simplest explanation.

  5. I listened to a speech the Judge gave a while back where he said that he would probably die when his time comes, in his own bed, surrounded by loved ones. He told the 20 year olds it’s likely they would die in the public square.
    I thought this just Joysey hyperbole at the time, but damn if things aren’t unrolling in a way to make that statement prescient.

    1. To be fair, it’s more likely the Judge will die at 3 am in a geriatric ward, his mind addled and confused by a morphine drip, his only companion for his journey to the other side being a Filipina LNA, and his last words being “Graaheugrmmm”.

      1. Who doesn’t want to go out that way? Hopefully he’ll randomly generate some hate speech with dying breath. “Rosebud, the faggot”.

        1. Well, for one, plan on being addled and confused by the Filipina LNA and having my companion be the morphine drip.

          1. Aren’t you forgetting one little thing? *ahem, death bed conversion*

          2. I think you need to specify a cis-gender, female Filipina, HM, while you are still of sound mind.

            1. What’s more sound than a binge of narcotics and ladyboys?

              1. under age Eastern European girls would be more upscale.

  6. one of the pro-spying politicians was clever, even cute, when he issued the one-liner: “You can’t enjoy civil liberties from a coffin.”

    “Or from a prison, if you catch my drift.”

    1. “You can’t enjoy civil liberties from a coffin.”

      You can’t enjoy civil liberties if you do not fight for them because there is always someone who wants to shit on them, be that crazy jihadists or government goons. I would rather fight the first kind. They are easier to spot and easier to defeat.

      1. “If you will not fight for right when you can easily win without blood shed; if you will not fight when your victory is sure and not too costly; you may come to the moment when you will have to fight with all the odds against you and only a precarious chance of survival. There may even be a worse case. You may have to fight when there is no hope of victory, because it is better to perish than to live as slaves.”
        – Winston Churchill

  7. You can’t enjoy civil liberties from a coffin.

    The concept of the safety/freedom equation being zero-sum is well understood and it’s obvious which side of the ledger this guy prefers.

  8. Lynx are late. Must be ENB’s turn.

  9. Thank you Mr. Napolitano, sometimes I think the mere mention of “terrorists” can obliterate a thousand neurons from people’s brains. Throwing out fear mongering epithets without any knowledge of the intricacies of the machinations of the system is well–counterproductive.
    If we’re all going to be stupid , let us base our stupidity on the facts. Funny isn’t it, our immediate vulnerabilities and threats actually come from bloated bureaucracy . Bless his soul…isn’t that how we inherited Snowden, that was one bitter pill I didn’t cringe when I swallowed .

  10. “You can’t enjoy civil liberties from a coffin.”

    These are the words of a complete pussy. “WAAAHHHH!!! Pwotect me merciful god govewnment!!! Pwotect me fwom the big bad tewwowists!!1 WAAAHHHH!!!”

    Fucking pathetic. Whichever asshat said that (I’m guessing Lindsey Graham) should go eat a bag of dicks.

    1. It was the governor of my state…Chris Christie.

  11. Check out Wikipedia’s info on the Star Chamber. It might prove instructive.

  12. She is not a moderate. She is an amoral crap weasel that will say and do anything to continue to suckle on the body public. then check all report news this way…. http://moourl.com/gjftp

  13. You want to shut down the NSA?
    Repeal the National Security Act of 1947!
    Of course, that act also created the Air Force as a separate service, created the DoD, and the CIA.
    So, a lot of pencil-sharpening is in order.
    We tried being “gentlemen” about reading the mail of others, and that didn’t turn out so well.
    Perhaps our problem is that the people we’ve put in charge – starting right from the top, and at both ends of Pennsylvania Avenue – haven’e been well suited for their positions.

  14. Considering the ruling from the 2nd Court of Appeal, is it possible for those targeted by the illegal surveillance to file lawsuits? Or will the Secret Squirrel Double 007 gobmit hide behind the argument “that those individuals have no standing”?

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