Tag: Edward Snowden

No, There is No Blood On Snowden Hands

The director of the CIA is claiming that the attacks in Paris are at least partially the fault of Edward Snowden:

In a pair of public appearances this week, CIA Director John O. Brennan made clear that he blames leaks by former intelligence contractor Edward Snowden for enabling terrorists to evade detection.

“Because of a number of unauthorized disclosures, and a lot of hand-wringing over the government’s role in the effort to try to uncover these terrorists,” Brennan said, the CIA and others agencies have lost use of critical tools needed “to find these terrorists.”

Brennan’s assertion has become a refrain in the two years since Snowden exposed details about a range of U.S. surveillance programs. And former CIA director R. James Woolsey went further, saying on Sunday, “I think Snowden has blood on his hands from these killings in France.”

I guess this was to be expected. Ever since Snowden revealed the scale of the NSA’s domestic spying program, our government has been trying to blame him for … well, everything. But even the WaPo’s coverage is deeply skeptical:

The revelations that were the source of greatest controversy involved programs that would likely have been of little value in disrupting the Paris plot, experts said. The National Security Agency’s collection of data about the times and durations of billions of domestic phones calls was not designed to pick up calls entirely outside the United States.

A second program that relied heavily on cooperation from companies including AOL, Microsoft and Google was aimed at intercepting e-mail and phone calls between foreign operatives and individuals in the United States. Nothing has changed since that revelation to restrict the NSA’s ability to sweep up communications exclusively among foreigners, as was apparently the case for the plot in France.

“Aspiring terrorists already knew the U.S. government was doing everything it could to track and monitor their communications,” said Jameel Jaffer, the deputy legal director of the American Civil Liberties Union. “What Snowden disclosed was the astonishing extent to which the government’s surveillance power had been turned on ordinary citizens. The CIA director knows this. He’d just rather we talk about Snowden’s disclosures than about the intelligence community’s failures.”

Glenn Greenwald, Snowden’s amanuensis, makes similar points in his detailed response, pointing out that the FBI itself was warning about terrorists avoiding e-mail and electronic communications as early as 1997. Osama bin Laden did not use electronic communications but used couriers precisely because he was concerned that US electronic intelligence was too good.

Moreover … and this is important to repeat … Snowden’s revelations were not about our ability to spy on terrorists. What he revealed was mass domestic surveillance of Americans, almost all of which has been used to help the DEA and the IRS pursue criminal charges without all that pesky fourth amendment stuff.

So why would the CIA director be spewing this line of bullshit? Why would he be spewing it before the bodies are even cold? Two reasons. One, to cover up his own incompetence. Greenwald again:

For most major terror attacks, the perpetrators were either known to Western security agencies or they had ample reason to watch them. All three perpetrators of the Charlie Hebdo massacre “were known to French authorities,” as was the thwarted train attacker in July and at least one of the Paris attackers. These agencies receive billions and billions of dollars every year and radical powers, all in the name of surveilling Bad People and stopping attacks.

So when they fail in their ostensible duty, and people die because of that failure, it’s a natural instinct to blame others: Don’t look to us; it’s Snowden’s fault, or the fault of Apple, or the fault of journalists, or the fault of encryption designers, or anyone’s fault other than ours. If you’re a security agency after a successful Terror attack, you want everyone looking elsewhere, finding all sorts of culprits other than those responsible for stopping such attacks.

This need to deflect blame is especially acute when it comes to ISIS, which arose from the disbanded Iraqi armed forces, took advantage of the vacuum created by Bush’s invasion and Obama’s retreat, has been empowered by our stupid decision to throw in against Assad because we hoped that “moderates” would appear, and drawn support both from our “allies” in the region and our own lack of concern of where weapons provided to anti-Assad forces ended up.

There’s another another reason. NYT:

American and French officials say there is still no definitive evidence to back up their presumption that the terrorists who massacred 129 people in Paris used new, difficult-to-crack encryption technologies to organize the plot.

But in interviews, Obama administration officials say the Islamic State has used a range of encryption technologies over the past year and a half, many of which defy cracking by the National Security Agency. Other encryption technologies, the officials hint, are less secure than terrorist and criminal groups may believe, and clearly they want to keep those adversaries guessing which ones the N.S.A. has pierced.

Some of the most powerful technologies are free, easily available encryption apps with names like Signal, Wickr and Telegram, which encode mobile messages from cellphones. Islamic State militants used Telegram two weeks ago to claim responsibility for the crash of the Russian jet in the Sinai Peninsula that killed 224 people, and used it again last week, in Arabic, English and French, to broadcast responsibility for the Paris carnage. It is not yet clear whether they also used Telegram’s secret-messaging service to encrypt their private conversations.

(Actually, it appears that the terrorists used unencrypted SMS.)

There has been an enormous push from “security experts” to pre-emptively cripple digital encryption methods by demanding “back doors” for the government that would essentially render encryption useless. For the past few years, companies that support and provide digital encryption have been outright accused of aiding and abetting terrorism. And now the security state supporters have found an actual terrorist attack to pin on the door of companies that provide encryption, regardless of whether encryption was involved or not.

