How can I tell whether the intelligence agencies are useful?

by Doctor Science
(who's back to being unable to log in under that name)

I grew up in the 60s and 70s, which means (among other things) that I tend to distrust the benevolence and competence of the "three-letter agencies" (FBI, CIA, NSA, KGB). That is: I tend to assume that they're up to not much good, and that what they *are* up to they do poorly. I have more respect for the FBI than the others, because I can see that they *do* do jobs they can talk about and that are worth doing, some of the time. But I don't know if my trust will ever recover from growing up during the reign of J. Edgar Hoover

Since Sept.11th, my always-shaky confidence in the intelligence agencies has dropped even further. What I see:

• Al Quaeda was unstopped not because of failure on the part of the agencies, but because there was no political interest in stopping them.
• CIA/NSA, at least, let themselves be used as political tools to argue for the Iraq War.
• The fact that the agencies didn't go *ballistic* when Valerie Plame was outed persuaded me that they think they *ought* to be political tools.
• It took the FBI 8 years to identify the anthrax terrorist, and they conveniently fingered someone who'd committed suicide years previously. Incompetence or political motivation? You be the judge!
• The CIA deliberately undermined the effort to exterminate polio to help track down Bin Laden. As far as I'm concerned, this makes them baby-killers aforethought.
• Security theater in the TSA, all in the spirit of covering one's ass.
• Massive, untrammeled surveillance of everyone and everything, just because.

Now, I'm told that this is necessary to "keep us safe", and that I should trust the people in charge. But you know what they say: Trust, but verify. So how do I verify?

Remember, I'm a scientist, and my null hypothesis is always: nothing non-random is happening. Is there any way for an observer without high-level access to tell whether the intelligence agencies are actually accomplishing anything? If so, is there any way to tell whether their accomplishments are outweighed by their costs?

Comments

[Aaron Boyden]

The costs of the intelligence agencies seem to be quite high. Even their literal dollar costs are, in the case of the U.S., immense (tens of billions annually). But this is probably dwarfed by the costs in terms of the ways secrecy is always abused, to cover up damaging incompetence and corruption. On the other hand, the controversy over the value of intelligence agencies, at least among those who seem to be making a serious attempt to look at what evidence we have, is between those who think they're slightly useful and those who think that they are useless. Everything we don't know about them would have to be quite different from, and vastly better than, everything we do know about them for the intelligence agencies to be worth it. Everything we know about how people behave when they have no oversight and can conceal all of their corruption and mistakes suggests that, on the contrary, the stuff that is more secret is almost certainly worse rather than better. So the probability that the accomplishments of the intelligence agencies could outweigh their costs seems negligible to me.

One example I like to point out; during the cold war, the Soviet Union was much better at keeping secrets from the United States than the U.S. was at keeping secrets from the Soviets. But the Soviets decisively lost the cold war. It isn't really controversial that one of the biggest contributors to the Soviet collapse was corruption. Since as noted, secrecy enables corruption, I think there's a good case to be made that the Soviet skill at keeping secrets was actively counter-productive, contributing to their inability to compete with the less secretive West.

[Skeptonomist]

There is really no way for anyone to determine precisely whether the intelligence operations are effective or not because they depend on events of unknown but very low probability. The odds of another 9/11 are presumably low since there has been only one in a long history of "terrorism" directed towards the US. 9/11 depended on a unique security flaw, the policy of cooperation with airplane hijackers, which has been discontinued. Since the likes of Bin Laden are not dummies and are aware of the surveillance and can easily devise another 9/11 without using electronic communication, the probability of detection of such a thing is probably very low also. The probability of detection of less-competent attacks is higher, but such attacks tend to be less dangerous.

There was also Oklahoma City, and I suspect the total danger from such domestic attacks is at least as high as from foreign attacks (more low and unknown probability). But supposedly the programs are not directed at US citizens, so they would not stop another Oklahoma City, even if such a plot used electronic communication.

The most effective anti-terrorist measure is probably still infiltration.

[cleek]

i'm a little surprised there hasn't been a plane-as-missile attack somewhere else in the world. airport/on-board security isn't as strong elsewhere as it is in the US & Europe.

[thompson]

" Incompetence or political motivation? You be the judge! "

Why can't it be both?

Great post overall, DocSci. These are the very same questions that I ask. And I think the answers are telling...

'We can't tell you. We stopped 50 attacks. Maybe it was only one. Maybe that wasn't really an attack.'

'We can't tell you. We are certainly not spying on X. We might be spying on X. We are, but we have oversight. There was no oversight.'

If the next 9/11 was stopped dead in its tracks, there would be news conferences, a parade of captured terrorists, filings in courts, etc etc. There would be no benefit to concealing a success like that, political or otherwise.

Everybody would be stepping up to take credit.

It hasn't happened, despite billions spent on security theater and eroding liberties. Especially after Snowden, if the government had dramatic successes to justify their actions, they would have revealed them.

They didn't, so I'm left assuming they have nothing except a colossal waste of money and privacy.

Or as you put it: the null hypothesis.

[cleek]

i'm a little surprised there haven't been more 9/11-style attack elsewhere in the world. all airport/on-board security isn't as tight as it is in the West... is it?

[wj]

I have a real problem with including TSA in the category "intelligence agencies." They have no apparent function in gathering information. And the amount of intelligence in evidence, either in TSA's operation or even in its existance, is nil.

[thompson]

cleek:

"i'm a little surprised there haven't been more 9/11-style attack elsewhere in the world."

I'm not surprised. 9/11 ended the "cooperate with hijackers" concept pretty soundly.

Effective weapons are difficult to get past basic screening (eg metal detectors), and unless you have a whole host of suicide hijackers, the odds aren't going to be in your favor on aircraft that seat more than 100 people.

A lot of things had to line up for the terrorists to pull off 9/11.

Personally, I think the best way to stop terrorism is to not blow up weddings and funeral processions in other countries. At the end of the day, terrorism requires people that are willing to kill and die for your cause. I'd speculate that those with happy families are less likely to do either.

[Adrenalin Tim]

cleek: all airport/on-board security isn't as tight as it is in the West... is it?

In my experience, flights to/through the US follow US standards for security (liquid restrictions & screenings & whatnot), but elsewhere...yeah, not so much.

I was on a domestic flight within Australia a couple months ago. They had passengers walk through a metal detector (without restricting liquids, removing shoes, etc)—but the kicker is that not once did they check ID (at check-in, at security, at the gate, or boarding). It was fascinating.

[Aaron Boyden]

On why there haven't been more 9/11 style attacks, I thought the research on terrorists generally suggested that the most likely explanation is that there just aren't very many terrorists motivated enough to carry out such attacks.

[thompson]

"aren't very many terrorists motivated enough to carry out such attacks"

That's one of the things that needs to fall into place. You need a large pool of people motivated to do it, in order to get a group of competent individuals. You need funding. You need training.

It's hard to pull off something like that.

It's also hard to defend against it. There will always be some soft target that a motivated terrorist could hit. I've seen no indication that the expensive and invasive security/intelligence apparatus offers good marginal increases in security.

[Turbulence]

You've setup a question framed in terms of a cost-benefit analysis but we can't answer that until we know what your values are.

For example, consider a policy to harvest organs from developmentally disabled adults in state care to save the lives of powerful and important but ailing people in our society. From a cost-benefit perspective, this policy has benefits (our greatest ailing scientists, military leaders, CEOs, etc. living when they would otherwise die) and very low costs (perhaps even negative costs: DD adults don't contribute much to GDP and are a drain on society's resources). So the cost-benefit analysis say "whoohoo! time to kill some DD adults and harvest some organs". But this policy is completely monstrous and unspeakably evil. You can't easily encode values like "the individual right to bodily integrity" into a CBA.

