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The NSA Programs Are Constitutional Because The Constitution Sucks on Electronic Surveillance and Always Has



We have to face an unsettling fact: The Fourth Amendment sucks. In the light of recent revelations by Edward Snowden in the Guardian and other media outlets that the NSA and FBI are engaged in widespread, indiscriminate collection of electronic data about phone calls, email, and social media, some media and blogosphere commentators have angrily denounced these programs as unconstitutional or illegal.

These programs may be outrageous. They may violate your sense of privacy. They may be expensive boondogles and they may be ineffective. They may make certain of you very uneasy about ordering your, ahem, "medical" marijuana from your, ahem, "medical marijuana dispensary" because apparently those phone records are now stored by the NSA for an undisclosed or indefinite amount of time.

But one thing they are not is unconstitutional. That's because contrary to popular opinion, the Fourth Amendment protections against certain kinds of searches and seizures -- wiretaps and electronic intercepts, for example -- are extremely, extremely weak.

So let's take a look at what the Constitution and Supreme Court actually say about electronic eavesdropping. The reason the debate over the NSA sometimes seems unbridgeable is that some commentators are evaluating it by the standard of what the law actually is, while others are evaluating it by the standard of what they would hope the law to be, or believe it to be. To paraphrase Donald Rumsfeld, we go into this struggle over electronic privacy with the Fourth Amendment we have, not with the Fourth Amendment we might like to have.

The Supreme Court has never held, for example, that the Fourth Amendment of the Constitution forbids the government from intercepting and recording electronic communications during warrantless searches or seizures; it has only issued decisions about how evidence obtained by such searches can be used in trials. For most of U.S. history, the Supreme Court gave an implicit green light to nearly unlimited electronic surveillance, eavesdropping and wiretaps by the government, and for most of that period, the government used that authority with reckless abandon.

The reason this is important to anyone who would like to change the NSA program and other forms of electronic surveillance, is that the Obama administration has been responsive to progressive critiques on many occasions. The president has said he wants to have a debate about the balance between security provided by electronic surveillance on one hand, and privacy required by the traditions of the Bill of Rights. The administration is responsive to critiques based on reality and empiricism; but, however, it has been dismissive of counter factual critiques, hyperventilating or strategies it considers illogical. In other words, if you actually want to change these programs, and have the administration listen, you can't start with a false premise, and the idea that the administration is violating the Constitution (or that President Obama as a former constitutional law professor should "know better") is a false premise.

Moreover, too much of the commentary is erasing our collective history. Too much of the commentary about the NSA programs posits a rosy past when law enforcement or intelligence agencies "obeyed the Constitution," as compared to this administration's "unprecedented" expansion of surveillance. This false history not only lets the Bush administration off the hook for its truly unprecedented and illegal use of surveillance but elides the awful 20th century history of the use of electronic surveillance to repress racial and ideological minorities, to undermine democracy, and to wage campaigns of imperialism and murder overseas.

If there's one thing that I've found characterizes the Obama administration, it's that they scrupulously adhere to the Constitution and the law. President Obama really is the "law professor president." The problem is that the administration adheres scrupulously to the letter of the law even if it seems that they sometimes miss the spirit of the law. There will be no real scandals in this administration (as opposed to made up fevered dream scandals). No drama Obama is for real.

Once you understand through empirical legal analysis that the administration adheres scrupulously to the letter of the law, you realize that with issues like the NSA, the public is reacting to the fact that the law sucks. In the area of electronic eavesdropping, wiretapping and surveillance, it has sucked for a really, really long time, and it actually sucks a lot less under this administration than the Bush administration, even though it still sucks. The public is reacting to the fact that we are back in Clinton era legal sucktitude, and that the pre-Bush past was not as rosy as we thought it was.

For example, consider this revelation by Steve Kroft, a host of CBS's "60 Minutes," about the NSA, which The New Yorker reminded its readers about back in June when the story broke:

STEVE KROFT, co-host:

If you made a phone call today or sent an e-mail to a friend, there's a good chance what you said or wrote was captured and screened by the country's largest intelligence agency. The top-secret Global Surveillance Network is called Echelon, and it's run by the National Security Agency ...

I would tend to trust "60 Minutes" because their broadcasts are meticulously fact checked, unlike certain bloggers, online pundits and "new media." You might think that this "60 Minutes" episode is piggy backing on the Guardian and Glenn Greenwald in exposing the NSA's program which basically, under the Obama administration, seems to record and screen the content every single phone call and email. If so, you would be wrong, because the date of this broadcast was February 2000. In other words, during the last year of the Clinton administration, 60 Minutes reported that the content of a substantial proportion of every phone call and email was being recorded and screened by the NSA or by its partner signals intelligence agencies in the U.K., Canada or Australia (as explained below, the partners were encouraged to spy on each other as this was an important means for each government to get around national privacy policies). This would obviously get worse during the Bush administration.  The other main change between the Clinton era and the Obama era is that the technology has gotten better and cheaper, and therefore the capacity for recording electronic communications has grown exponentially.

But, commentators who are angry, upset or surprised because they believe the Obama administration has created a new or unprecedented level of NSA eavesdropping on average Americans, were simply uninformed about the nature of U.S. signals intelligence and the NSA.  If they were angry and upset that the Obama administration did not dismantle certain NSA programs that have been in place for decades, their critique would be on firmer ground.



Constitutional Protections for Electronic Communications Are Still Shaped by Law of the Age of the Horse and Buggy, Player Piano and Telegraph: Or Why Telegraph Law Affects the NSA



Despite the explosive growth in technology, in many ways the law of electronic surveillance is grounded -- one might say stuck -- in a conceptual framework of the pre-technological age, starting with the text of the Fourth Amendment itself:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
I don't mean to point out the obvious, but the Fourth Amendment makes no mention of telephone calls, email, credit card transactions, tweets, cell phone locations or that embarrassing picture of your dog in floppy hat on Facebook.  Obviously such things had not been invented. Even the telegraph hadn't been invented.