But encryption does not destroy the government’s ability to stop terrorists. They can still use human intelligence assets. They can still track metadata, they can still … maybe … answer the phone when the relative of a guy with a bomb in his underwear tries to warn them. They can still use Patriot Act powers. What they can not do is snoop through everyone’s e-mail in the hopes that they’ll catch a tax dodger, a drug dealer or, once in a blue moon, maybe a terrorist.

The encryption debate is currently at high heat. Obama has, to his credit, resisted efforts to demand back doors to encryption and Congress has been reluctant. What Brennan is doing is trying to exploit a tragedy to bypass this debate and expand his power.

We’ve been here before. In the 1990’s, our law enforcement agencies sought the power to have warrantless wiretaps, roving wiretaps, sneak-and-peak raids and other surveillance methods to use in pursuit of the War on Drugs. The Republican Congress refused to give them those powers because they believed they violated the Fourth Amendment. After 9/11, before the bodies were even cold, the CIA and FBI insisted that this was a the reason 9/11 happened; that had Congress given them those powers, they would have prevented it.

It was bullshit, of course. As we later found out, both agencies ignored critical pieces of evidence. They’d also taken an overzealous view of “the wall” between the agencies and refused to share information with each other. But the CIA and FBI were not actually that interested in how 9/11 happened. What they were interested in was getting the surveillance powers they had craved for so long. Americans were scared and the agencies cravenly exploited that fear to get the Patriot Act (Bob Barr, a sponsor of the Patriot Act and now opponent, has a good segment on this in an episode of Penn and Teller: Bullshit!). They then went on to use those powers to … pursue the War on Drugs.

Now we’ve had another awful terrorist attack. And the same leaches who exploited 9/11 to weaken our civil liberties now want to exploit Paris to weaken them again. To hell with them. To hell with them and their security state. To hell with them dancing in the blood of 130 dead Parisians. They were granted the powers they demanded after 9/11 and abused them. They shouldn’t get another bite at the apple of our liberty.

And here’s my challenge to supporters of the security state, Republican or Democrat. If you really think that our civil liberties are outdated or dangerous … if you really think that we shouldn’t mind these intrustions if we have nothing to hide … then you first.

Seriously. Put every e-mail you send on a public server so we can all look at them. Every single one. Broadcast your meta-data on a website so we can see exactly what you’re up to at all hours. Record your phone conversations … every one … and put them on YouTube. Show us every text message, tell us about everyone you meet, report every conversation. Because if you’re going to smear the blood of Paris on your face and demand that rest of us surrender our privacy, I want to see you leading by example. Show us that you have nothing to hide. Then … maybe … we’ll consider letting you snoop around our affairs.

The Clemency Question

The NYT has run an op-ed calling for Edward Snowden to be granted clemency or a plea deal so that he can return to the United States. While acknowledging that he broke the law, they argue:

Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service. It is time for the United States to offer Mr. Snowden a plea bargain or some form of clemency that would allow him to return home, face at least substantially reduced punishment in light of his role as a whistle-blower, and have the hope of a life advocating for greater privacy and far stronger oversight of the runaway intelligence community.

In retrospect, Mr. Snowden was clearly justified in believing that the only way to blow the whistle on this kind of intelligence-gathering was to expose it to the public and let the resulting furor do the work his superiors would not. Beyond the mass collection of phone and Internet data, consider just a few of the violations he revealed or the legal actions he provoked:

■ The N.S.A. broke federal privacy laws, or exceeded its authority, thousands of times per year, according to the agency’s own internal auditor.

■ The agency broke into the communications links of major data centers around the world, allowing it to spy on hundreds of millions of user accounts and infuriating the Internet companies that own the centers. Many of those companies are now scrambling to install systems that the N.S.A. cannot yet penetrate.

■ The N.S.A. systematically undermined the basic encryption systems of the Internet, making it impossible to know if sensitive banking or medical data is truly private, damaging businesses that depended on this trust.

■ His leaks revealed that James Clapper Jr., the director of national intelligence, lied to Congress when testifying in March that the N.S.A. was not collecting data on millions of Americans. (There has been no discussion of punishment for that lie.)

■ The Foreign Intelligence Surveillance Court rebuked the N.S.A. for repeatedly providing misleading information about its surveillance practices, according to a ruling made public because of the Snowden documents. One of the practices violated the Constitution, according to the chief judge of the court.

■ A federal district judge ruled earlier this month that the phone-records-collection program probably violates the Fourth Amendment of the Constitution. He called the program “almost Orwellian” and said there was no evidence that it stopped any imminent act of terror.

The shrill brigade of his critics say Mr. Snowden has done profound damage to intelligence operations of the United States, but none has presented the slightest proof that his disclosures really hurt the nation’s security. Many of the mass-collection programs Mr. Snowden exposed would work just as well if they were reduced in scope and brought under strict outside oversight, as the presidential panel recommended.

If you want read the dispatches of that shrill brigade, you can check them out here and here. Most of it is the usual boilerplate — Snowden’s a traitor, the NSA is saving our lives, don’t be so hysterical. But they do raise one valid point. If we were to cut some kind of a deal to allow Snowden to return, does this create a moral hazard for other NSA or CIA employees to reveal classified information?