From what I can tell, the NSA's activities are simply incompatible with the fourth amendment. Their mass surveillance is exactly what the drafters of the 4A were trying to forbid: a general warrant that allowed the government to surveil anyone without any individualized suspicion. If that's true, then the CBA is irrelevant: we cannot have an NSA engaging in this sort of mass surveillance no matter how great the benefits or how small the costs.

[Turbulence]

I've got a few questions about what you know:

Al Quaeda was unstopped not because of failure on the part of the agencies, but because there was no political interest in stopping them.

What does this mean? Do you think that if the director of the CIA knew enough about the 9/11 plans to stop them that he wouldn't have stopped them? Or that the CIA didn't really care one way or another?

CIA/NSA, at least, let themselves be used as political tools to argue for the Iraq War.

Is there a cite for this? What legal authority do you think the CIA or the NSA has to publicly declare that the President is lying? And didn't many CIA analysts push hard against the rush to war?

The fact that the agencies didn't go *ballistic* when Valerie Plame was outed persuaded me that they think they *ought* to be political tools.

What legal things do you think the CIA should have done that they did not do?

It took the FBI 8 years to identify the anthrax terrorist, and they conveniently fingered someone who'd committed suicide years previously. Incompetence or political motivation? You be the judge!

I haven't followed this case, but has it occurred to you that maybe some criminal investigations are really hard and beyond our ability to crack? I mean, sometimes patients die, but that doesn't necessarily mean that the doctors involved were incompetent. If your standard of incompetence is that the FBI has to succeed 100% of the time in all high status cases, then I don't think the FBI can ever be competent.

Finally, let me pose a thought experiment: has the NSA saved millions of lives by reducing the number of wars the US engages in? I mean, the US government has a long history of starting random pointless wars that kill millions of people. But what if it spied on the rest of the world much less and had much worse signal intercept capabilities? Would the US government engage in even more belligerence? If the US government had much better intelligence on Iraq or Vietnam, would those wars have happened? And if they didn't happen, wouldn't millions of lives have been saved? Hasn't the availability of MRIs and CT scanners prevented many many exploratory surgeries? I'm not sure it is even possible to answer most of these questions.

Having said that, I think the CIA Directorate of Operations should be shut down and most NSA activities in the US should be disbanded.

[russell]

I think the CIA Directorate of Operations should be shut down and most NSA activities in the US should be disbanded.

Seconded.

[thompson]

"Their mass surveillance is exactly what the drafters of the 4A were trying to forbid: a general warrant that allowed the government to surveil anyone without any individualized suspicion."

I'd agree, but not everybody does. Which is where the cost/benefit comes in.

I'm more than willing to put the 4A discussion aside for now and settle the matter on the utter lack of useful results for such large expenditures.

I'm likewise willing to just say it's grossly out of line with the Constitution and put aside the C/B analysis.

Both are valid and dire criticisms, in my mind. I'm all for people listening to either or both.

[Nous]

WJ - "I have a real problem with including TSA in the category "intelligence agencies." They have no apparent function in gathering information. And the amount of intelligence in evidence, either in TSA's operation or even in its existance, is nil."

And yet the TSA has an Office of Intelligence and Analysis, gathers and analyzes intelligence, and is integrated into the larger Homeland Security Intelligence Enterprise. It's heavily imbricated within the rest of our complex of institutions listed above.

[sapient]

Their mass surveillance is exactly what the drafters of the 4A were trying to forbid: a general warrant that allowed the government to surveil anyone without any individualized suspicion.

This is not what the drafters of the 4th Amendment were trying to forbid at all. The drafters of the 4th Amendment were trying to forbid police officers (or government agents) from breaking into your home or your locker, and messing with your stuff. They would have been fine with police following people around, reading the outside of their mail while it was in the post office, and all manner of things that police (and private investigators, and people who are curious about other people) do all the time.

The Fourth Amendment has been interpreted by the courts for many, many years. It was fairly recent in our history that the courts even thought about electronic communications. It was even more recent when an "expectation of privacy" was found in an extremely limited set of electronic communications.

It's clear (to me anyway) that most people in the country want their electronic communications to be private, and free from government surveillance (even the "outside of the envelope" apparently). But it's a huge stretch to say that, all along, the founding fathers were against this kind of surveillance. They may have been against reading people's email without a warrant (if they'd had email), but whether they would have been against seeing call data is a very open question. Sometimes police have to surveil (in a limited way) in order to obtain probable cause to get a warrant. That has always been a police prerogative.

Following someone on the street is an example of something that's perfectly legitimate, and always has been. Third party records, in the way that they have been collected, have also been held to be fair game. The problem is not that the NSA is doing something that is blatantly unconstitutional; they just have technology that's more efficient than had been anticipated by anyone before the technology revolution. The NSA is doing something that people don't like, and that most people think is a breach of their privacy. That behavior could be changed legislatively, or by amending the Constitution, or it could be changed by a broader interpretation of Fourth Amendment protections. But it's not in any way clear that it violates the Constitution, most certainly not according to some view of the founders' intent.

[Nous]

Turb - do you not think that there is a substantive difference between assigning an investigator to look at the outside of a physical envelope for traffic analysis from a particular person for whom probable cause exists, and gathering and sifting that same information from pretty much everybody regardless of probable cause just because technology makes that intelligence gathering practical and economical?

[Brett Bellmore]

"Remember, I'm a scientist, and my null hypothesis is always: nothing non-random is happening."

This is a reasonable default hypothesis concerning the natural, inanimate world of physics and chemistry, and orbiting bodies, and all things which lack intelligence and motive. I think it is not so good a default hypothesis concerning the actions of human beings.

My default hypothesis for organizations of people possessing both coercive powers and a determination not to be subject to transparency, is that anything I can't see is corrupt.

[Turbulence]

do you not think that there is a substantive difference between assigning an investigator to look at the outside of a physical envelope for traffic analysis from a particular person for whom probable cause exists, and gathering and sifting that same information from pretty much everybody regardless of probable cause just because technology makes that intelligence gathering practical and economical?

I think there are big differences between those two cases. Do you have a more concrete example in mind?

[Countme-In]

".... anything I can't see is corrupt."

I know how you feel.

I think that is the NSA's motto, by the way.

Their organizational insignia seems to suggest the same, what with the octopus and all.

Obviously, no one would want either you or me running the government, given our assumption that everything we can't see is suspect.

My rule of thumb is that individuals can account for everything in the universe except themselves, which also goes for the human race as a whole.

We are not transparent to ourselves.

Ever take a look around in a four-way mirror in the changing room?

Who is that person?

[sapient]

People are thinking about themselves and their relationship to the world in a different way than they did in the past. It's interesting that friends of mine post on Facebook pictures of every new cocktail they try. Some post maps of their walks. Pics of kids (even substituting for their own identity). All of this information is forwardable, and can be known to everyone.

This NSA scare mongering seems awfully weird to me, considering all of this. I have a Facebook account but rarely post. I'm never sure who, exactly, among my many friends (some of whom I don't even know) will appreciate my political rants, my pictures of pets, etc. I used Facebook to complain about something to my House Representative, and all of the sudden I got likes from people I had no idea would have seen the note. It was all good, because I didn't mind that my views were known, but still ... more public than I'd realized.

Sure, if people educate themselves about communications of various types, maybe they can find the private shell that they seek. For now, I'll find my privacy in face-to-face communications (hoping that there's no webcam around), or take my chances with phone calls, email, social media, and even writing letters or a journal. People peek.

[Turbulence]

This is not what the drafters of the 4th Amendment were trying to forbid at all.

