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View Diary: The Reasons Edward Snowden Will Not Receive a Pardon or Executive Clemency (302 comments)

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  •  "[D]ocuments"? (0+ / 0-)

    The NSA isn't stealing documents or content at all. It is dumping faceless and nameless numbers into a hat. Moreover, by law, the Government cannot find out anything about those faceless or nameless numbers unless they connect directly to a terrorist's telephone number and the Government obtains a subpoena. As I've said before, there is 10x more information contained in telephone books and 100x more information in the long form Census.  

    You should have struck through the word "documents" and in its place inserted the phrase "unidentified numbers."  

    Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting. On biblical prophesy: If you play the bible backwards, it says, "Paul is dead."

    by Tortmaster on Thu Jan 30, 2014 at 05:41:00 AM PST

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    •  If you believe this, (17+ / 0-)

      I have bridge to sell you.

      The NSA isn't stealing (shall we say 'collecting' instead) documents or content at all.

      190 milliseconds....

      by Kingsmeg on Thu Jan 30, 2014 at 05:45:40 AM PST

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      •  Yes, I believe that. (0+ / 0-)

        Of course, I should throw out the caveat that my opinion only goes as far as US Person content.

        I do believe in the rule of law, and the most fascinating aspect of the whole Snowden affair, for me, was to get an up-close look at the operations of the FISA Courts, the legislative oversight, the regulations written by Attorney General Holder, the detail of all the oversight that was done ... even though America wasn't looking.

        All of that, the massive framework to ensure protections of civil liberties, was done in secret. I saw a lot of men and women working hard to get the balance right between privacy and security, and I would never have seen it if the curtain wasn't lifted.

        Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting. On biblical prophesy: If you play the bible backwards, it says, "Paul is dead."

        by Tortmaster on Thu Jan 30, 2014 at 06:19:13 AM PST

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        •  Yesterday I listened to (11+ / 0-)

          an interview with a former FISA judge who was asked about the perception that the court is basically rubber stamping requests. His response was interesting. He stated that the mandate and purview of the court is restricted to the rules governing the actions of the executive regarding his obligations to execute the law and protect the nation and not the larger general constitutional questions. I'm sure lawyers would understand what he was saying but to this lay person it sounded a bit like a judge in traffic court does not stray into constitutional questions but rather confines the debate and decisions to matters regarding more localized laws and regulations. In that he implied the big questions may not always enter into the FISA courts rulings but are more restricted.

          All in all I found this a bit disturbing since beyond the FISA court the system seems to have created a branch of government that has very little real threat of constitutional challenge because it's all classified and therefore unassailable. Thoughts?

          Growth for the sake of growth is the ideology of the cancer cell. --Edward Abbey

          by ricklewsive on Thu Jan 30, 2014 at 06:42:13 AM PST

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          •  You can listen to him yourself (6+ / 0-)

            at this link

            James G. Carr, a federal judge in Ohio who served as one of the FISA judges, believes in the FISA process. But he also believes that the jurists currently serving need a more complete picture of some of the cases presented to them.

            "During my six years on the court, there were several occasions when I and other judges faced issues none of us had encountered before," Carr wrote last summer in the New York Times. "A staff of experienced lawyers assists the court, but their help was not always enough given the complexity of the issues. ... Having lawyers challenge novel legal assertions in these secret proceedings would result in better judicial outcomes."

            Carr argued that "Congress could ... authorize the FISA judges to appoint, from time to time, independent lawyers with security clearances to serve 'pro bono publico' — for the public's good — to challenge the government when an application for a FISA order raises new legal issues."

            Growth for the sake of growth is the ideology of the cancer cell. --Edward Abbey

            by ricklewsive on Thu Jan 30, 2014 at 06:53:37 AM PST

            [ Parent ]

            •  I did listen to the link. Thank you. (1+ / 0-)
              Recommended by:
              ricklewsive

              I was interrupted by business and missed some of the middle portion of the interview, so I will listen again. Very interesting stuff. I'm going to guess that this Judge was one of the ones who was spread out across the country, as he's from Ohio, so I bet he didn't get in on a lot of "the action."