I'm not a strict constructionist at all, so I totally get the argument that an email is an awful lot like a letter was 200 years ago. But I am a legal positivist and a legal realist (and I want to admit my bias here--although positivism is an epistemological bias, not an ideological bias, as people across the political spectrum have adopted positivism). That means that when I want to know what the law is, I look to the law books and their recording of what the authoritative legal institutions have said the law is. That doesn't mean the law is good or that I agree with it or don't think it could be improved with better law. But I prefer to know what the law actually is, and the law is what the law does. The law is not what Glenn Greenwald says he thinks it should be.

My point is that because email, telephones and the like aren't mentioned in the Constitution, the Constitutional law of electronic interceptions is entirely Supreme Court made Constitutional law.  The Fourth Amendment applies to telephones and emails only to the extent the Supreme Court has through interpretation expanded the amendment to cover these forms of communication and Congress has enacted laws to protect those court made rights. The decisions and opinions of the Supreme Court are the sole source of the minimum protections provided by the Fourth Amendment for electronic communications.

There's a cliche in legal studies: Where there's a right, there's a remedy.
Conversely, if the law does not provide a remedy, then there is no right. And a right is defined by the scope of the remedy the law gives a claimant. To use an example unrelated to the Fourth Amendment, we all know that the First Amendment provides for the separation of church and state. But what does that mean in practice? It depends on how the Supreme Court has interpreted that right. It means that a school child can sue to prevent his teacher from leading the class in prayer -- that is the school child's remedy. It does not mean that a school child can prevent his teacher from saying a silent, private prayer on school property in the teachers' lounge, nor from wearing a yarmulke or crucifix while teaching, nor from tithing part of her state issued paycheck to her local church. The scope of First Amendment remedies is set out in Supreme Court opinions and not in the text of the Constitution, which does not interpret itself or execute itself.

Generally, Constitutional remedies are described in Supreme Court decisions, opinions and orders, although Congress may and has shaped rights and remedies through plain legislation that includes enforcement mechanisms, and, as in the Fourth Amendment context, Congress can provide even broader rights and remedies than the Court. But when Congress enacts laws to provide more expansive protections of rights than the Constitution and the Supreme Court, it can also take away some of those expansive protections without violating the Constitution -- which is what has happened with the Patriot Act and several related amendments.

Unfortunately, the Supreme Court has not protected electronic communications particularly vigorously. The reason the Supreme Court's Fourth Amendment rights to electronic privacy are so weak is that the court has provided almost no useful remedies (outside of the context of criminal trials).

Historically, the rights the Supreme Court has provided under the Fourth Amendment to electronic privacy have been weak in part because of the wording of the Amendment and the context in which it was enacted. The Fourth Amendment talks about things and places -- persons, houses, papers and effects -- and for a long time it was difficult for courts to comprehend the idea of a right to privacy of information separate from the paper it was written on or the home and property where it was stored. Historically, the Constitution's drafters and many courts of the 1800s and early 1900s envisioned "search and seizure" as a problem of law enforcement officials breaking down doors, over turning desks, and grabbing every conceivable paper around regardless of relevance to a criminal investigation, and physically assaulting residents. "Search and seizure" usually involved acts that would have been criminal if carried out by civilians -- violent trespass, robbery, burglary, theft, conversion, assault and battery. It wasn't until 1967 (as explained below) that the Supreme Court finally seemed to embrace the idea of unreasonable search and seizure of information as being separate from trespass and theft.

The first laws against eavesdropping in England and colonial America were aimed at private citizens and shaped by the idea of trespass. Eavesdropping literally meant standing near the eaves of a home (a part of the roof) and listening to conversations taking place inside. This was considered a petty crime in England and colonial America. When law enforcement officials eavesdropped to get evidence, courts in England decided that the evidence was legal despite the fact that it had been obtained during the course of a petty criminal violation.  The courts of the states and of the United States followed those precedents. Evidence that a law enforcement agent obtained illegally was, therefore, nevertheless generally admissible in court.

Electronic eavesdropping first became a problem with the first electronic means of communication -- the telegraph. Again, it was mostly a crime committed by private citizens. When telegraphs made communications across the entire U.S. instantaneous in the mid 1800s, they revolutionized life -- from business to politics to military affairs, to even the very conception of what time and distance were. Simultaneity across vast distances was an entirely new way to think about the world. Businesses in San Francisco could trade on information in New York. But because telegraph messages were expensive and there were bottlenecks in the network, businesses began trying to steal information from each other by tapping telegraph wires. Early statutes made tapping the telegraph lines a crime.

Before looking into how the law reflected the functioning of the telegraph, it's worth pointing out for younger readers just what the device was and because, remarkably, the vocabulary of the telegraph governs to some extent, the NSA's collection of metadata. (Telegraphs have disappeared other than as historical objects and science projects.)

The telegraph was a remarkably simple but powerful device. At it's most simple, it's just an electromagnet (at the receiving end) connected to a switch (at the sending end). A piece of metal is suspended over the electromagnet. When the sender taps the switch or key, the magnet draws the piece of metal on the receiver down with a loud click; when the sender releases the switch the metal piece on the receiver rises. Samuel Morse invented a useful signal code of short clicks and long clicks (dots and dashes) representing the letters of the alphabet. The signal clicks travel along the wires at the speed of electricity, which is almost the speed of light, or practically instantaneously whether the sender and receiver are a foot apart or 1000 miles apart. It's really remarkable when you consider that the telegraph replaced the next fastest method of communication -- the pony express -- a system of fast young horseriders galloping between stations strung out across the western part of the country; the pony express could deliver a message between the midwest and California in 10 days; the telegraph in nanoseconds. Telegraph operators became extremely "fluent" in sending code, listening to code and writing it down, pretty much at the speed of conversation, as legendary radio host and story teller Jean Shepherd recounted of his days in U.S. Army signal corp.  Ironically, compared to analog telephones of the 20th century, telegraphs were digital in the sense that all data was reduced to a code similar to ones and zeros (dots and dashes).  When wireless telegraphy was developed, and people could communicate freely across great distances, it became astonishingly like the current internet, as Shepherd also recounted.