I tell you what: let's see what the courts think. Let's open up the NSA data to every US Attorney and every District Attorney in the country. Let's start putting murderers and drug dealers and organized crime bosses in prison; let's start finding people who have taken children and run. We can do all that, if only some prosecutors are willing to stand before a judge and say "this NSA mass surveillance, it is totally compatible with the 4A".

But of course, that'll never happen because no prosecutor in this country thinks that argument will fly in a court of law. That's why we're leaving murderers and child abusers to run free. Because this mass surveillance system is totally completely illegal and will crumple the minute any prosecutor mentions it before a judge. That's why there's zero push whatsoever to make this data available to prosecutors or police departments or the FBI. Americans are scared senseless over crime but we've all decided that this treasure trove of data can never be used for prosecuting crimes because....well why exactly do you think that is sapient?

[sapient]

Americans are scared senseless over crime but we've all decided that this treasure trove of data can never be used for prosecuting crimes because....well why exactly do you think that is sapient?

Well, first of all, I'm not scared senseless over crime.

Second, this treasure trove of data has been collected, but can only be used according to the statute (passed by Congress) under which it was collected.

So opening up the NSA data isn't on the table. Let's deal with the law and the facts as they exist, which is what is being litigated currently in the courts, and where there is a conflict among the circuits.

[russell]

The drafters of the 4th Amendment were trying to forbid police officers (or government agents) from breaking into your home or your locker, and messing with your stuff.

The 4th Amendment was a response to writs of assistance, which served as general warrants allowing agents of the Crown to search anything, anywhere, anytime, without specifying in advance what was to be searched for and why, and which did not expire until some months after the death of the King who issued them.

The remedy was to require police to specify, in advance, what was to searched, and why, and "why" had to be justified by probable cause that a crime had been committed.

For electronic communications, the content of the communication has for some time - at least since Katz v. United States, 1967 - been considered to be protected by the 4th Amendment, while routing information has been considered to be outside the protection of the 4th. Routing information has, however, been considered to be protected by statutory law since at least 1986, see the Electronic Communications Privacy Act (ECPA). The ECPA also explicitly extended the protections that were in force for phone calls to email and other computer-based electronic communications.

Content is protected under the 4th Amendment, routing information protected by statutory law, for phone calls, email, internet searches, and any other electronic communication, computer-based or not. All since at least 1986, with protections for phone and other non-computer-based communications extended back decades longer than that.

The idea that the founders would be perfectly fine with a government agency maintaining a record of every phone call and electronic communication made by every individual in the United States, to be stored indefinitely for them to peruse at their leisure, boggles the mind.

[Turbulence]

Well, first of all, I'm not scared senseless over crime.

That's good. Unfortunately, compared to peer nations, the US has an extraordinarily high rate of imprisonment and an absurdly aggressive criminal justice system. Being tough on crime is vitally important for politicians.

So opening up the NSA data isn't on the table.

Says who? Congress passes new laws all the time. Do you think that Congress is uninterested in bringing murderers to justice? That Congressman don't care about finding child predators? That putting drug cartel leaders in prison would be political suicide?

[sapient]

The idea that the founders would be perfectly fine with a government agency maintaining a record of every phone call and electronic communication made by every individual in the United States, to be stored indefinitely for them to peruse at their leisure, boggles the mind.

Your very generalized statement as if it were black letter law is what is mind boggling.

The Founders didn't have any idea about phone calls or electronic communications, so trying to divine their opinions about those technologies is really beyond the pale. You and Scalia need to have a seance.

[sapient]

I would suggest, before we give our amateurish opinions on the Constitutionality of the NSA program, that the courts be able to state their interpretation. There are two eminent federal judges who disagree, and I'm guessing that we'll hear even more authoritative judicial voices before it's over. And although we're really pretty smart, and can read wikipedia, they will have considered extensive case history and the briefs of eminent lawyers in order to pass judgment.

[Turbulence]

I can see the campaign commercials now: "Hi, I'm Representative X, and I have the power to vote for a law that will put murderers and drug kingpins and rapists behind bars, but I won't do that because I don't think Americans deserve to be safe from criminal predators. So vote for me for re-election!"

Don't the children of murder victims deserve justice? I guess not, at least not if it requires Congress to pass a law.

[Ugh]

sapient: I would suggest, before we give our amateurish opinions on the Constitutionality of the NSA program, that the courts be able to state their interpretation.

First time on the internets?

[thompson]

"So opening up the NSA data isn't on the table."

I would run that concept by the DEA. They seem to be utilizing NSA (and other TLA) data.

For some reason, they are trying to avoid disclosing the source to the data by making up a "parallel construction" or fictitious reasons why they engaged in searches.

http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805

This is, no doubt, exactly what fair trials are based on.

Ugh:

"First time on the internets?"

Heh.

[sapient]

Maybe you, Turbulence, and you, Ugh (whose comments I never really get, sorry), should check out Judge Pauley's opinion. And you, too, russell.

Instead of hanging on Katz v. United States, you might want to see what he says about Smith v. Maryland. And the FISA act, and its amendments.

You know, Wikipedia is a great thing, but it's not the law. Not to say that the appellate courts won't go with Judge Leon, but don't bet on it. At least, I'm not going to.

[thompson]

"The Founders didn't have any idea about phone calls or electronic communications, so trying to divine their opinions about those technologies is really beyond the pale."

I disagree with this statement.

The founders didn't have ideas about a lot of things. Otherwise the constitution would be a rigorously detailed compendium of laws regarding every possible situation.

What they did have ideas about was the importance of individual rights, the importance of democratic representation, and the importance of limiting the powers granted to the government.

As a result, the constitution requires interpretation in order to apply to the varied legal problems we face. I don't think its an unreasonable exercise to try to interpret the constitution, and through it, the thoughts of the founders.

Hey, that's pretty much what the courts (and various internet amateurs) do.

Some people, myself included, consider that a reasonable reading of the 4A would prohibit such broad data collection efforts.

[sapient]

thompson, we've discussed the article you linked to awhile back. How information is used in a particular case is certainly subject to scrutiny. That has nothing to do with the NSA program to collect information to begin with. There are all kinds of programs that are perfectly legal, but can be abused. We're talking about the NSA collection of data, not any alleged abuses of that program.

[thompson]

Also, for those interested in Judge Leon's opinion:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0851-48

[sapient]

And an analysis of the dueling opinions by Eric Posner that is quite enlightening.

[thompson]

sapient:

The government is claiming is isn't an abuse for one.

Second, you said "So opening up the NSA data isn't on the table."

And its pretty clearly on the table. Since NSA data is currently being used by other agencies.

Finally, I'm unclear on a legal theory that would rule out discussing the impact of law, including how it may be abused, in the discussion of the constitutionality of the law.

If you listen to 4A case arguments before the SC (I'd highly recommend listening to SC oral arguments when you can, very informative and entertaining), potential abuses are regularly discussed.

The 4A makes no sense if you can't consider potential for abuse.

Why wouldn't I want police to have every possible tool during the investigation and prevention of crime?

Because they will abuse it.

[sapient]

Yeah, thompson. "The government is claiming is isn't an abuse for one."

Just like Ugh - I don't really get what you're talking about.

And, yeah, I listen to Supreme Court arguments when I have a chance. I'm a lawyer, and I enjoy it and get it. Thanks for the tip.

Anybody can abuse anything. Abuse is usually a crime. We prosecute abuse.

[sapient]

Parents sometimes abuse children; therefore, people can never be parents.

People sometimes embezzle funds; therefore, people should never be put into a position of trust.

Etc. Your premise is dumb, thompson.

[Turbulence]

And an analysis of the dueling opinions by Eric Posner that is quite enlightening.