That is a legitimate concern. Our country does have some secrets it needs to keep. But I find myself agreeing with Conor Friedersdorf that we can craft things so that we allow true whistleblowers to come forward while not endangering necesssary secrets:

Here are some possible standards:

When the leak reveals lawbreaking by the U.S. government

When the leak reveals behavior deemed unconstitutional by multiple federal judges

When a presidential panel that reviews the leaked information recommends significant reforms

When the leak inspires multiple pieces of reform legislation in Congress

When the leak reveals that a high-ranking national-security official perjured himself before Congress

When the leak causes multiple members of Congress to express alarm at policies being carried out without their knowledge

All of these are obviously met by Snowden as they were crafted around his acts. But that is the point. Clemency or pardon or a plea deal is not obviating the law. It is acknowledging that the law was broken but forgoing or reducing punishment due to extenuating circumstances. In this case, it is very easy to make clear what those extenuating circumstances were and tailor the circumstances to just cover Snowden.

Mataconis responds to the “hang Snowden” critics, most notably on the contention that Snowden should have gone to Congress. But he also raises a practical point:

There is, of course, one final point to keep in mind. Edward Snowden is currently beyond the reach of U.S. Law Enforcement and Intelligence Agencies for the foreseeable future. This means that we will remain unaware of what else it is that he might be in possession of that could be made public someday? Wouldn’t it make more sense to discuss making some kind of deal with him, in exchange for his full cooperation in exploring (1) what data he was able to obtain, (2) How he was able to obtain it even in cases where he apparently didn’t have the proper Security Clearances, and (3) How Intelligence Agencies could make their systems more secure in the future, rather than just leaving him hanging out there, apparently happy with his current living conditions, wondering when the next shoe is going to drop?

This carries a lot of weight with me. While Snowden is in foreign countries, the information he has, whatever it might be, in in danger of being revealed to our geopolitical enemies. Wouldn’t we much rather have him and his computers on American soil?

In the end, I find myself coming around to the idea that Snowden should be granted some sort of clemency … but only on things covered under the conditions Conor lists above: things related to massive surveillance, to law-breaking or to deception. He should not be granted any sort of clemency for any information he has given to Russia or China that compromises our national security. If Snowden has not revealed that kind of critical information to those countries, as he and his supporters claim, he should have no trouble accepting such a bargain.

Obama won’t do this, of course. He and his supporters have a lot invested in vilifying Snowden and defending the surveillance state. But maybe it’s something for Future President Rubio to consider.

Another Punch to the NSA

A few months ago, in response to Edward Snowden’s leaks, Obama put together a commission to whitewash his surveillance misdeeds make recommendations for how to improve privacy protections in the Surveillance Age. Yesterday, they came out with a slew of recommendations. Conor has a good roundup:

The panel’s 46 recommendations, all implicit critiques of the way the NSA operates now, would rein in the agency in many of the ways civil libertarians have urged. The timing of the report is significant, since it comes just after a federal judge issued a ruling calling the NSA’s phone dragnet “almost Orwellian” and likely unconstitutional. In other words, despite surveillance state protestations that its programs are legal, unobjectionable, and subject to oversight by all three branches of government, assessments of the program after the Snowden leaks have now resulted in strong rebukes from a federal judge, numerous legislators, and now a committee formed by the president himself.

Some of the most significant reforms suggested:

The government’s storage of bulk metadata is a risk to personal privacy and civil liberty, and as a general rule, “the government should
not be permitted to collect and store mass, undigested, non-public personal information about US persons.” Following this recommendation would end the Section 215 collection of telephone-call records as now practiced.

The conversations Americans have with people overseas should have more protection.

There should be new limits on the ability of FISA courts or National Security Letters to compel third parties to turn over private business records.

Telephone companies and Internet providers should be able to reveal general information about the amount of data that the government is requesting.

Regular people in foreign countries should enjoy at least some protections against unconstrained NSA surveillance.

The NSA should not intentionally weaken encryption or exploit security flaws in commercial software that have not yet been made public.

The director of the NSA and the head of the U.S. military’s cyber command should not be the same person.

The secret court that grants FISA requests should be an adversarial proceeding, not one in which the government gets to make its arguments unopposed.

The big question going forward is this: will Obama do any of this? These recommendations were a pleasant surprise and the ACLU has endorsed them (although the EFF thinks they don’t go far enough and I’m inclined to trust their judgement). But I think they were an unpleasant surprise to Obama, who expected the report to say he was respecting our liberty just fine.

I’m sure Obama’s supporters — his few remaining supporters — will praise him for putting the commission together and acting on even a tiny fraction of the recommendations. But remember: none of this would be happening without Edward Snowden. Obama was perfectly happy to have things go on as they are. Or get worse.

Judge Slams NSA

Poor poor NSA. Just last night, 60 minutes gave them a 20-minute infomercial about how wonderful they are. And all the Obama supporters, who blasted CBS for their Benghazi story, fell in line and said it reassured them.

And then, today, this:

A federal judge said Monday that he believes the government’s once-secret collection of domestic phone records is unconstitutional, setting up likely appeals and further challenges to the data mining revealed by classified leaker Edward Snowden.