              As for your question, I think you basically answered it yourself with your analogy:

              "... it sounded a bit like a judge in traffic court does not stray into constitutional questions but rather confines the debate and decisions to matters regarding more localized laws and regulations."
              Except I would add a couple of caveats:  (1) Even though traffic judges hear only traffic cases, there is always, always the over-arching question of constitutionality. Those judges are assigned to traffic court so they hear only traffic cases, which usually don't involve questions of constitutional law, but they sometimes do, including 4th Amendment stops for DUI, for example. (2) What the Judge spoke of at the beginning of the link was that according to the Constitution, the Executive is in charge of protecting the nation from foreign threats. I think the Judge was just saying that that's the President's responsibility, and the Court doesn't work out how to protect the nation from threats, it is only assigned the job, under the law, to make sure what is done by the Executive is constitutional. So, in your hypothetical, it is the Senior Judge in a courthouse who assigns another judge to hear traffic cases, but with regard to foreign security, it is the Constitution that divvies up the responsibilities between the Executive and Judicial.  

              Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting. On biblical prophesy: If you play the bible backwards, it says, "Paul is dead."

              by Tortmaster on Thu Jan 30, 2014 at 11:19:51 PM PST

              [ Parent ]

          •  I think you must have ... (0+ / 0-)

            ... misinterpreted what the Judge said, ricklewsive, as the very function of the FISA Courts is to ensure that the searches do not impact, unconstitutionally, privacy rights. That's the only reason they exist.

            Perhaps the Judge said that he was constrained by Supreme Court precedent? That some deference has to be given to an agency's regulations and interpretation of the laws provided for it by Congress?

            Still, those courts exist only to hear the privacy issues.

            Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting. On biblical prophesy: If you play the bible backwards, it says, "Paul is dead."

            by Tortmaster on Thu Jan 30, 2014 at 06:53:47 AM PST

            [ Parent ]

        •  this is astonishingly naive (5+ / 0-)
          the massive framework to ensure protections of civil liberties, was done in secret
          It's like you're totally unfamiliar with the career of Edgar Hoover.

          You WANT me on that server! You NEED me on that server!

          by nota bene on Thu Jan 30, 2014 at 04:19:27 PM PST

          [ Parent ]

    •  Its just not true (19+ / 0-)

      to say that thie NSA is not collecting content.

       By law the government cannot find out these things about the faceless... the problem is they are not following the law. The NSA does not need a subpoena to trove information already in its 'corporate store'.

      http://www.emptywheel.net/...

      All that time, I increasingly believe, we should have been talking about the corporate store, the database where queries from the collection store are kept for an undisclosed (and possibly indefinite) period of time. Once records get put in that database, I’ve noted repeatedly, they are subject to “the full range of [NSA's] analytic tradecraft.”
      &
      The NSA prioritizes reading the content that involves US persons. And the NSA finds it, and decides what to read, using the queries that get dumped into the corporate store (presumably, they do some analytical tradecraft to narrow down which particular conversations involving US persons they want to read).

      And there are several different kinds of content this might involve: content (phone or Internet) of a specific targeted individual — perhaps the identifier NSA conducted the RAS query with in the first place — already sitting on some NSA server, Internet and in some cases phone content the NSA can go get from providers after having decided it might be interesting, or content the NSA collects in bulk from upstream collections that was never targeted at a particular user.

      The NSA is not only permitted to access all of this to see what Americans are saying, but in all but the domestically collected upstream content, it can go access the content by searching on the US person identifier, not the foreign interlocutor, without establishing even Reasonable Articulable Suspicion that it pertains to terrorism (though the analyst does have to claim it serves foreign intelligence purpose). That’s important because lots of this content-collection is not tied to a specific terrorist suspect (it can be tied to a geographical area, for example), so the NSA can hypothetically get to US person content without ever having reason to believe it has any tie to terrorism.

      In other words, all the things NSA’s defenders have been insisting the dragnet doesn’t do — it doesn’t provide content, it doesn’t allow unaudited searches, NSA doesn’t know identities, NSA doesn’t data mine it, NSA doesn’t develop dossiers on it, even James Clapper’s claim that NSA doesn’t voyeuristically troll through people’s porn habits — every single one is potentially true for the results of queries run three hops off an identifier with just Reasonable Articulable Suspicion of some tie to terrorism (or Iran). Everything the defenders say the phone dragnet is not, the corporate store is.