That's a very interesting analysis: it was published three weeks ago, but it only covers one small program that comprises a tiny fraction of the NSA spying on Americans. Is there a reason that the best defence you can point to pointedly ignores almost all the programs that the NSA uses to spy on Americans?

Actually, the analysis isn't that interesting and even regarding the one single metadata program with which it concerns itself, makes no sense. Posner goes on at length about how there is no real expectation of privacy whenever information touches a third-party and also goes on about how useful all this data is for investigating crimes. So why not use this data for stopping crimes? Posner is silent. He's super interested in how useful this data is for investigations and then...nothing. I guess it is not that useful. If there is no expectation of privacy for metadata, then why don't we use it for criminal investigations?

Why, as thompson so astutely points out, do we even bother with parallel construction? Are DEA agents just bored and looking for ways to waste time?

We prosecute abuse.

No we don't. Show me a list of NSA staff who've been prosecuted for abuse.

[russell]

I would suggest, before we give our amateurish opinions on the Constitutionality of the NSA program, that the courts be able to state their interpretation.

Physician, heal thyself.

You know, Wikipedia is a great thing, but it's not the law.

This topic is of particular interest to me, as are most of the civil rights issues that were raised when USA Patriot Act was passed.

I wanted to understand what was what, so I printed out the text of the USAPA, as well as a number of CRS articles on the relevant issues, as well as a number of the better analyses of the law that were available in various print publications, and I worked through the US Code to see what was changed and why.

Black letter, chapter and verse.

Then I familiarized myself to the best of my ability with the case law by reading summaries of the relevant SCOTUS and other cases.

All in, it was a few hundred hours of personal research. It was important to me, so I spent the time.

My wife is a very, very tolerant and forbearing woman.

IANAL but as best I can tell you are not particularly well informed on this topic. If you want to make substantive responses to what I or anyone else says, I invite you to do so.

If you want to be a pissy sarcastic asshole, you can kiss my hind end.

Thanks.

[sapient]

The relevant law right now as to the NSA programs and their constitutionality are the two district court opinions that have been cited.

Kudos to you, russell, for reading up, and putting in time. I too have read about electronic privacy, and other matters regarding new technology that the EFF has been concerned about. In fact, I've done so since the 1990's, and I've attended presentations by EFF representatives, and other Internet security and privacy people because it had to do with my work. In fact, I was briefly acquainted with Marc Rotenberg, of the Electronic Privacy Information Center regarding some of the writing he did relating to electronic privacy. The fact is, the law is not cut and dried on these issues, because it hasn't kept up with the technology, which is why there are two conflicting district court opinions about the constitutionality of the NSA collection of data.

Posner's article suggests (correctly) that Pauley's opinion about the NSA collection of phone data is correct as to the current law, and that Smith v. Maryland is the controlling case. He also concedes that people are nervous about the implications of that decision when so much information can be ascertained from looking at the data that can currently be collected, so the appellate courts (including the Supremes) may side with Leon, and overrule or ignore Smith.

The fact is, I think the NSA program could easily be abused, and that it needs more oversight. However, the founding fathers didn't know anything about the Internet or electronic communications, and the "expectation of privacy" when the Bill of Rights was drafted mostly had to do with people's bodies, their homes, and their physical effects. The concept of electronic communications didn't exist, so we, the twenty-first century folks, basically have to figure out ourselves where to draw the lines. I'll be perfectly happy if the Supreme Court (or even the appellate courts) side with Judge Leon, but I'm certainly not counting on it, because it isn't a foregone conclusion, as you seem to believe it is, despite the patience of your neglected wife. We cannot know what the people who drafted the Fourth Amendment would have thought. Period.

And, no, Turbulence, it's late, and I don't care to go through a laundry list of everything I've read about what the NSA may or may not be doing with cell phone and internet data that it collects. We all know that individual people commit all kinds of abuses, and that some people aren't held to account for it. People commit abuses in nursing homes and institutions caring for the disabled. Should we destroy the institutions? No, we find the people who commit abuses and deal with them appropriately, including firing or prosecuting them. If there are systemic abuses, we change the system. In the case of the NSA, I'm quite sure Congress can amend the Patriot Act. People here want to reorganize the CIA and disband the NSA - go to it. But quit pretending that you're channelling the Founding Fathers.

[thompson]

sapient:

"Etc. Your premise is dumb, thompson."

I certainly agree the "Parents sometimes abuse children; therefore, people can never be parent" premise is dumb.

But its not mine.

My "premise" was that its unproductive to discuss a constitutional amendment that was crafted to prevent governmental abuse without including potential government abuse.

In support of this, I pointed out that those sort of practical concerns are often discussed during 4A oral arguments at the SC.

[sapient]

In support of this, I pointed out that those sort of practical concerns are often discussed during 4A oral arguments at the SC.

Discussed at dinner parties too. But the discussion isn't the law.

The law is the decision that's handed down, and we haven't had any kind of decision stating that the NSA is doing anything that's unconstitutional.

[thompson]

sapient:

"Bill of Rights was drafted mostly had to do with people's bodies, their homes, and their physical effects."

I noticed you didn't include "papers", which included written communication between individuals, datebooks, journals, business statements? Don't you think its reasonable to draw an equivalence between "papers" and the electronic communications of today? If they couldn't search a datebook without cause 200 years ago, why can they search phone logs now?

[radish]

"...so trying to divine their opinions about those technologies is really beyond the pale"

Only because you've managed to confuse method with purpose. It doesn't matter what they would have thought of the method, because the thing they were trying to protect was the purpose.

The Founders felt that government access to citizens' personal communications and records, aka "papers" in the original parlance, required the consent of the judicial branch, probable cause, and particularity. It's right there in the original document.

Now suppose there were no such thing as email or telephones, but all the network-analytic capabilities, and the duplication of content, could be applied to postal mail. Without resorting to a seance, can you say whether the executive branch of the late 18th century (had it been able to) would have been allowed to instruct the postal service to record and keep a duplicate of any piece of mail that passed through their hands?

How about a case in which the government argued that a collection of clay figurines which represented the structure of a particular organization were neither "effects" nor "papers" and were therefore not protected by the 4th? Can you tell me how that was likely to have gone, circa the early 1800s?

If these things do not require a seance, then why does it require a seance to conclude that the founders (at least the ones that favored civil liberties, which granted was not all of them) intended different methods with the same purpose to be protected in an equivalent way?

[Brett Bellmore]

"Second, this treasure trove of data has been collected, but can only be used according to the statute (passed by Congress) under which it was collected."

You know, I've been trying to explain to my five year old the difference between "can" and "may", and you're not making me optimistic that I'm going to get it across. It only MAY be so used. It obviously, having been collected, CAN be used for any purpose under the sun. Cyberstalking. Earning mad money by committing extortion. Slipping embarrassing dirt on political opponents to the media. Blackmailing Supreme court justices.

It "can" be used for any of this, and the deliberately obscure nature of the NSA means we wouldn't know it.

[russell]

Briefly:

The fact that electronic communications did not exist at the time the 4th A was written is not a good argument for why the 4th does not apply to them now. And, in fact, there is ample case law, some of which is cited in this thread, which specifically addresses how the 4th does or does not apply to electronic communications.

Smith v Maryland established that pen register traces - captures of the routing information for electronic communications - were not protected by the 4th. That meant that any such protection would have to come from statutory law. The ECPA is, in fact, that statutory law.

As I've said previously on this topic, metadata collection specifically - which is not the whole of what the NSA is up to - is likely legally in the clear, because the feds can basically write their own warrants if they like. I don't believe they even need to go to FISC for that.