U.S. District Judge Richard Leon said the National Security Agency’s bulk collection of metadata — phone records of the time and numbers called without any disclosure of content — apparently violates privacy rights.
His preliminary ruling favored five plaintiffs challenging the practice, but Leon limited the decision only to their cases.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval,” said Leon, an appointee of President George W. Bush. “Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment.”

Leon’s ruling said the “plaintiffs in this case have also shown a strong likelihood of success on the merits of a Fourth Amendment claim,” adding “as such, they too have adequately demonstrated irreparable injury.”
He rejected the government’s argument that a 1979 Maryland case provided precedent for the constitutionality of collecting phone metadata, noting that public use of telephones had increased dramatically in the past three decades.

This will certainly be appealed. Judge Leon didn’t overturn Smith vs. Maryland. What he did was make the pretty straight-forward argument that the information the government was collecting in 1979 by bugging an exchange for a few days to see who someone was calling is different from automatically slurping up comprehensive meta-data about millions of Americans every day. Check here for the ACLU’s demonstration of what can be done with “just” meta-data.

The usual suspects are decrying Judge Leon’s decision, although that seems entirely motivated by the lawsuit having been brought by, among others, Larry Klayman. Personally, I don’t care if the lawsuit was brought by Tarzan of the Apes. The fact is that the NSA’s meta-data collection program, which was kept secret until Snowden’s leaks, has to be addressed by the Supreme Court, not by some secret FISA Court.

Slurping up the Googles

We take a break from our regularly scheduled nap to tell you that there is absolutely nothing to worry about with Edward Snowden’s newest revelation: that the NSA is tapping into Google and Yahoo data centers:

The National Security Agency has secretly broken into the main communications links that connect Yahoo and Google data centers around the world, according to documents obtained from former NSA contractor Edward Snowden and interviews with knowledgeable officials.

By tapping those links, the agency has positioned itself to collect at will from hundreds of millions of user accounts, many of them belonging to Americans. The NSA does not keep everything it collects, but it keeps a lot.

According to a top-secret accounting dated Jan. 9, 2013, the NSA’s acquisitions directorate sends millions of records every day from Yahoo and Google internal networks to data warehouses at the agency’s headquarters at Fort Meade, Md. In the preceding 30 days, the report said, field collectors had processed and sent back 181,280,466 new records — including “metadata,” which would indicate who sent or received e-mails and when, as well as content such as text, audio and video.

The NSA’s principal tool to exploit the data links is a project called MUSCULAR, operated jointly with the agency’s British counterpart, the Government Communications Headquarters . From undisclosed interception points, the NSA and the GCHQ are copying entire data flows across fiber-optic cables that carry information between the data centers of the Silicon Valley giants.

The infiltration is especially striking because the NSA, under a separate program known as PRISM, has front-door access to Google and Yahoo user accounts through a court-approved process.

Now never mind that when PRISM was revealed, the NSA defenders told us that this was nothing to worry about, that it “proved” that NSA wasn’t tapping directly into the data streams but using court-approved secure data rooms to snoop (as if that were any better). Never mind that Greenwald and Snowden have let the NSA defenders get hoist by their own petard again by letting them spin and spin and lie and lie only to revealed to completely full of crap. Never mind, as Allahpundit notes, that the court had previously rebuked the NSA for similar data-gathering methods. No, no, no, it’s all OK. I’m sure they’re not digging up information on us. I’m sure it’s stopped a terrorist attack at some point.

What? Quit giving me those looks. We can trust these people. Even when they’ve been revealed to be completely lying their asses off. Don’t you care about terrorism?

Another NSA Bombshell

All of you people who said there was zero evidence that the NSA had ever abused their authority? Feeling stupid yet?

The National Security Agency has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008, according to an internal audit and other top-secret documents.

Most of the infractions involve unauthorized surveillance of Americans or foreign intelligence targets in the United States, both of which are restricted by statute and executive order. They range from significant violations of law to typographical errors that resulted in unintended interception of U.S. e-mails and telephone calls.

The documents, provided earlier this summer to The Washington Post by former NSA contractor Edward Snowden, include a level of detail and analysis that is not routinely shared with Congress or the special court that oversees surveillance. In one of the documents, agency personnel are instructed to remove details and substitute more generic language in reports to the Justice Department and the Office of the Director of National Intelligence.

Just one of these incidents involved unauthorized information on 3000 individuals. In another, the FISA court was not notified for months about a program.

Astoundingly, the NSA/Obama defenders are not moved. The NSA claims that this is OK because it’s a small percentage of what they do. Let me restate that. The NSA is saying that thousands of illegal and unauthorized surveillance incidents every year are tiny compared to the authorized surveillance. LGF*, by far the biggest NSA apologist going, somehow claims this report vindicates the NSA because it shows oversight. Glenn Greenwald has responded with the obvious question: if NSA will admit to breaking the rules thousands of times a year, how many times a year do they not admit to it?

(*Johnson demonstrates his inability to understand declarative English sentences by confusing the statement that one incident involved 3000 people with a belief that only 3000 total people had their rights violated. In fact, the article states the NSA has no way of knowing how many people had their privacy violated. In one incident, their computers confused the Washington area code with the area code for Egypt. That incident alone may have violated the privacy of hundreds of thousands of people.)