The first time that a national defense emergency showed the limits of electronic privacy was during the Civil War. President Lincoln became completely beguiled by the telegraph, and became the first president to be able to direct strategy of his generals in real time. He often moved out of the White House for days at a time to work in a special telegraph office set up for him and the Union forces. One of the bloodiest early battles of the Civil War -- Antietam -- was in part over telegraph lines (as well as rail lines), and the threat of Confederate forces to cut Washington's communications with the rest of the Union. Eventually, Lincoln seized the assets of telegraph companies, had the federal forces build thousands of miles of dedicated military telegraph lines, censored private telegraph messages, limited private telegraph messaging by the general public, and created a system that subordinated the telegraph companies to the military needs of the Union, not completely unlike the way the Bush administration subordinated the telecom companies to the needs of the "war on terror."

Although telegraphs were generally operated by young men who were fluent in Morse code, eventually many telegraph receivers became equipped with a pen to replace the clicker and a slowly moving roll of paper. This code writing device was called a "pen register." When telephones replaced telegraphs for most daily use, any device at a telephone company's offices that automatically recorded information about an outgoing call from a phone was also called a pen register.  This is the kind of information that in the current debate is called "metadata" -- that is, information about the call, but not the content of the call.  Pen registers in phone companies routinely recorded metadata for billing purposes.  Devices that recorded information about what numbers were called into a particular phone called were termed "trap and trace" devices. Law enforcement and intelligence agencies used pen registers and trap and trace devices throughout the 20th century. Despite the fact that a pen register was originally a simply telegraph recording device, when Congress enacted certain restrictions on recording metadata in the 1986 Electronic Communications Privacy Act (ECPA), the sections governing such devices were called the "Pen Register Act," even though no pens are used. These rules (discussed below) were extended to "trace and trap" devices. Federal statutory rules provide for a much lower standard -- in terms of the level of suspicion generating the law enforcement or intelligence agency's need to install metadata recording devices. Yet these standards are higher than the standard provided by the Supreme Court, which has ruled that metadata has no Constitutional protection whatsoever, and that no warrant is required to acquire it. So if you're wondering why the NSA thinks it can scoop up trillions of bits of metadata without warrants (even though it has in the recent revelations asked for them), it's because, among other things, a section of the ECPA that is named after a bit of telegraph equipment.



The Telephone Age: Olmstead v. United States, the Rise of J. Edgar Hoover, and the Death of the Fourth Amendment for Electronic Communications



The first time the Supreme Court faced the issue of whether it was legal for law enforcement authorities to use telephone wiretaps was in 1928 in the case of Olmstead v. United States. Although the media today has generally framed the debate about the NSA and wiretapping almost exclusively in terms of terrorism, for most of the 20th century, the wiretapping issue was raised in a wide variety of circumstances, but most of the cases that came before the Supreme Court were about organized crime prosecutions -- especially bootlegging during prohibition and gambling. Generally, these cases involved federal prosecutors and the FBI (or its federal precursors), and not the NSA, whose main job, historically, has been espionage against sovereign states and militaries; the NSA grew out of war time military signals intelligence (that is, military and diplomatic code breaking). Olmstead v. U.S. was a more typical federal case and the defendant was a bootlegger running a massive liquor smuggling business, and he was convicted on the basis of wiretaps of his office.

The Chief Justice at the time, William Howard Taft, wrote the majority opinion. Taft is one of the most unusual justices in history because he was the only justice who was a former President of the United States. Taft is somewhat difficult to categorize in terms of the politics of the time. For a while, he was considered Theodore Roosevelt's political heir as leader of the progressive movement within the Republican party, but as president he disappointed Roosevelt for his cautious and pro big business approach and his overall political ineptitude. As Chief Justice -- a job Taft had wanted all his life, far more than being president -- he was also cautious and emphasized the "rule of law," which to him seemed to represent a preference for simply keeping the law as it was. The Court decided that a telephone conversation was not like papers and letters, and the prosecution could introduce evidence from the wiretap even though it had been carried out without first obtaining a warrant.

What I find most fascinating about Olmstead and other cases of the time is how difficult the court found it to grasp of the idea of information as being separate from things. The opinions also give us tremendous insight into how out of control law enforcement was at the time. So before you can fully appreciate the reasoning of Olmstead, you have to understand the prior Supreme Court case that Omstead was a direct reaction too -- Weeks v. United States, arguably the most important case on the Fourth Amendment the Supreme Court has ever decided because it was the source of the main remedy the court has applied in search and seizure cases ever since -- simply excluding evidence obtained without a warrant from criminal prosecution.

Weeks was also a federal prosecution -- in this case of a defendant who was running an illegal lottery, despite having a full time job at a business. Weeks was arrested by the police, while other police searched his residence without a warrant and confiscated various books and papers which they turned over to a federal marshal, who also then searched the residence without a warrant.

