The Empire Takes a Hit: NSA Update - 2 views
started by Gary Edwards on 15 Jun 13
started by Gary Edwards on 15 Jun 13
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started by Gary Edwards on 15 Jun 13
NSA Conversation with retired lawyer and Open Source legal expert, "Marbux".
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Monday, June 10th 2013: On CNN, Piers Morgan. Adm. James Wooley and Ron Paul being interviewed on the topic: "Eric Snowden, Traitor or Hero". Probably will be on again later tonight. Ron Paul is having a field day, with Morgan lobbing him softball questions that Paul hits out of the park. It turned into a debate whether Snowden or government officials should be punished. Paul's best score, something like: "Obama ran on a promise of transparency and now we're finally getting transparency. We should all be overjoyed."
Thanks Paul! Hey, great post on Liberty in the Breach. Your comments are very helpful!
http://bayareapatriots.wordpress.com/2013/06/14/liberty-06142013-p-m/
Interesting quote from Ron Paul; "It turned into a debate whether Snowden or government officials should be punished."
That debate is going to come down to whether or not you support the Constitution and Bill of Rights. Especially the 4th Amendment. It's amazing how the government is now trying to justify the Prism dragnet when we all know that, had they argued for the dragnet back when the Patriot ACT was publicly discussed and voted on, the Act would have not passed congress.
What follows is a a summary of the situation that I sent a friend in the UK:
UK: Yes, far less 'noise' in the UK, despite news that we may be taking a US feed of such data... 1984 indeed?
Marbux: Yes, but a great opportunity to throw a wrench in the works. The feds tried to get Congressional authorization for such a program a few years back, then named TIA (Total Information Awareness) and it aroused such a furor that Congress said no.
Other complicating factors for our electronic spooks:
-- The Guardian has said it has only begun to publish articles about the PRISM program, that they have plenty of more documents they got from the leaker. That makes it dicey for the Feds to come up with new excuses because they don't know what's yet to be disclosed.
-- The head of the NSA is in hot water for committing perjury in Congressional testimony to the Senate intelligence oversight
committee, denying that the NSA had such records.
-- The leaked documents hit the press only a few days before Obama's meeting with Chinese President Xi Jinping that Obama was going to focus on Chinese electronic theft of blueprints, etc. for U.S. weapons systems. I suspect that meeting didn't go the way Obama intended because of the PRISM disclosure and because of the leaker saying just before the meeting that the U.S. had been hacking China and Hong Kong for years.
CIA Surveillance Leak: Guardian journalist Glenn Greenwald says 'dozens of stories' in the works
-- The E.U. is wading in heavily, because the program violates E.U. privacy and human rights.
-- Similar concerns erupting from other nations, notably India and Australia.
-- The left-leaning American Civil Liberties Union has filed a lawsuit challenging the constitutionality of the program.
The First and Fourth Amendment claims look like a slam dunk to me; the PRISM program is way beyond what the case law permits.
-- Meanwhile, the right-leaning Tea Party is upset about it too. A few days ago one or their darlings who's already begin running for the next Republican presidential nomination, Sen. Rand Paul, promised a class action lawsuit last weekend and it was filed yesterday.
The suit seeks some $20 billion in damages and an injunction ending the dragnet surveillance for just about all Americans with a telephone.
-- The legality of the NSA PRISM program could land in the Supreme Court's lap in the next few weeks because of a ruling by a federal judge in Florida. See
If the judge orders disclosure the Feds must comply or immediately appeal. And likewise if the appellate court upholds the district court, the Feds either comply or must immediately seek review in the Supreme Court. This all has to happen in a period measured in days raher than weeks or months because it's an ongoing murder trial. The legality of the program is directly at issue. The judge seems inclined to order disclosure. And it will be hard for the Feds to argue that the metadata for the two telephones at issue is classified, since it's telephone company data that was not classified before the NSA got it.
At the same time, if the Feds disclose or the judge orders them to do so, there will be a flood of habeas corpus petitions filed by people already in prison seeking new trials with the NSA data in the record.