There’s also this:

The May 2012 audit, intended for the agency’s top leaders, counts only incidents at the NSA’s Fort Meade headquarters and other ­facilities in the Washington area. Three government officials, speak­ing on the condition of anonymity to discuss classified matters, said the number would be substantially higher if it included other NSA operating units and regional collection centers.

So yeah, this is just the tip of the iceberg. And this is just the “data”. “Data” does not include trillions of pieces of metadata on phone calls.

And as for that wonderful oversight that Obama’s defenders keep telling us about?

Despite the quadrupling of the NSA’s oversight staff after a series of significant violations in 2009, the rate of infractions increased throughout 2011 and early 2012. An NSA spokesman declined to disclose whether the trend has continued since last year.

I have to hand it to Edward Snowden, Glenn Greenwald and the WaPo. They really are giving Obama, the NSA and the ODDS sufferers enough rope to hang themselves. They put out some documents, the bootlickers scramble to explain that this is no big deal and then they put another document showing Obama’s defenders to be completely full of it.

It would be fun if it didn’t involve the systematic evisceration of the Fourth Amendment.

Update: I want to quote this at length, since a lot of you are not on Twitter. Conor Friersdorf got on a roll last night about this:

I agree with everything up there. Every piece of additional information we get is more and more alarming. Yet the apologists keep doubling down and insisting that we’re not a police state … yet. Do we need to wait until we are a police state before we push back?

Barry Goldwater said that extremism in the defense of liberty is no vice. I’m not worried about our nation being done in by people who are too protective of our civil liberties.

Pity the Poor Bely Mishka Makers

Lindsey Graham is a consistent cheerleader for the police state, probably second only to the contemptible Diane Feinstein (you should check out The 45 Greatest Enemies of Freedom from the Best Magazine on the Planet). Yesterday, he called for a return to one of the dumbest policies of the Carter years (and that’s saying something):

President Obama should consider boycotting the 2014 Winter Olympics in Russia if the Cold War-era foe gives asylum to Edward Snowden, Sen. Lindsey Graham told The Hill on Tuesday.

“I would. I would just send the Russians the most unequivocal signal I could send them,” Graham (R-S.C.) said when asked about the possibility of a boycott.
“It might help, because what they’re doing is outrageous,” he said. “We certainly haven’t reset our relationship with Russia in a positive way. At the end of the day, if they grant this guy asylum it’s a breach of the rule of law as we know it and is a slap in the face to the United States.”

Several things to unpack here.

First of all, if the Russian government offers asylum to Snowden, we can be angry and annoyed but it’s hardly the invasion of Afghanistan. Countries offer asylum to each other’s dissenters all the time. Unless we’re planning on repatriating Yeonis Cespedes to Cuba, we should keep our diplomatic hissy fits to a minimum.

Second, what the hell, man? We’re in a diplomatic tiff with Russia and we should take it out on our athletes? I have mixed feelings about the Olympics — I hate the corruption, hype and NBC coverage; but I love the games, the athleticism, the competition and the patriotism. Boycotting the 1980 Olympics accomplished nothing except producing an answering boycott in 1984 and denying many of our athletes a chance to shine on a global stage. For many of our Olympians, 2014 will be their only chance. Let’s not take out our frustrations on them. Let’s not politicize everything. For once? Pretty please?

It took me a while to figure out why Graham’s statement annoyed me. And this morning, several thoughts that have been bobbing around my mind converged thanks to post from KenClark at Popehat. In talking about the burgeoning police state — of which Graham is an enthusiastic supporter — he says:

I am not a conspiracy theory type; I do not think that large numbers of people plot, plan, execute, and then keep the details silent with any great frequency (although the more I learn about government tools to spy on the citizenry like Stellar Wind, the multi-yottabyte Utah Data Center , PRISM , etc., the more I question whether I should be more of a conspiracy theorist…).

What I do believe, though, is that systems come into existence and have their own incentives. No one needs to be a black mustache twirling villain in order for evil to happen.

The United States does not have an Inner Party that is plotting FEMA camps for political dissidents because they lust after power for the sake of power.

No, the United States government is a vast ungainly beast composed of millions of “moving parts”, as Megan McArdle is fond of saying, and the vast majority of the people that make up the machine are fairly reasonable people.

They’re just trying to do their jobs.

You should read the whole thing. His point is that NSA is not filled with evil people; cops don’t get into policing because they want to kill folk; even bureaucrats often have good intentions. The problem is not that the millions of people who run our government, our regulatory agencies and our law enforcement agencies are evil. The problem is that they are human. And we have created a system — our leaders have a created a system — that incentivizes the abuse of power and fails to punish anyone who exceeds their authority.

Radley Balko makes the same point in his book Rise of the Warrior Cop, which I’m currently reading. The problems of no-knock SWAT raids on petty gambling operations, elaborate prostitution stings, shootings of unarmed civilians does not arise from cops being evil. It arises because our leadership has created a situation where these behaviors are overlooked or, in some case, even expected. When paramilitary tactics were first introduced to law enforcement, there was tremendous resistance from police officers. They felt it went against the idea of cops as public servants and part of the community. But our national and local leaders were absolutely determined to show how tough they were on crime. Nixon’s original crime bill included no-knock raids and indefinite detention so that he could show just how much he hated the Warren Court.