What's fascinating, though, is the description of the scope of the seizure -- they broke down Weeks's doors and took his stocks and bonds (worth over $12,000, which was a lot back then), heirlooms, "all of his books, letters, money, papers, notes ... insurance policies, deeds, abstracts, and other muniments of title, bonds, candies, clothes, and other property." It's also fascinating that Weeks seemed mainly concerned with getting his possessions back; he petitioned the prosecutors for their return. Eventually, they returned some of his possessions, but retained material they thought was relevant to the prosecution. The Supreme Court held in favor of Weeks, deciding that as a deterrent to unreasonable searches and seizures without a warrant, the seized evidence could not be used against Weeks at trial. This was the birth of the "exclusionary rule." The Court made passing reference to the dreadful state of citizens' rights under the law enforcement practices of the day:

The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.
One of the aspects of the debate about the current NSA scandal I find perplexing is the number of commentators, bloggers and even respected, knowledgeable journalists who posit that before the war on terror there was a golden age stretching back to the founding fathers when the Fourth Amendment was sacred -- something I heard for example Robert Scheer say a few weeks ago on NPR. This is simply nonsense. The age of Weeks and Olmstead was the age of lynching (assisted by local law enforcement); police beatings and forced confessions; summary rounding up of political "undesireables," like communists, socialists, union organizers, civil rights advocates and pacifists; and the routine seizure of evidence without a warrant, and as I'll show below, unconstrained wiretapping and electronic surveillance.

This was, moreover, an era when the Fourth Amendment didn't even apply to states, and hence not to local law enforcement. The Bill of Rights would only be applied to the states on a case by case basis during the 20th century under the doctrine that the Fourteenth Amendment "incorporated" the Bill of Rights making them applicable to the states. The Fourth Amendment only became applicable to state and local governments in 1949.  

So the question before the Court in Olmstead was whether the rule in Weeks -- that evidence seized in violation of the Fourth Amendment could not be introduced at trial -- was applicable to phone call wiretaps.

Justice Taft focused on the fact that the Fourth Amendment was about tangible things:

The well known historical purpose of the Fourth Amendment, directed against general warrants and writs of assistance, was to prevent the use of governmental force to search a man's house, his person, his papers and his effects, and to prevent their seizure against his will.
Taft also distinguished phone calls from letters, which even while possessed by the U.S. Post Office, could not be opened and searched, and in several passages emphasized that the wiretap took place outside Olmstead's office, in the basement of the office building, and that there hadn't been any trespass of an actual place:
The United States takes no such care of telegraph or telephone messages as of mailed sealed letters. The Amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing, and that only. There was no entry of the houses or offices of the defendants.

By the invention of the telephone fifty years ago and its application for the purpose of extending communications, one can talk with another at a far distant place. The language of the Amendment cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office any more than are the highways along which they are stretched.

Taft made one prescient prediction, though -- that Congress could if it wanted provide more protection to telephone privacy than the Court was willing to provide.

Justice Oliver Wendell Holmes agreed with Justice Taft, but showed his disdain. He called wiretapping a "dirty business" and noted that wiretapping was a crime under the state law that was applicable although not under federal law, and that the government should not be obtaining evidence through criminal behavior.

Justice Louis Brandeis dissented with a more prescient analysis. He noted that technology was changing quickly and could invade anyone's most intimate privacy, and that the crude violent searches and seizures of the past were not the only unreasonable searches the Constitution should protect against under these evolving technological circumstances:

"We must never forget," said Mr. Chief Justice Marshall in McCulloch v. Maryland ... "that it is a constitution we are expounding." Since then, this Court has repeatedly sustained the exercise of power by Congress, under various clauses of that instrument, over objects of which the Fathers could not have dreamed...

When the Fourth and Fifth Amendments were adopted, "the form that evil had theretofore taken" had been necessarily simple. Force and violence were then the only means known to man by which a Government could directly effect self-incrimination. It could compel the individual to testify -- a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life -- a seizure effected, if need be, by breaking and entry. Protection against such invasion of "the sanctities of a man's home and the privacies of life" was provided in the Fourth and Fifth Amendments by specific language...  But "time works changes, brings into existence new conditions and purposes." Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet...

The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.

Brandeis realized, unlike Taft, that the Fourth Amendment was not just a protection against the government taking "your stuff"; but that read with the Fifth Amendment, it prevented the government from coercing a defendant into self-incrimination and confession through the use of your private communications against you. Brandeis also was ahead of his time in recognizing that it was the information that was being searched and seized, and not just the piece of paper, and although he seems to have been envisioning X-rays as a technological way of seizing information, one of the reasons this conceptual leap is important in the digital age, is that information is now non-possessory and infinitely reproduceable. In the age of Olmstead, if the government seized my diary and took possession of it, I no longer had possession of my diary. We couldn't possess it at the same time.  In the digital age (even back in the Xerox age), the government could seize the information on my on-line diary or email or digital wireless phone call without depriving me of possession of that information or the vehicle I put it in; they can possess my information without taking it from me, and without my even knowing they have done so. This is what Brandeis was foreshadowing.

Olmstead was the law for the next 40 years -- until 1967, and law enforcement at all levels had a free hand to spy on its citizens. Another justice noted for his sympathy for civil liberties, Justice Felix Frankfurter, tried to reign in the electronic snooping somewhat in a case, Nardone v. United States, that seems not to have been followed much.  In 1934, the New Deal congress passed the Federal Communications Act, which sought to place regulation of electronic communications under the newly created Federal Communications Commission (FCC). It contained an ambiguous provision that made it a crime for an "employee" to disclose the contents of electronic communications. I think most observers thought that the clause applied to employees of the telephone companies and was intended to prevent them from listening in to customer conversations and disclosing to others what they heard. In a bit of a stretch, Frankfurter, wrote an opinion that said that this provision applied to all employees of all kinds, including federal agents while employed by the government, and that these agents could not disclose the content of wire taps in federal prosecutions without violating the statute, and that evidence procured through warrantless wiretaps wasn't admissible in court. But the problem with Nardone is that Frankfurter wasn't announcing a Constitutional rule; he was just interpreting a federal statute, and federal statutes could be changed by Congress. This case did set the precedent that Congress tended to provide more protections against wiretapping than the Supreme Court -- in essence creating statutory rights above and beyond the meager to non-existent Fourth Amendment right against electronic surveillance.