The NSA has apparently extended the privilege of collecting routing information on persons of interest to include all electronic communications, of all people, in the US. At a minimum, that deserves a hearty WTF from all us, and obliges them to explain what the hell they want it for, and what use they intend to make of it.

It's true, police, the FBI, and whatever intelligence agency can follow you around as you go about your public business. If they decided that they were going to follow every freaking person in the US around, each and every day, as they went about their business, and keep a durable record of all of our activities for them to peruse at their leisure, that should properly give us cause to ask what the hell they were up to.

[Julian]

The NSA's job is to look for needles in haystacks. Consequently they want to have all the hay. If they leave out some hay they might miss a needle, if the needle turns out to have been in that hay.

I'm not saying the NSA should get all the hay whenever they want. But this is definitely the reason for their approach.

[russell]

The NSA's job is to conduct signals intelligence.

[Julian]

So?

[Turbulence]

Is it even possible for the judiciary or the executive or Congress to effectively oversee the NSA's activities?

What I mean is that for any Congressperson or judge or executive staffer, there's a good chance that the NSA has access to daughter say, personally incriminating information on them or their family. Say, the fact that person A, who is the government overseer's daughter say, frequently communicates with person B who the DEA suspects is a mid-level drug dealer who often communicates with person C who is the DEA knows is a high-volume drug dealer. How many congressional staffers or congresspeople are cheating on their spouses or buying drugs or watching problematic porn? How many of their careers could be terminated with one anonymous phone call to the DEA or the local police or a local newspaper? How do you oversee someone who has the power to destroy your career?

Perhaps the reason that the two judges came to different conclusions is that one didn't have any dirt the NSA could find and one did. It may be that an organization with as much data as the NSA is simply impossible to regulate, given that the humans who would regulate it are likely to have skeletons in their closets and that the people who run the NSA may not be averse to using that to their own benefit. Seems a bit like keeping a loaded firearm (or an armed nuclear weapon) in your living room.

Now, I don't know for a fact that the NSA is actually blackmailing or threatening every authority that tries to limit its scope, but I don't see why they can't. The people in charge of regulating them have a great many vices. And I can easily see people at the NSA convincing themselves that their the last line of defence and that they're work is vital, so they must be allowed to continue it, no matter what the idiotic politicians or judges say.

[russell]

So?

Allow me to expand.

The NSA's job is to conduct signals intelligence, not to look for needles in a haystack.

If they're approach to conducting signals intelligence is to look for electronic needles in electronic haystacks, they're likely going about it the wrong way.

I understand the desire to NEVER LET 9/11 HAPPEN AGAIN!!!11!!, but the intelligence failures leading up to 9/11 were not due to a lack of information.

[russell]

Is it even possible for the judiciary or the executive or Congress to effectively oversee the NSA's activities?

Not if they don't know what's going on. Which, in turn, is hampered when folks from the agencies lie to them.

These comments from the head of the FISC court seem relevant.

[cleek]

i don't think the NSA needs to use the threat of blackmail to keep itself in business. just holding up the "9/11" sign whenever someone opens their mouth about restrictions or changes will be more than sufficient.

my crystal ball says that it will be generations before there are significant changes to the NSA - the 9/11-era politicians and voters will have to die off, first. we'll need people who look at 9/11 the same way people born in the 70s look at Pearl Harbor.

[sapient]

If they couldn't search a datebook without cause 200 years ago, why can they search phone logs now?

They're not coming into your house and searching your datebook, thompson. They're getting their data from the phone company: you know, that third party that you gave your life story to when you were trying to keep things so private.

It's true, police, the FBI, and whatever intelligence agency can follow you around as you go about your public business. If they decided that they were going to follow every freaking person in the US around, each and every day, as they went about their business, and keep a durable record of all of our activities for them to peruse at their leisure, that should properly give us cause to ask what the hell they were up to.

It is worrisome that they can essentially follow people around in that massive way. But that doesn't mean that the Fourth Amendment solves that worry. By the way, it's worrisome that the folks at my local pharmacy have a long record of all of the things I've bought there (although I could prevent that by using cash). It's worrisome that there was a huge security breach at Target where lots of people's bank accounts were made available to thieves (again, could have used cash). It's worrisome that people can have cameras wherever they want, and have photographs of me when I don't authorize it. Technology presents a whole new world of worries. Everyone takes advantage of technology, including the government.

The writs of assistance that you mentioned earlier were general warrants, allowing English officers to go from house to house, breaking in to look for smuggled goods, and taking them (or whatever else they might find, since they didn't have to account for anything). That's the kind of behavior that the Fourth Amendment was originally (through the Founders) designed to protect: trespass to persons or property for the purpose of finding evidence of crime. Obviously (and with my thanks), the law developed beyond what the Founders had thought about.

Because what the Founders were trying to prevent was unlawful collection of criminal evidence, the remedy for Fourth Amendment violations has been the exclusionary rule, period. Until Katz (1967), there wasn't much discussion of "privacy". The idea of "portable privacy" (except as to a person's body) is a 20th century concept. (For a good summary of case law regarding the Fourth Amendment, with citations to most Fourth Amendments cases through 1992, see this.

So, right, it's creepy that the NSA, and Walgreen's, and Facebook have a lot of information about me that they could use to blackmail me, and I have no problems with laws restricting their collection or use of it. But I'm not going to pretend that the Founding Fathers had any inkling about it, or would have been championing Edward Snowden, because that does not bear out.

[Doctor Science]

The question of whether the "cost" side (including abuse) of the 3-letter agencies can be estimated is what y'all are discussing.

I'm really wondering if there's some way to estimate the *benefit* side, given that a) I don't have a security clearance, and b) as russell points out, the TLAs lie to the people who *do*.

Is there any way to see or estimate the benefit objectively, without secret knowledge? Otherwise, we're paying them based only on their self-evaluation.

[sapient]

Is it even possible for the judiciary or the executive or Congress to effectively oversee the NSA's activities?

People will complain when they're harmed, won't they?

[Countme-In]

If Edward Snowden had been English at the time and giving up the Crown's intelligence to George Washington regarding British fleet movements in 1776, the Founding Fathers would have been all for it.

If he was sitting in a room near the docks in Portsmouth, England cooling his heels while dishing out intelligence data regarding how Paul Revere knew the British were coming, the Founding Fathers would have been aghast.

The Founding Fathers had principles, dammit!

And if you didn't like those, they had others.

[Turbulence]

People will complain when they're harmed, won't they?

How would that work exactly? If a congressional staffer that had been pushing their boss to investigate NSA abuses ends up busted for drug use, who exactly would believe their claims that they're only in jail because they wouldn't play ball with the NSA? If a Congressman's career implodes because newspapers get a tip that he's cheating on his spouse, do you really think that this career will magically recover if he goes on TV and says "I got an anonymous call that told me to stop investigating the NSA or else my cheating would be publicized!"?

Blackmail seems especially effective in environments where the targets are under public scrutiny and must appear squeaky clean. And the NSA doesn't need to get dirt on everyone; our government has many veto points and lots of favors traded, so manipulating a few key people would be sufficient.

The NSA has substantially more data available to it than Google does, but based on news reports, it has substantially poorer internal controls than Google. In fact, it has substantially poor internal controls than my company. This seems...not right.

[Turbulence]

Is there any way to see or estimate the benefit objectively, without secret knowledge? Otherwise, we're paying them based only on their self-evaluation.

No, there isn't. On the other hand, this is true for many aspects of the national security state. Is there any way to estimate the benefits of the F-35 fighter? Or the DDG-1000 destroyer? What about the Missile Defense Agency?

For that matter, how exactly do you assess the benefits of the CDC? I worry that you've setup a test that is so stringent that no entity could ever pass.