The machinery of the police state is set in motion not by abusive cops or vile bureaucrats but by politicians such as Lindsey Graham. They create a system that incentivizes a police state, defends that state and punishes those who dissent.

Boycotting the Olympic games is small potatoes on the scale of massive surveillance and indefinite detention. But it is revealing of a philosophy that wants all of us to be part of the governments efforts at surveillance and secrecy. Athletes do not exist for their own sake; they are tools of the government used to reward or punish wayward regimes. Sports fans can’t just watch TV; we should be made to resent those who spill our government’s secrets. No aspect of our lives can be immune from politics and from the need to enhance the power of the state.

As the TSA Turns

The NSA story is developing a little too fast for more than a periodic roundup (we did have an inflammatory story last night that the NSA was tapping phones without a warrant, but that now appears to be bogus).

Moving on…

The Rise and Scale of Surveillance

The AP has a story about how PRISM was developed. The number of requests for information continued to ramp up and PRISM was created to ease the process rather than have agents appear in person. So many requests were put in — more on that in a moment — that it was impossible to confirm the details. More:

But interviews with more than a dozen current and former government and technology officials and outside experts show that, while Prism has attracted the recent attention, the program actually is a relatively small part of a much more expansive and intrusive eavesdropping effort.

Americans who disapprove of the government reading their emails have more to worry about from a different and larger NSA effort that snatches data as it passes through the fiber optic cables that make up the Internet’s backbone. That program, which has been known for years, copies Internet traffic as it enters and leaves the United States, then routes it to the NSA for analysis.

Whether by clever choice or coincidence, Prism appears to do what its name suggests. Like a triangular piece of glass, Prism takes large beams of data and helps the government find discrete, manageable strands of information.

The fact that it is productive is not surprising; documents show it is one of the major sources for what ends up in the president’s daily briefing. Prism makes sense of the cacophony of the Internet’s raw feed. It provides the government with names, addresses, conversation histories and entire archives of email inboxes.

How many requests for specific information does PRISM ask for? In the second half of last year, Facebook got 9-10,000 requests involving 19,000 users. Other companies are reporting similar levels. Defenders of the program are saying, “Well, that’s not a lot considering how many users Facebook, Google, etc., have.” Maybe. But it IS a lot when you consider how many active terrorists there are (probably in hundreds at most) and how few attacks these efforts have supposedly thwarted (a few). And that’s just six months of requests.

The defenders are also making a big deal of the NSA’s claim that they only asked for details on 300 phone numbers in 2012. But keep in mind that they collected metadata on millions and metadata is a big deal, frequently as revealing and invasive as a wiretap.

In fact, the defenders of the President are frankly spouting a lot of nonsense. They keep claiming PRISM wasn’t a big secret and Glenn Greenwald didn’t break anything new; but then they brand Snowden a traitor and claim that he’s compromised the War on Terror. They tell us this isn’t a big deal and we all assumed our electronic communications were monitored; but then they say the program is absolutely vital to success. When you break it down, they are simply scrounging around desperately for a reason to believe that Obama hasn’t betrayed everything he said in Election 2008. I expect them to continue to scramble.

Nothing to Hide

There is, however, one defense with which I have no patience for at all. The Obamaphiles are in the slow stages of realizing who exactly they elected. But the other crowd are simply ignorant subservient cattle. They are the ones running around saying that even the most invasive program should be acceptable for people with “nothing to hide.”

Moxie Marlinspike (is that her real name? Seriously? Awesome!) has a great response. After pointing out, as we have previously discussed, that the federal government has so many laws and so many obscure laws that practically everyone is a felon, she brings up a critical point:

Over the past year, there have been a number of headline-grabbing legal changes in the U.S., such as the legalization of marijuana in Colorado and Washington, as well as the legalization of same-sex marriage in a growing number of U.S. states.

As a majority of people in these states apparently favor these changes, advocates for the U.S. democratic process cite these legal victories as examples of how the system can provide real freedoms to those who engage with it through lawful means. And it’s true, the bills did pass.

What’s often overlooked, however, is that these legal victories would probably not have been possible without the ability to break the law.

The state of Minnesota, for instance, legalized same-sex marriage this year, but sodomy laws had effectively made homosexuality itself completely illegal in that state until 2001. Likewise, before the recent changes making marijuana legal for personal use in Washington and Colorado, it was obviously not legal for personal use.

Imagine if there were an alternate dystopian reality where law enforcement was 100% effective, such that any potential law offenders knew they would be immediately identified, apprehended, and jailed. If perfect law enforcement had been a reality in Minnesota, Colorado, and Washington since their founding in the 1850s, it seems quite unlikely that these recent changes would have ever come to pass. How could people have decided that marijuana should be legal, if nobody had ever used it? How could states decide that same sex marriage should be permitted, if nobody had ever seen or participated in a same sex relationship?