Easiest way out for the Feds is to drop the charges against the defendant to moot the issue. But it will be back via habeas corpus.
-- Mainstream media is keeping the story in the headlines. Perhaps payback for wiretapping 20 Associated Press journalists and naming a Fox News reporter as an unindicted co-conspirator in an Espionage Act case over an intelligence type who stepped into the whistleblower role?
-- The public opinion poll results are changing, rapidly going from a strong majority supporting the surveillance right after the first publication of the story to a majority now opposed, with "undecided rising" rapidly too. All at the expense of "support", of course.
-- The elected Senators and Congressmen have undoubtedly taken note of that trend and more and more are speaking out against the program while its defenders are quickly falling silent.
-- Even those who are still defending the program are asking Obama to declassify more about the program so they can legally discuss its supposed benefits. They were quickly debunked after claiming that two particular terrorism cases wouldn't have been discovered without PRISM. There were complete court records in both cases, and they involved only old-fashioned detective work.
-- Lots more going on, but I think this is going to result in a substantial curtailment of government dragnet surveillance powers.
{End of conversation}
Followup Comments:
The 4th Amendment issue is very strong. The PRISM defenders say that the relevant Patriot Act provisions have been upheld in the courts, but that is false.
In two cases, the district court found the Patriot unconstitutional under the 4th Amendment. On appeal, both cases were tossed out on State Secret privilege grounds, because the government refused to disclose the evidence because it is classified. So the appellate rulings were that since plaintiffs couldn't get the discovery they couldn't prove their cases; therefore, they lacked standing to sue.
Would you agree that Super Patriot Edward Snowden might provide the evidence needed in those two court cases? Seems like Edward has given us all legal standing.
In a third case, there is a 86-page ruling by the FISA court ruling that the FBI and NSA exceeded their Constitutional powers. Disclosure of that opinion is at issue right now in a Washington, D.C. Freedom of Information Act case. That case was temporarily stayed so that the plaintiffs could get a ruling from the FISA court on whether that court's rules mean that the Feds' copies of the opinion are sealed. The FISA court just ruled that they are not sealed. So it's back to the D.C. court to decide if they are lawfully classified. It's likely that the court will order disclosure of a redacted copy with only validly classified information deleted. That shouldn't cover the substance of the FISA court's legal rulings.
It's a combination of the documents Snowden released, the Feds' acknowledgement that the docs are genuine, and statements by Sen. Feinstein and later by Feds that the program exists and has been in operation since 2006. These facts are central to the ACLU case and the class action lawsuit.
The 4th Amendment has no exception for intelligence gathering. It says in essence that there must be "probable cause" for the Feds to believe that the evidence they seek pursuant to a search warrant is relevant to a particular crime they allege has been committed. It is very definitely not an authorization for government to obtain Big Data because it might later become relevant to future crimes.
Warrants must be narrowly tailored, describing the particular place to be searched and particular evidence that the Feds want to seize. And the affidavit in support of the motion for the search warrant has to detail the basis for the reasonable cause and its relationship to the particular crime.
The government's justification has to be something akin to saying that there is a particular book in a large library that is needed as evidence, therefore they want to seize all books in the library.
There's a lot of confusion out there on what's permissible under the 4th Amendment. To get a start on understanding it, you need to recognize the legally huge difference between investigating a particular crime and gathering intelligence for future use. The 4th Amendment limits collection of evidence to that for a specific crime that has been committed.
But it's the bright line between intelligence-gathering and criminal investigation that got blurred by the Patriot Act, etc. Think Fusion Centers here. The cops and the spies began to share information in the name of the War on Terror. That's verboten under the 4th Amendment.
You can see signs of this in the way the Verizon order was obtained. The order said, "turn this information over to the FBI" (a law enforcement agency). Then the FBI turns it over to the NSA, which is not a law enforcement agency. And there are four separate statutes that in essence say that all civil and criminal investigations are to be conducted only by the Dept. of Justice, unless another statute expressly confers law enforcement powers on another agency. NSA lacks that authority.
It's time for heads to roll.
~marbux~