[sapient]

People who use drugs can be blackmailed by all kinds of people, as can politicians. I mean, it's a problem, but not one that's limited to the NSA.

I'm not suggesting that the NSA be unmonitored, or that if we can place sufficient oversight and controls on it, that we shouldn't do so. I have a bit of a problem with placing huge limitations on our own government when we basically trust private entities to self-regulate, and when we have no control whatsoever on what foreign governments and entities do.

I'm not saying that it isn't a problem that needs a solution. It's just that the solution isn't to disband government. The solution is more difficult than that, and needs to be discussed in a way that's meaningful, and not destructive to the capacity of government to conduct legitimate national security work.

[russell]

People will complain when they're harmed, won't they?

This assumes that they know that whatever harm they have suffered is related to any of the intelligence programs we're talking about.

That's unlikely, because the means for discovering that are not really available.

Thanks for the more thorough and thoughtful discussion in your 10:16. As has been discussed, routing information is not considered to be protected by the 4th, but has received statutory protection. In general that's moot for investigations of non-US persons and terrorists, but that exception hardly seems to apply to the stuff we're talking about here.

Some of that may also be covered by national security letters, but those are also hardly intended to cover every single person in the US.

It's also unclear that FISC has, or could, issue an order allowing indiscriminate collection of routing information for every electronic conversation made in the US.

So, it seems to me, that the legal basis for collecting all of that is unclear. And, I think that is borne out by the conflicting judicial opinions.

There is also the basic question that Doc Science raises, which is why the hell they want all of that, and what the hell they are doing with it. Oversight of the NSA's activities is demonstrably weak, as evidenced by their ability to lie to Congress with impunity, and by the lack of any effective means of knowing if they are complying with the terms of the FISC orders that are granted.

There is also the question of what programs are underway that extend beyond the collection of just routing information.

Long story short, what we have is an agency that is accumulating a tremendous amount of information, about everybody in the country, with little oversight, which oversight is of limited effectiveness even when it's available, whose leader has publicly lied to Congress about the scope and nature of their programs, and who has so far been unable to present a really compelling case that their work has actually contributed to the safety of the nation or its residents.

So, really? No worries? Nothing to see here, just move along? Just trust us, because a "good guy" is in the White House?

I think it's reasonable, correct, and part of our responsibility as citizens to not take what they say at face value, and to want to know WTF is going on there.

[russell]

It is worrisome that they can essentially follow people around in that massive way.

Shorter me:

It's not worrisome that they *can*. It's worrisome that they *do*.

[Turbulence]

People who use drugs can be blackmailed by all kinds of people, as can politicians. I mean, it's a problem, but not one that's limited to the NSA.

Actually, it is. The NSA has far more data available to it than any other entity. That makes it different. What's more, even when other entities have a subset of the data, it is not their job to mine the data for incriminating connections and evidence of criminal activity; they lack the resources to do so.

For example, AT&T has some metadata, but they don't make money by looking for patterns in that data (this is not a profit center for them), nor do they have access to law enforcement databases that allow them to determine which individuals are known or likely criminals.

[sapient]

...what we have is an agency that is accumulating a tremendous amount of information, about everybody in the country, with little oversight, which oversight is of limited effectiveness even when it's available, whose leader has publicly lied to Congress about the scope and nature of their programs, and who has so far been unable to present a really compelling case that their work has actually contributed to the safety of the nation or its residents.

I agree that the agency needs more oversight. We have known that for a long, long time. The question is how. Obama has offered some solutions, and the issue should be permanently on the front burner (just as the Patriot Act was controversial, and was discussed and amended, and has a sunset provision, which means that it will be reviewed in 2015).

As to Clapper and his "lie" (if that's what you're referring to), that was an inartful way of dodging the problem that it would have been a criminal act to discuss a classified matter in public. I don't at all respect Wyden for setting that trap. If you're talking about a different instance of lying, could you provide a description or a link?

The NSA can't present a "compelling case," in part because their work is mostly classified. We are the most powerful nation in the world. We have a lot of very significant and public problems (such as our huge rate of incarceration, wealth inequality, and many others). Despite our problems, I'd prefer to maintain our position of strength in the world, and I trust the government more than I trust private corporations, which also have a lot of information, and operate not only here, but abroad, and can also misuse what they have. (As corporations are increasingly involved in the political process, I don't see why we don't have exactly the same worries about them as we do about the NSA.)

[sapient]

For example, AT&T has some metadata, but they don't make money by looking for patterns in that data (this is not a profit center for them), nor do they have access to law enforcement databases that allow them to determine which individuals are known or likely criminals.

AT&T could have some political interest, and use its data to blackmail a politician just as the NSA does. The point is not what the data is used for (which, if all goes well in the NSA, is all to the good); it's what it could be used for if someone cared to do something untoward. Corporations are becoming more and more powerful. I used to joke that we would soon be pledging allegiance to our favorite stock corporation, and the fact is, that's more and more true. Sure, they're set up in order to make a profit, but we all know that wealthy executives are as likely to be corrupted by power as anyone else. I really don't see why it's not just as much a matter of concern.

[russell]

As to Clapper and his "lie" (if that's what you're referring to), that was an inartful way of dodging the problem that it would have been a criminal act to discuss a classified matter in public.

The correct answer was "yes". His reply was "no".

If you can't answer a question because it touches on classified information, a useful response is "I'm sorry but I can't answer that".

If Wyden is unable to ask a question as basic as "are you collecting information on US persons", I'm not sure what level of oversight is possible.

To some (IMO fairly large) degree, this discussion is more or less moot, because the intelligence agencies are going to do whatever the hell they want to do.

And, that's the problem, in a nutshell.

[sapient]

If Wyden is unable to ask a question as basic as "are you collecting information on US persons", I'm not sure what level of oversight is possible.

Wyden knew the answer to the question, and knew that the matter was classified. I agree that his answer should have been different; he actually explained later why he answered the way he did, but in any case, that's a poor example of why Congress can't have oversight since it was basically a PR trap by Wyden.

[sapient]

Regarding the Wyden - Clapper exchange.

[thompson]

Conversation has moved on while I've been otherwise engaged, but I wanted to throw up a Schneier link since this was also the subject of his blog post:

https://www.schneier.com/blog/archives/2014/01/questioning_the.html

[cleek]

it was basically a PR trap by Wyden.

we know now.

but what if we didn't know he was lying? what if we took his word for it?

[Slartibartfast]

A particular set of Pparents sometimes abuse children; therefore, people can never be parentsthose parents should not be left alone with children.

Fixed.

What does this mean? Do you think that if the director of the CIA knew enough about the 9/11 plans to stop them that he wouldn't have stopped them? Or that the CIA didn't really care one way or another?

My guess is that this is just the "Bush knew about 9/11 and didn't bother to do anything about it" trope. But Dr. Science should answer this.

[thompson]

sapient:

Your linked discussion on the Wyden-Clapper exchanged seemed a little one-sided. Then I read about the author:

"Joel Brenner was the inspector general of the National Security Agency from 2002-2006, the national counterintelligence executive from 2006-2009, and the senior counsel of NSA from 2009-2010."

I find the concept that Clapper couldn't demur to a classified hearing ludicrous. What exactly would have been revealed by saying something along the lines of:

"The specifics of our signals intelligence is classified for good reason. We should discuss that in closed session."

Had anybody heard that, I don't think they would have immediately jumped to 'bulk collection of telephony'.

Further, there is a reason congress holds hearings. There is a reason those hearings are public. It is both so congress can be informed, and the public they represent can be informed.

Asking hard questions of executive officials is a key aspect of 'oversight'.

I applaud Wyden for it, and do not believe Clapper had the right to lie to congress because they asked a hard question.