Even those meager federal statutory rights were no match for the man who would run rampant with federal electronic surveillance for nearly a half century, because around the time that cases like Olmstead and Nardone were being decided, J. Edgar Hoover was building the new federal law enforcement agency, the Federal Bureau of Investigation, into a cancer on American democracy and a Gestapo. I realize that calling Hoover's FBI a Gestapo risks proving Godwin's rule, but both Eleanor Roosevelt and President Harry Truman made the comparison. Truman wrote:

We want no Gestapo or secret police. FBI is tending in that direction. They are dabbling in sex-life scandals and plain blackmail… Edgar Hoover would give his right eye to take over, and all congressmen and senators are afraid of him.
Despite President Truman's misgivings, this era and the subsequent decades were  the heyday of FBI director J. Edgar Hoover, who then proceeded to wiretap virtually the entire political class -- and use the information obtained for influence and even blackmail. Curt Gentry's meticulously researched biography, J. Edgar Hoover, the Man and His Secrets, argues that Hoover was literally unhinged. The L.A. Times review of the book was entitled, "The Lunatic in Our Asylum" and notes:
But Hoover had a much more dangerous flaw, which many inside and outside the FBI noticed: He was, in a way, mentally deranged. One attorney general (the AG was, officially though not in fact, Hoover's boss) thought he was just plain nuts. The Kennedys often spoke of Hoover's "cartoonlike lunacy."

They were not referring merely to his idiosyncracies--his compulsive hand-washing, his becoming unhinged at the sight of an unswatted fly, his insistence that agents not step on his shadow, his fanatical anti-fat crusade (one agent, writes Gentry, "was given a letter of commendation for single-handedly breaking up a Soviet spy ring, then fired because of his weight").

They meant the kind of intense battiness, and threat, that Gentry best captures in this quote from an old FBI agent to a rookie, back in 1958: "You must understand that you're working for a crazy maniac and that our duty . . . is to find out what he wants and to create the world that he believes in ."

The lax Supreme Court jurisprudence about the Fourth Amendment's role in electronic surveillance combined with Hoover's successful blandishments of presidents gave Hoover a green light to carry out several types of illegal surveillance; historical accounts suggest that three of the most important techniques Hoover's FBI used were (1) warrantless wiretaps, (2) bugging and (3) black bag jobs. A wiretap was a way of listening to a target's telephone conversations, and the tap could be placed at any number of places, from near the phone itself, to basements and utility rooms of office buildings, to wires outside on the telephone pole, to the telephone company offices. Bugging involved placing listening devices, like microphones and transmitters inside a target's residence. A black bag job was slang for breaking and entering a target's home or office -- that is, while carrying the tools of the trade of burglars in a black bag -- in order to snoop around, gather papers or place bugging or wiretap equipment.  

Ironically, Truman, like every president before or after him during Hoover's tenure, used and abused the information that Hoover illegally acquired. For example, shortly after Truman became president, Hoover began providing Truman with wiretaps of U.S. citizens, including people prominent in the political scene in Washington, people completely not suspected of committing any crimes. Hoover had carried out wide ranging domestic surveillance during the war for President Roosevelt, mostly to search for Nazi sympathizers or communists who, although generally part of the progressive movement of the day, were also suspected of being more loyal to the Soviet Union than to the United States. Hoover used that authority to engage in wide ranging political surveillance, although President Roosevelt occasionally tried to reign Hoover in from irrelevant investigations.

Shortly after Truman was inaugurated, Hoover offered one of President Truman's top aids a memo that began, “I thought you and the President might be interested to know…” and that contained political gossip. This was how Hoover ingratiated himself with presidents, who then became Hoover's patron and protector, while also being dependent on Hoover and potentially Hoover's victim. Within a few weeks, Truman had through intermediaries asked Hoover to carry out illegal surveillance on a political rival, the legendary New Deal lawyer, Tommy "the Cork" Corcoran, who had gone into private practice in Washington as a fixer and lobbyist. Corcoran had a low opinion of Truman, and the transcripts of the surveillance Hoover provided Truman included observations that Truman was "dumb" and surrounded by "mediocre" political hacks from Missouri. Obviously this was catnip for the cat, and effectively gave Hoover a green light to continue wide ranging political surveillance of virtually the entire political elite. Hoover carried out surveillance of Corcoran for three years, even though he was not suspected of any crime or subversion.

Hoover even investigated Eleanor Roosevelt when she was First Lady and President Roosevelt was still alive, although the president managed to find out about and quash one such rogue investigation. After Roosevelt's death, Hoover stepped up his surveillance of Eleanor Roosevelt, in part because he didn't approve of her involvement in the founding of the United Nations, and Mrs. Roosevelt remained a target of Hoover for decades after, generating thousands of pages of investigative reports about her left wing, progressive and civil rights associations.

Like most Attorneys General, President Eisenhower’s, Herbert Brownwell, either declined or was unable to control Hoover’s wiretapping, even though officially, the FBI director was supposed to get approval for wiretaps from his boss, the AG, and Brownwell instead gave Hoover carte blanche to do as he pleased with the technique. Brownwell wrote that Hoover’s wiretaps and bugging  were the only way to keep tabs on spies and subversives, and that they couldn’t be limited to criminal investigations for the purpose of prosecution because the “FBI has an intelligence function in connection with internal security matters equally as important,” and “considerations of internal security and the national safety are paramount and, therefore, may compel the unrestricted use of this technique in the national interest.”

Hoover "generously" and out of a sense of concern, provided Joseph P. Kennedy, the father of John F. Kennedy, with a transcript of one of the young Senator Kennedy's sexual adventures with a woman other than Jackie Kennedy, and even during the Kennedy administration made JFK and his brother, Attorney General Robert Kennedy, and nominally Hoover's boss, aware that he had information about about his affairs while president.