Precisely. This applies to much of the social change that our society has undergone. Interracial marriage would still be illegal if the Lovings hadn’t broken the law and challenged it in the courts. Segregation was broken because MLK was willing to break the law and be punished for it. The progress we have made on property rights and eminent domain have occurred when citizens have been unwilling to meekly acquiesce to the wishes of their government.

No one is saying there is value to be gained in social experimentation in terrorism, obviously. But — as I have said over and over again — the question of PRISM powers being extended to drugs, prostitution, sex, marriage, taxes, etc. is not if, it’s when.

More from Don Boudreax:

1. Is your lack of concern with government snooping a result of your confidence that (a) you, your loved ones, and your friends consistently act in ways that do not violate (what you believe to be) today’s government policy; (b) government will seldom-enough err in interpreting the contents and motives of your, your loved ones’ and your friends’ activities; and (c) that today’s government policy targets and penalizes only those private activities that “ought” to be targeted and penalized by government? If so, are you also confident that government policy will never change to render those same activities of you, your loved ones, and your friends unacceptable to government tomorrow?

2. Or is your lack of concern with government snooping due instead to your confidence that you, your loved ones, and your friends will always not only wish to – but will also always successfully and in time – adjust your activities in ways that render those activities acceptable to government, regardless of the specific contents and motives of whatever government policies reign at the moment?

Exactly. These electronic records go back for many years, through many different legal regimes. A broad reach into your electronic past could uncover things that aren’t illegal now but were illegal then.

There’s another thing. Massive electronic surveillance can uncover things that, while not illegal, are embarrassing. The government and its bootlickers have often taken great delight in revealing embarrassing details about people they don’t like (such as some of the personal smears on Snowden). Anyone who has an affair, anyone who has done something they shouldn’t, anyone with porn on their computer, anyone with humiliating pictures or cringe-inducing e-mails or, um, blog posts they wish they could flush down the memory hole has “something to hide”.

“I have nothing to hide” is the attitude of a slave, not a citizen who is on equal footing with his government. “I have nothing to hide” is an indication that you don’t know what you have to hide. “I have nothing to hide” is an admission that your life is not your own.

The Man of the Hour

As for Edward Snowden, while I still appreciate the reveal of PRISM and still rail against those who call him “traitor” just because he crossed the President, I am growing less sympathetic by the minute. The latest revelation is that he revealed secret snooping on Dmitri Medvedev. While I oppose domestic surveillance, I have absolutely no problem with our government spying on other countries, particularly those as powerful as China and Russia. That is, in fact, the President’s job. Spying on other countries — even our allies — is not shameful, disgraceful, untoward, undiplomatic or wrong. It is how the world works. We should assume these countries are spying on us. Why should we not return the favor?

The attempts by Snowden and some of his allies to cast foreign surveillance as wrong reminds me of a quote from Robert Heinlein. In 1960, one of our U-2 spy planes was downed on a reconnaissance mission inside the Soviet Union. In response to those who said the U-2 flights were “shameful”, Heinlein uncorked this:

Espionage is not illegal under International Law. Neither is it immoral. The penalty for getting caught at is is very high. It usually means the spy’s neck. It is not illegal under US laws for us to attempt to spy on the USSR, nor is it illegal for them to attempt to spy on us. Nor, in either case, is it an act of war. Throughout history every country has striven to learn the military secrets of a potential enemy, and to protect its own. Spying is wise and necessary insurance against utter military disaster.

That we have been conducting photo surveillance over the Soviet Union so successfully and for four vital years is the most encouraging news of the past decade … If Mr. Eisenhower had failed to obtain by any possible means the military intelligence that the USSR gets so easily and cheaply about us, he would have been derelict in his duty.

So if you hear anyone whining about how “shameful” the U-2 flights were, take his lollipop away and spank him with it.

If Edward Snowden is revealing our espionage secrets to Russia and China — and it now appears that he is — he deserves a lot more than a spanking. He deserves to be imprisoned for espionage.

That does not, however, change the nature of PRISM or the rightness or wrongness of domestic surveillance. Just as Eisenhower had a duty to spy on the Soviet Union, Obama has a duty to spy on terrorists. But in both cases, these powers need to be tightly bound, strictly controlled and not used for other purposes. The revelation of PRISM is a big step in establishing those limits, even if the person who revealed them turns out to be a disloyal scumbag.

Snowden, Obama and the Cult of the Presidency

I have thought from early on that the revelation of the government’s massive surveillance operation is a good thing and little that has happened in the past few days has altered that opinion. Already, we are seeing some good coming out of Edward Snowden’s revelations: Google is asking to publish more information; a bipartisan group of Senators want this dragged out into the open; the ACLU is suing. The result of all this will be the very transparency and debate that Obama claims to want (but really doesn’t).

And it should go this way because the reassurance of “trust us” simply isn’t going to cut it. Let’s assume, for the moment, that the safeguards for our data are in place that information can only be obtained on a court order. Fine. But let’s consider the history of the IRS: political persecutions, “seizure fever”, overzealous prosecutions, agents abusing their privelege to snoop into the financial records of celebrities and neighbors. Let’s consider the history of COINTELPRO. The fact is that the government’s investigatory powers have a history of being abused. This is not a hypothetical. This is not some paranoid Glenn Beck fever dream. Abuses have happened; abuses are happening. You don’t have to be a crazy libertarian to be worried that a secret program with the power to look at our electronic data has a massive potential for abuse.