      "These are established professionals that have a liberal bent, but ultimately most of them if pushed will choose professional preservation over cause, such is the mentality of most business professionals" -BoA/HBGary/CoC

      by LieparDestin on Thu Jan 30, 2014 at 06:02:20 AM PST

      [ Parent ]

      •  I believe this goes to ... (0+ / 0-)

        ... the "capability" versus "actual reality" dilemma. I will look at her blog tonight to gain context. If Snowden or any of the journalists had this information, though, I think I would have seen it.

        Upon thinking about it for a minute longer, this may also have to do with the material that the FISA Court told the NSA to destroy or use their best efforts to destroy, and if they couldn't destroy it then get rid of all of the data. That was in one of the cases that has been made public. I'll check out her site tonight and re-read that case.  

        Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting. On biblical prophesy: If you play the bible backwards, it says, "Paul is dead."

        by Tortmaster on Thu Jan 30, 2014 at 07:40:36 AM PST

        [ Parent ]

      •  I did read that post, and ... (1+ / 0-)
        Recommended by:
        LieparDestin

        ... did not find any evidence that shows the Government is using the three hops as an excuse to look at US Person content. A lot of conjecture, but no proof. On the other hand, I've heard an actual FISA Court Judge state that the three hops can only be used for telephone numbers.

        That is, if you have a telephone number for a terrorist in Yemen, and you see that it called a telephone number in the US, then they can check to see what numbers that telephone number in the US called, and if any of those numbers match another known terrorist number, you can then use that information. What the Judge said, though, was that even that much information wouldn't allow you to check for content. You'd need more. I don't know what he meant by "more," perhaps there had to be additional contacts shown by other calls to other known terrorists or perhaps the frequency of the calls is the "more" that is needed to look at content. The same goes for the "third hop."

        So, in a nutshell, they can only match telephone numbers that have been called. Once they have enough information, they can get a warrant for a physical search or a wiretap (i.e. look for content).

        I've been on that site once before, and I will keep looking at it in the future. Thanks for the link.

        Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting. On biblical prophesy: If you play the bible backwards, it says, "Paul is dead."

        by Tortmaster on Fri Jan 31, 2014 at 03:29:58 AM PST

        [ Parent ]

        •  Still disagree (2+ / 0-)
          Recommended by:
          Tortmaster, TheMomCat

          with your conclusions but as Ive said the discussion is interesting. Marcy Wheeler is a national treasure (you may remember she was the go to person for coverage of the Scooter Libby trial, etc).

          "These are established professionals that have a liberal bent, but ultimately most of them if pushed will choose professional preservation over cause, such is the mentality of most business professionals" -BoA/HBGary/CoC

          by LieparDestin on Fri Jan 31, 2014 at 04:47:32 AM PST

          [ Parent ]

    •  It's funny, you can look at it like that, and (10+ / 0-)

      that's the way that the Establishment pushes it out there.

      From what I've read it seems to me that there is a retroactive permission that is sought through FISA. You don't go to FISA court with nothing, you go with a suspicion, and hopefully more than a suspicion.

      The question, to me, is how do you arrive at that suspicion if you can't look at any of the documentation.

      So that's a big problem for me.

      Another one is the 5 eyes. We seem to just send it out to our allies' spy services so they can send it back to us, and blammo - we've got a reason to hit FISA and go after that person.

      and then lastly -

      Omniscience is a powerful tool. It's terribly corrupting, I would imagine. It's bad enough that something like that exists within our government, but this is a public private partnership in a rapidly advancing field.

      There is no way that government is leading on this. Profits are, and that's terrifying.

      Democracy - 1 person 1 vote. Free Markets - More dollars more power.

      by k9disc on Thu Jan 30, 2014 at 06:10:13 AM PST

      [ Parent ]

    •  It has already been.... (8+ / 0-)

      ....proven that those numbers are not faceless and convey more information than I am willing to see in the hands of people who couldn't keep it safe from people like Snowden.

      For example if you made repeated calls to a proctologist one could learn you may be attempting to remove your head from your ass.

      We Glory in war, in the shedding of human blood. What fools we are.

      by delver rootnose on Thu Jan 30, 2014 at 06:23:31 AM PST

      [ Parent ]

    •  The indiscrimate collection of metadata... (6+ / 0-)

      is insidious at best. Any or all personal information the NSA desires -- about anybody -- can be extracted from it.

      'Cuz freedom can't protect itself ~~ EFF ~ EPIC ~ ACLU

      by markthshark on Thu Jan 30, 2014 at 06:23:35 AM PST

      [ Parent ]

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