In the current debate, many commentators, who are ordinary people and bloggers, seem concerned that "their" information is being gathered, which is a legitimate concern. But what's missing from the discussion is the historical context, in which Hoover intimidated the entire governing class, affecting policy, laws and appointments. Hoover could prevent a judge from being nominated to the Supreme Court or a politician from getting a cabinet appointment simply by suggesting that he had damaging information on the person and that the person wouldn't pass the FBI's "background check." No attorney general could effectively supervise him and no president could ask for his resignation or fire him. President Nixon tried to fire Hoover twice; mysteriously after being called to the White House, Hoover left, still in his job, having somehow defeated Nixon.

Several boomer age DK members have mentioned obtaining information about their "FBI files" presumably generated during the 1960s. FBI files typically began with a report or investigation of one organization or person, sometimes not suspected of crime but simply deemed subversive, but under their operating rules, the mention of virtually anyone else in the report in turn generated a new file. In other words, being a friend or associate of a target of a secret investigation made that friend or associate, at least passively, yet another target. Estimates of the number of files generated this way range up to 55 million.

But in Hoover's FBI, the tip of the iceberg was more dangerous than the submerged iceberg. Hoover kept an entirely separate filing system for his personal use. Part of his office at FBI headquarters was considered Hoover's personal office, which his closest colleagues described as a place where he kept things like his stock certificates and tax returns. In this personal office, however, Hoover kept two sets of files on targets of FBI spying that Hoover considered not to FBI property. Officially, they were known as Hoover's "Personal" files and "Official/Confidential" files, but colloquially, they were known as Hoover's "secret files." While the official FBI files were scrupulously, meticulously indexed -- a legacy of the fact that one of Hoover's first jobs was working in the Library of Congress -- the secret files were indexed in a cryptic way that only Hoover and a few of his closest associates could understand. These were the most damaging, dangerous, and sensitive files that Hoover amassed.

When  Hoover died somewhat suddenly in 1972, there was a mad scramble, which would have been funny if it hadn't been so tragic and scary, for the secret files . Nixon was determined to get some control over the rogue FBI -- not because he was a lover of the rule of law, but because Hoover had refused to carry out Nixon's own rogue spying operations. Nixon appointed L. Patrick Gray, an FBI outsider as Acting FBI Director, and one of his first most urgent assignments was to get control of Hoover's "secret files." Hoover's closest subordinates flat out lied to the new FBI director, claiming the files didn't exist. Meanwhile,  Hoover's long time executive assistant, Helen Gandy, began destroying some of the files and moving others to the home of Hoover's long time domestic partner, Clyde Tolson. A virtual clown car of politicians and officials began the search for the secret files, including President Nixon, Attorney General Richard Kleindienst, Acting Director Gray, and CIA counter intelligence chief James Jesus Angelton. While Freedom of Information Act requests for official FBI files have shed a great deal of light on what kind of information the FBI was collecting on citizens, ordinary and elite alike, we'll probably never know what dirt was in the secret files, which Miss Gandy and other Hoover associates spent the next several months destroying.

In the 1950s and 1960s, the Supreme Court began issuing opinions that supported civil rights, civil liberties and voting rights. But J. Edgar Hoover was unaffected by the changing political and legal winds. As discussed in detail below, in 1967, the Supreme Court finally decided that the Fourth Amendment applied to telephone wiretaps in the case of Katz v. United States. The only remedy provided in Katz, however, was the extension of the exclusionary rule to evidence obtained by illegal wiretapping, and this seems only to have spurred J. Edgar Hoover on -- as though the prohibition on the use of warrantless wiretap evidence in criminal prosecution was an approval of the use of warrantless wiretaps for everything other than criminal prosecution, from monitoring "subersives" to keeping tabs on members of the elite political and journalistic classes.

In the 1950s and 1960s, the FBI created a secret Counter Intelligence Program called COINTELPRO. While a full discussion of COINTELPRO would require an entire separate series of blog posts, some of the things that distinguished it from the electronic surveillance that Hoover had carried out before were that it was carried out on a massive scale; it targeted groups that even by Hoover's prior reactionary standards would not have been considered subversive, like peace groups, civil rights groups, women's rights organizations, and student organizations; it involved not just surveillance, but infiltration and disruption by FBI personnel as agents provocateurs, mass electronic surveillance, false planted news stories and smears, threatening anonymous phone calls, cooperation with local law enforcement to make false arrests and perjured police testimony to put activists in prison, and eventually assassinations.

As part of the program, Hoover's FBI targeted "Black Nationalist Hate Groups," which included Martin Luther King's Southern Christian Leadership Conference and Malcolm X's Nation of Islam. The program's targeting of the Malcolm X and the Nation of Islam probably contributed to the vehemence of the Nation's hatred for Malcolm after he divulged aspects of the sexual scandals surrounding the Nation's leader Elijah Muhammad, and Malcolm's eventual assassination. The iconic picture of Malcolm X standing by the window of his Queens, New York home has become a contemporary symbol of Malcolm's militancy and belief in self-defense "by any means necessary," but at the time, it was seen more as a symbol of the terrified paranoia that had engulfed Malcolm as a result of the endless stream of threatening phone calls, harassment and surveillance he received from both the Nation and FBI, and a year later, the firebombing of his home. With respect to the Southern Christian Leadership Conference, in addition to applying the usual techniques, Hoover became obsessed with Dr. King's sex life and used black bag jobs and bugging to make extensive recordings of King's sexual affairs. On at least one occasion, he had transcripts anonymously forwarded to King's wife. Hoover also shared transcripts of King's sex life with Jackie Kennedy in order to turn the Kennedy family against King and the civil rights movement.

Ironically, just as President Nixon was escalating his pervasive electronic surveillance and harassment of his "enemies, " Hoover began cutting back on the FBI's illegal activities. Ironically, Hoover's new caution may have contributed to Nixon's Watergate scandal, because without the FBI to do his dirty work, Nixon decided to create an internal White House unit to carry out its black bag jobs, bugging and wiretaps directly. Only after Hoover's death and Nixon's resignation did the federal government begin to apply some semblance of Constitutional rule of law to electronic surveillance.