[sapient]

but what if we didn't know he was lying? what if we took his word for it?

The link to the article about the Wyden/Clapper exchange that I provided posed a more conscientious way that Wyden could have made this information available to the public.

I applaud Wyden for it, and do not believe Clapper had the right to lie to congress because they asked a hard question.

It's your prerogative to applaud whomever you'd like. I think that Wyden's behavior was just as much an abuse as anything else we're talking about. He knowingly put Clapper in an untenable position of committing a criminal act, when he himself could have divulged information and probably been protected by Constitutional privilege. Go ahead and applaud abuse if you want to.

[thompson]

Turb:

"For that matter, how exactly do you assess the benefits of the CDC? I worry that you've setup a test that is so stringent that no entity could ever pass."

I think the difference between the NSA and the CDC, or even the military, is the level of secrecy.

The CDC can make all sorts of claims about lowering flu rates and how their programs affect HIV transmission or whatever. But their spending, and their programs, are public. The results (mortality and disease rates, etc) are published regularly.

Now, the CDC also evaluates their own results and publishes on it.

However, anybody can investigate their claims. Anybody can use CDC data to independently investigate the efficacy of the CDC's programs. And people do. The publish on it. I can personally go to the raw data and draw my own conclusions if I am so motivated.

The NSA is using interpretations of statue that are secret, conducting secret work, and getting secret results.

If Clapper or someone else stands up and says: 'The bulk collection of telephony data has contributed X to the GWOT' who can contradict him?

I have grave concerns about TLA's having power they have a history of abusing not having thorough and public oversight.

I am far less concerned about terrorism.

[thompson]

sapient:

" more conscientious way that Wyden"

Wyden had and has many methods for discharging his duty as a US senator. I don't find the NSA council's other suggested options "more conscientious."

I actually found it odd that someone that doesn't like Snowden's revelations (here I'm speculating about Mr. Brenner's thoughts on Snowden) arguing that Wyden would have been "more conscientious" if he simply exposed the programs.

" He knowingly put Clapper in an untenable position of committing a criminal act"

No, he didn't. Clapper readily could have answered with a generic 'wait until the classified hearing' answer and revealed nothing.

[russell]

so, i took a quick look at the two judicial opinions.

both locate the authority for the NSA to collect communications 'metadata' - information other than the content of the communication - in section 215 of the USA PATRIOT Act.

USAPA section 215 does grant extremely broad powers for collection of virtually anything - 'any tangible thing' - including from US persons.

there are limits. the collection has to be related to a foreign intelligence investigation NOT related to a US person, or to a clandestine intelligence or terrorism investigation. the collection must exclude materials related to a US person's exercise of their first amendment rights.

significantly, at least in my view, Leon notes (and Pauley does not) that section 215 was amended in 2006, such that the application for FISC order to engage in data collection must include:

a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2)

50 US Code section 1861, see (b)(2).

so, it seems to me that the question is whether every phone call, email, tweet, facebook post, web browse, or what have you, made by every person in the US, since about 2006, is relevant to any given investigation of the activities of a particular foreign person, and/or of terrorism or clandestine intelligence activites (other than the NSA's).

Pauley. at least as far as I have read so far, doesn't address the question raised by the 2006 amendment.

Leon does address it, and finds the NSA's case lacking.

basically, the NSA wants a database of the routing information for EVERY ELECTRONIC COMMUNICATION done by EVERY PERSON in the US, for years. like, the last 8 years and counting.

they want this so they can take a phone number they suspect is related to a terrorist, use it to query the database for up to three degrees of separation, and see what pops up.

to do this, they have to acquire the information *before they know whether its relevant or not*. unless we are going to say that "it's relevant if it might someday turn out to be relevant".

Leon finds that to be a bridge too far. I agree with him.

we'll see where it lands.

[sapient]

Clapper readily could have answered with a generic 'wait until the classified hearing' answer and revealed nothing.

As I said before, he didn't handle Wyden's trap as well as he should have. However, he was under no obligation to tell the American people anything, and he wasn't deceiving Congress, since they knew the answer to the question, he knew the answer to the question, and they both knew who knew the answer to the question. So, sure, it was a stunt by Wyden to trip up Clapper, and it worked, because Clapper felt that he couldn't tell the truth publicly. Crucify him if you think he should be, but if you're trying to use the incident as an example of "How is Congress supposed to exercise oversight when people lie?" it's a pretty poor example.

That's all I'm saying.

[thompson]

russell:

Agree with your 1:25PM.

sapient:

" he was under no obligation to tell the American people anything"

No, but he was under oath to tell the truth at the hearing. And he did not. That's not handling it poorly, that's *lying to congress*.

"if you're trying to use the incident as an example of "How is Congress supposed to exercise oversight when people lie?" it's a pretty poor example."

I'm using it as an example of *lying to congress*. Not misspeaking, or being too cute by half.

Above you called it a "lie" in quotes (which I took to mean you don't really consider it a lie) and further characterized it as "an inartful way of dodging the problem"

I am simply rejecting the concept that it was not a lie under oath.

[sapient]

I am simply rejecting the concept that it was not a lie under oath.

In order for a "lie under oath" to be perjury (in other words, a crime) there has to be an intent to deceive. How could there be an intent to deceive when everyone knew the score? In the game of "PR gotcha", Weyden "got" Clapper, no question. That's all. Applause, applause.

[Turbulence]

Regarding Clapper's exchange, Wyden's office sent it to him the day before the meeting. If the correct answer would have been classified, the legally correct thing to do is to tell that to committee aides and ensure that the question is asked during a closed session. Congress deals with classified testimony all the time. The correct answer is not to commit perjury.

Wyden didn't surprise Clapper with a question; he gave him advance notice of exactly what he would ask.

However, anybody can investigate their claims. Anybody can use CDC data to independently investigate the efficacy of the CDC's programs. And people do. The publish on it. I can personally go to the raw data and draw my own conclusions if I am so motivated.

Is the F-35 a better aircraft than the cheaper Russian equivalents? How could we tell? Much of the performance data is classified (how effective is the stealth coating against Russian fighter radar systems?). Beyond that, the only real way to know is to have a conflict where F-35s fight against other aircraft and see who wins; that is...a poor evaluation technique.

[sapient]

I read again Judge Leon's opinion. The reason it is criticized by legal scholars is that district court judges don't really have authority to overrule standing precedent by the Supreme Court.

What Leon did was to concede that Smith v. Maryland stood for the idea that there is no expectation of privacy in telephony metadata, which is contained in the business records of a telephone company. However, he took the giant leap of saying that telephone companies now have so much metadata, and it can tell people so much about the customer, that people do have an expectation of privacy in it.

Although the Supreme Court sometimes does that kind of reversal of existing law, district judges really aren't supposed to do it.

Also, he cites the United States v. Jones case (the GPS case) as though the Sotomayor opinion were the controlling one. The Jones case was decided on the basis that the GPS device installation was a trespass. The court did discuss technology, and the expectation of privacy, in a way that signalled the possibility of expanding previous decisions, but that's not what the decision was based on, so it isn't controlling. Leon went way beyond the scope of where he should have based on stare decisis. Again, the Supreme Court can do that kind of thing, but he is on very shaky ground.

Leon's discussion of the statute is interesting background, but his decision isn't really based on any interpretation of the statute. His decision is basically this: Collection of telephony metadata violates people's reasonable expectation of privacy because nowadays the government can find out a lot, whereas before (when the Supreme Court last considered it), they couldn't find out much.

[sapient]

The correct answer is not to commit perjury.

Again, perjury requires intent to deceive. And again, Clapper probably should have said something weaselly instead of untrue, just to be "honest." But, honestly, I think Wyden's motives were pretty sleazy. But, applause!