Given the overwhelming case for great transparency, the defenders of Obama are focusing their attention on the leaker himself. Snowden, of course, is being hailed as a hero in many quarters. Despite my gratitude for the leak, I’m not prepared to proclaim Snowden a hero quite yet. I am reserving judgement until we know what was revealed, to whom and for what reason.

However, the effort to demonize him is also running full force. It can be as mild as David Brooks’ bizarre psychoanalysis to as heavy as Jeffrey Toobin’s accusation of “sabotage” (although Snowden didn’t actually sabotage anything or break anything) all the way to several prominent senators accusing him of treason.

The treason charge is, by far, the most troubling. As Dylan Matthews point out, treason is actually defined in the Constitution:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

Snowden obviously didn’t levy war on the United States. And “aid and comfort” is awfully difficult to prove. For example, the Rosenbergs were not charged with treason for giving our atomic secrets to the Soviet Union because we technically weren’t at war with them. Neither Hanssen nor Ames were charged with treason. So while it’s likely that Snowden broke the law, calling him a “traitor” is a bit hyperbolic given what we know.

(Of course, one thing to keep in mind every time the Administration or their apologists talk about how crazy Snowden is: this crazy person had access to top secret information. In fact about 500,000 people have top secret clearance right now.)

Why am I splitting this hair? Because I think it’s important to shine a light on what people like Diane Feinstein and John Bolton and and Bill Nelson and others consider treason. They seem to be defining it as crossing the will of the President. This isn’t about leaks. As Alex noted last week, the Administration was more than happy to leak classified information to the makers of Zero Dark Thirty when it suited their purposes. Just this week, they leaked info about disrupting al-Qaeda’s online magazine. And you really absolutely must read this piece by Jack Schaefer:

Yet even as the insults pile up and the amateur psychoanalysis intensifies, keep in mind that Snowden’s leak has more in common with the standard Washington leak than should make the likes of Brooks, Simon and Cohen comfortable. Without defending Snowden for breaking his vow to safeguard secrets, he’s only done in the macro what the national security establishment does in the micro every day of the week to manage, manipulate and influence ongoing policy debates. Keeping the policy leak separate from the heretic leak is crucial to understanding how these stories play out in the press.

Secrets are sacrosanct in Washington until officials find political expediency in either declassifying them or leaking them selectively. It doesn’t really matter which modern presidential administration you decide to scrutinize for this behavior, as all of them are guilty. For instance, President George W. Bush’s administration declassified or leaked whole barrels of intelligence, raw and otherwise, to convince the public and Congress making war on Iraq was a good idea. Bush himself ordered the release of classified prewar intelligence about Iraq through Vice President Dick Cheney and Chief of Staff I. Lewis “Scooter” Libby to New York Times reporter Judith Miller in July 2003.

After recalling a number of incidents where Obama and his minions have leaked classified info for their own purposes, he concludes:

The willingness of the government to punish leakers is inversely proportional to the leakers’ rank and status, which is bad news for someone so lacking in those attributes as Edward Snowden. But as the Snowden prosecution commences, we should question his selective prosecution. Let’s ask, as Isikoff did of the Obama administration officials who leaked to Woodward, why Snowden is singled out for punishment when he’s essential done what the insider dissenters did when they spoke with Risen and Lichtblau in 2005 about an invasive NSA program. He deserves the same justice and the same punishment they received.

We owe Snowden a debt of gratitude for restarting—or should I say starting?—the public debate over the government’s secret but “legal” intrusions into our privacy. His leaks, filtered through the Guardian and the Washington Post, give us a once-in-a-generation opportunity to place limits on our power-mad government.

This isn’t about the leaks. This isn’t about security. If we had really caught a bunch of terrorist with PRISM, you can bet your bottom dollar that Obama would be leaking details about PRISM to the media: probably more details than Snowden has leaked. So spare us the lectures about how leaking secure information is treason.

No, this about loyalty. This is about only leaking information that the Administration thinks should be leaked and nothing else. Controlling the flow of classified information is, of course, part of the President’s job. But when that information is leaked to the American people for their supposed benefit, it may be a crime but it is not treason. Treason is a crime against the nation, not against the President. And the people who are screaming treason and want Snowden tied up and shot are conflating the two, subscribing to the belief that the President is the country.

Even if we posit that Snoweden is cuckoo, his actions are enabling people who aren’t to make some changes that just might protect our privacy. These actions would not be taking place without the leak. Is that so bad? Is that betrayal? Is that treason?

Only if you worship the Cult of the Presidency.

Update: The latest information is that Snowden is talking to the Chinese press and has told them that the US is hacking Chinese sites. If he is revealing secret information to them, then Snowden is committing espionage for a foreign power, similar to the Rosenbergs or Hannsen. That’s why I was reluctant to call him a hero.

That’s still not technically treason. And it’s worth noting that the accusations of treason were leveled at Snowden for revealing this information to the American public long before any meeting with China. So good on him for revealing this information to us; shame on him if he is revealing technical details to China as well.