To put this in overall historical perspective, from the commercialization of the telegraph in the 1850s until today, Americans have only had a federal government at least publicly and nominally committed to not using wiretaps of their electronic communications and telephone conversations without a warrant, from the late 1970s (death of J. Edgar Hoover in 1972, the resignation of President Nixon in 1974, and passage of FISA in 1978) until September 11, 2001, and from the inauguration of President Obama and the suppression by CIA Director Leon Panetta and Attorney General Eric Holder of President Bush's warrantless wiretapping program in 2009 and today (4 years) -- or 27 years out of 170 years of electronic communication, about the lifespan of a recent college graduate out of a century and a half.

The regime that has replaced the Fourth Amendment lawlessness of the last 200 years, however, is deeply flawed. The  Supreme Court has continued to refuse to provide meaningful remedies for warrantless wiretapping and other forms of electronic surveillance.

Congress has fitfully provided more protection than the Supreme Court has been willing to give,  but what the Congress giveth, the Congress can taketh away.








Next installment:

Katz v. United States (1967) - Supreme Court finally decides the Fourth Amendment applied to telephone calls, but the only remedy is the exclusionary rule

United States v. United States District Court (1972) - In a criminal prosecution of radical activists, the federal government was found to have engaged in extensive warrantless surveillance of the defendants; although the Court wrote extensively about the purpose of the Fourth Amendment, the only remedy was sharing of illegally obtained evidence.

Smith v. Maryland (1979) - Electronic surveillance of a defendant using a "pen register" was not a search at all; the government need not get a warrant for telephone metadata, and metadata is completely outside the Constitutional protections of the Fourth Amendment.

Clapper v. Amnesty International USA (2013) - Organizations believing they may be subject to electronic surveillance under FISA amendments lack standing to bring Constitutional challenge.

How Snowden's revelations could help in the Amnesty International cases.


UPDATE:
Hey all, I'm so honored to be in the Community Spotlight!

Originally posted to HamdenRice on Tue Jul 16, 2013 at 12:26 PM PDT.

Also republished by Black Kos community and Community Spotlight.

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Comment Preferences

  •  This is really a fantastic contribution. (40+ / 0-)

    Diaries like this are the heartbeat of this place.  Many thanks.

    "And now we know that government by organized money is just as dangerous as government by organized mob." -- FDR

    by Mogolori on Tue Jul 16, 2013 at 12:51:56 PM PDT

  •  I hope this diary gets the attention it deserves. (32+ / 0-)

    I am always annoyed by people on both the right and the left that claim that any reasonable person can just read the constitution and determine what is constitutional. Of course their test of a reasonable person is one that agrees with them.

    •  I agree, because at its core it is saying that (8+ / 0-)

      legal precedents have over-ridden the intent of the 4th Amendment, which was to protect innocent people from persecution by their government.

      I think at the end of the day, the original intention of the 4th Amendment cannot have some legal jujisu overcome the protection.

      Obviously the authors of the Constitution did not know digital information, BUT they knew full well about how over-reach of government to bully critics is old is time.

       

      Separation of Church and State AND Corporation

      by Einsteinia on Tue Jul 16, 2013 at 03:55:32 PM PDT

      [ Parent ]

      •  I don't think that we agree. (12+ / 0-)

        I don't believe that people drafting a constitution in 1789 had any idea of what the world would be like in the 21st C and attempting to understand their intent is next to useless in terms of how to deal with the present world. It becomes a matter of projecting your beliefs and understanding onto people long dead.

        Constitutional law has to be updated with the passage of time. That has been done by the creation of case law or the occasional amendment. In my view the constitution is not a religious text and it does not contain divinely inspired eternal principles.

        •  If you are somehow asserting (8+ / 0-)

          that it is at all controversial that the 4th Amendment to Constitution was a protection from persecution from the government by forbidding "illegal search and seizure" then I guess we do disagree.

          You can say white is the new black, and then cite Cornball vs. Suckerpunch, (1973) 109 USD 4th North Dakota, but no amount of smoke and mirrors is going to undercut what we all learned from grade school through Political Science 101.

          At the end of the day, the wording of the Constitution is clear and not many are going to fall for a bait and switch , and if courts have tried to water it down to a toothless concept, it still stands loud and clear for all to see in its original form.

          Fortunately, EFF and the ACLU agree that what is going on is over-reach on the 4th Amendment.  

          So, get out your popcorn!

          Separation of Church and State AND Corporation

          by Einsteinia on Tue Jul 16, 2013 at 04:49:05 PM PDT

          [ Parent ]

          •  I think the point is ... (16+ / 0-)

            historically, the SCOTUS thought of search and seizure as search and seizure of people, places and things.

            Thanks to Katz, it's also of private information.

            But the remedy has always been limited to the judicial realm. I think the court simply didn't think it could order the executive branch not to do things, but could tell other courts not to admit things.

            This is not about the "gutting" of the 4th Amendment. It's that the 4th Amendment never meant what many people think it meant and has never been enforced to say what people think it meant.

            Just as the 1st Amendment doesn't forbid wearing yarmulkes and crucifixes by teachers in class (although this might happen in France) but does forbid leading prayer in class. The Constitution isn't gutted; it's what the Court interprets it to be.

            •  but in reality, if (5+ / 0-)
              the SCOTUS thought of search and seizure as search and seizure of people, places and things.
              Then, it would logically include the digitized equivalents of same.

              Because if not, then you have a really strange legal precedent that would not recognize:
              --electronic transmission of votes
              --electronic transmission of money
              --electronic transmission of court decisions
              It just is not logical, and it seems to me that it quite disingenuous of anyone legal attempts to find loopholes that would imply otherwise.