[russell]

Smith v. Maryland stood for the idea that there is no expectation of privacy in telephony metadata

Smith vs Maryland establishes that there is no 4th Amendment constitutional protection for telephony metadata.

Subsequent to Smith vs Maryland, the Electronic Communications Privacy Act establishes a *statutory* protection for telephony metadata. Warrant with probable cause is not required, however a court order is. For intelligence (i.e., non-criminal) investigation of a US person, that must come from FISC.

USA Patriot overrides ECPA, however with the limitations I noted above.

IANAL, but that's how it looks to me.

[thompson]

"How could there be an intent to deceive when everyone knew the score?"

Everybody didn't know the score. The people didn't. We, the people, expect that public testimony under oath to congress is truthful.

USC on perjury:

"willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true"

If you have case law or code that shows mens rea in a perjury case is not satisfied by a willful and knowing untruth under oath based on the condition that the "tribunal, officer, or person" knows its a lie, I'd love to see it.

Because that concept makes little sense to me, and I'd love to learn more about it, if its based in settled law.

[thompson]

"Is the F-35 a better aircraft than the cheaper Russian equivalents? How could we tell? Much of the performance data is classified"

Turb, that's true. And a lot of military information is classified (Too much, in my mind). But its a matter of scaling.

We have data on performance characteristics of the F-35. Not all of them, and not the limits. We have data on failures/problems in the F-35. Again, probably not on all of them. And we know the program cost. It keeps increasing, but its known.

And we can evaluate the arguments made by the DoD on why a new fighter is necessary. And why the JSF was the best way to accomplish the goals of the various branches.

Pretty similar for the Osprey. We know the costs, we know a lot about the problems, we know a lot about the capabilities.

As secrecy increases, oversight becomes harder. In many cases, secrecy is completely unnecessary (CDC frex). In others its partially necessary (military frex: I'd like to know when we go to war how the war is going, which troops and equipment are deployed, what strategies are being used, but I don't need a twitter feed if we are going to raid a Taliban camp. If overall what the military is saying can be verified, I'm willing to extend some trust on operational specifics).

[Turbulence]

Perjury is a complex crime and maybe Clapper did or didn't do it; it is difficult to prosecute and maybe the USDA should or shouldn't prosecute Clapper. But there can be no question that Clapper lied. He had no excuse. He chose to lie, in public, rather than ask for a closed session and offer a truthful answer there. And he didn't just make a bad decision on the spur of the moment: he had advance knowledge of precisely the questions he would face, which means he chose to lie in advance.

I don't know if Clapper committed perjury or not. But I do know that he has lied to Congress. And I know that Obama should have fired him immediately for doing so.

If you can't answer Congress' questions truthfully even given a staff of deputies and assistants, then what business do you have running a massive organization with thousands of employees controlling billions of dollars?

[sapient]

I'm not going to research it, thompson, since it's moot. He wouldn't be prosecuted for lying since it was clearly a P.R. stunt, and his truthful answer would also have been a crime. Everyone (but you, apparently) realizes that he was stuck with making a truthful weasel (which would have alerted the American public to a highly classified program which he had a duty not to reveal) or a lie.

Wyden's PR stunt, which was designed to draw acclaim from people who were predisposed to hating Clapper, worked. Again, Wyden could have chosen a more courageous course, but that would have meant that he would have had to have shown some courage instead of foisting the dilemma on someone else.

Good gotcha!

[russell]

However, he took the giant leap of saying that telephone companies now have so much metadata, and it can tell people so much about the customer, that people do have an expectation of privacy in it.

Just finished reading through Leon's opinion.

I think your analysis is correct - after pointing out the limitations in USAPA section 215, he then went on to agree with the government's claim that it was out of his jurisdiction to rule on whether the NSA's program was compliant or not - per Leon, that belongs exclusively to the FISC.

Leaving that aside, he found a 4th Amendment protection based on fact that there's just a lot more phone metadata around now than there was when Smith vs Maryland was decided.

I agree with you in finding that to be a pretty slim reed.

I would expect Leon's opinion to be overruled. And, thanks for including the links to the opinions.

The issue that is left unaddressed is how the telephony metadata from every electronic communication, of every person in the US, over any five year period, is relevant to any given terrorism or foreign intelligence investigation.

We're also left with an agency running programs that can only be reviewed by a secret court, and where the chief judge of that court frankly concedes that meaningful oversight is not reliably achievable.

So, quite likely legal, yet FUBAR.

[sapient]

And I know that Obama should have fired him immediately for doing so.

I don't really care about this when the situation was a transparent attempt by Wyden to score points, and to reveal the existence of a classified program without taking the heat for it. If Obama fired him to score points with Turbulence, that would have been a political calculation. Clapper came up with some after-the-fact excuse, and apparently that's been accepted.

I find it hilarious that some of the people here who are so worried about people being framed and blackmailed and put in untenable positions by the NSA are perfectly okay with Wyden having accomplished a PR victory using Clapper as a fall guy, when he could very easily have done it in a more honest and straightforward way. This is an example of abuse of authority, pure and simple.

[Slartibartfast]

If Obama fired him to score points with Turbulence

That's one of the sillier things I have read today.

[russell]

I don't really care about this when the situation was a transparent attempt by Wyden to score points

I would say that if we can't assume malicious intent on Clapper's part, since we can't read his mind, then Wyden deserves the same consideration.

There's a lot of daylight between "setting a trap" for a "PR stunt", and simply putting somebody on the spot.

And there's absolutely nothing, nada, zip wrong with a Congressperson putting a federal agency principal on the spot. That's a completely legitimate part of oversight.

[thompson]

sapient:

"I'm not going to research it, thompson, since it's moot."

I didn't ask you to research it. I just assumed you had evidence for the claim you made. My research turned up none.

"and his truthful answer would also have been a crime."

As had been stated repeatedly, he had many truthful answers available that would not have been a crime.

"Everyone (but you, apparently) realizes that he was stuck"

"Everyone" does not realize this. There are dozens of opinions in NYT, WP, etc etc that have a similar analysis to mine. Your link even links to one.

[russell]

That's one of the sillier things I have read today.

I don't know man, Turb's a heavy hitter.

[sapient]

So, quite likely legal, yet FUBAR.

Thanks for reading so carefully and honestly. I think there's a lot of reason for worry about the program. Fortunately, it does come up for review in 2015.

Believe it or not, I don't want to live in a totalitarian state either. But I'm not so sanguine to believe that private entities, which have no oversight whatsoever, can't make malicious use of the data they have just as easily as the government. I think the information age is wonderful - I spend huge amounts of time on the Internet. But it's a brave new world, no question.

[cleek]

why, it's almost as if things like "abuse of authority" depends on who is using that authority and to what end. buncha fncking hypocrites, right? authority should always be respected, or never. there's no "who's authority" or "what good does it serve"; that stuff is hilarious.

[sapient]

cleek, I don't know if you read the New Republic link regarding Wyden's other options. I just think if we're calling people out for stuff, we should be consistent. Wyden has Congressional immunity under the Constitution. If he wants to spill the beans on a government program, he's not going to jail. Clapper, not so much.

Sure, Clapper should have asked for a closed session. Was he clumsy? Is he just a pathological liar? What? Either he was confused (as he later stated), or one of the former things. In any case, everyone in the room knew the truth. But, sure, let's go ahead and put his head on a pike to show our disapproval.

[cleek]

I just think if we're calling people out for stuff

not all stuff is equal.

Either he was confused (as he later stated)

which is laughable.

[hairshirthedonist]

Wait a minute! Are we crucifying him or putting his head on a pike? Which is it, now?

[sapient]

Why not both?