              Separation of Church and State AND Corporation

              by Einsteinia on Tue Jul 16, 2013 at 05:00:34 PM PDT

              [ Parent ]

              •  No (13+ / 0-)

                Because in the late 1800s and early 1900s, lawyers, judges and legal scholars were immersed in the idea of "possession." There were concrete things. If I  could possess something, you could not possess that thing.

                Information was papers.

                Information divorced from things the information was written on was hard for them to understand, which is why Brandeis was so ahead of his time.

                Other than someone like Brandeis who was speculating about science fiction futures, how could Taft or Holmes have thought about "digitized" information?

                •  Much less Munroe n/t (3+ / 0-)
                  Recommended by:
                  TomP, Larsstephens, Yasuragi
                •  I do not doubt there will be attempts to polka (3+ / 0-)
                  Recommended by:
                  CroneWit, WisePiper, native

                  around the 4th Amendment by asserting this world is different and no one could have imagined it, or to focus on possession, but in the light of common sense the common reading will prevail or we just won't be a democracy anymore.

                  Separation of Church and State AND Corporation

                  by Einsteinia on Tue Jul 16, 2013 at 05:34:19 PM PDT

                  [ Parent ]

                •  Lets begin with what the 4th amendment says (1+ / 0-)
                  Recommended by:
                  Buckeye Nut Schell

                  The 4th amendment says"

                  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[
                  Think of the written law as like the Ten Commandments, carved in stone, housed in an ark the ark placed in a sanctuary, intended to be both sacred and sovereign forever over all the spoken words of men.

                  Does it mean what it says or what those who interpret it say? I would argue it always means what it says first.

                  Lets take the limitation of security as given to be in their "persons, houses, papers and effects" and as further limited by the phrase "unreasonable. Is it reasonable for people with a right to be secure against unreasonable searches and seizures to be told that all searches and seizures are reasonable?

                  Do you feel secure knowing that the government is collecting everything that exists without a warrant, under a directive by General Alexander to "get it all"?

                  I would say no, there have to be limits.

                  Lets allow the meanings of written words can be argued as having both narrow and extended constructions, and competent administrators or judges can be assigned the responsibility to measure, weigh, and judge what the words have been held to mean in the past, in their sense in the common law or common understanding and their decisions may be themselves taken as precedents.

                  Your person might be extended to be your corporation since corporations are now people and to include everything your corporation owns.

                  If that's the case we can understand the whole phrase persons, houses, papers and effects to include your corporations buildings, its possessions capable of being listed on a piece of paper, its written or inferable agreements, contracts and covenants with men and gods, your freedom of association, both social and personal and in terms of what you are entitled to as regards the pursuit of happiness, and in the biblical sense of house its sphere of influence, your extended family, friends, business associates, employees who might be welcome in your house, their offspring and animals as well as yours who might be covered, sheltered, or protected under your roof; who might recognize your house as your castle, its lands, fiefs, vassalage's, armies, and all the people who owe you service in return for the benefits of being a part of your house.

                  Your house includes all of the property in the house covered, sheltered or protected under its roof, within the walls of your castle, its lands, etc; it might moreover in the sense of intellectual property include all of your ideas, conjectures, writings, papers, sketches, drawings, works of art, proposals, computer programs, anything which can be read whether written on paper or carved in stone, or captured in ink or pencil or magnetized media and presented as displays of photons.

                  When we speak of papers we certainly include your books even though printed on clay coated paper, your contracts even if sealed in wax, your drivers license and credit cards and passport even though printed on or encased in plastic, your sheepskin on the wall that certifies you as entitled to practice your profession, your awards even if engraved on metal, the hard drive of your computer which stores your words which can be read as electrons on a magnetized disk. The plain meaning of your "papers" is your records. It includes your photographs whether stored on your computer as .jpgs, .gifs, .pngs, or printed on a plastic coated paper suitable for use as a yard sign.

                  Your effects are generally taken as anything important enough to you that you might take possession of it. It could be your wallet jammed in your pocket or your keys in a purse, or souvenir campaign buttons stored in a cigar box or the old cell phones stored amidst pens, cigar lighters, stamp pads, paper clips, rubber bands, batteries, extra pairs of eyeglasses what have you in the junk drawer of your desk, or the three stories of hoarded collectibles in your barn.

                  The fourth amendment says"

                  The right of the people ... shall not be violated ...
                  Bottom line the fourth amendment means to most of us that the government can't reasonably demand to put hands on us or touch our stuff. We don't like that and we have a right to just say no and not be violated.

                  In addition to that

                  ... and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
                  the government can't reasonably demand the special authority of a warrant allowing them to put hands on us or touch our stuff without a good enough reason and a strong enough authority that we are gonna give it up without a fight and they are not gonna have to pry that AK47 out of our cold dead hands.

                  The normal state of affairs is that No warrant shall issue

                  At the "very core" of the Fourth Amendment, the Court would say, is "the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion
                  Probable cause isn't good enough unless there is an oath or affirmation.

                  Probable cause with an oath or an affirmation still isn't good enough unless it particularly describes the place to be searched;and the persons or things to be searched.

                  In Katz v. United States (1967), 389 U.S. 347 (1967), the Supreme Court expanded that focus to embrace an individual's right to privacy, and ruled that a search had occurred when the government wiretapped a telephone booth using a microphone attached to the outside of the glass. While there was no physical intrusion into the booth, the Court reasoned that: 1) Katz, by entering the booth and shutting the door behind him, had exhibited his expectation that "the words he utters into the mouthpiece will not be broadcast to the world"; and, 2) society believes that his expectation was reasonable. His reasonable expectation of privacy thus provided the basis to rule that the government's intrusion, be it electronic or physical, was an unreasonable search.

                  This was later developed into the now commonly-used two prong test, adopted in Smith v. Maryland (1979),[24] to determine that there is a right of privacy in a given circumstance when:[25]

                      a person "has exhibited an actual (subjective) expectation of privacy"; and
                      society is prepared to recognize that this expectation is (objectively) reasonable.

                  Following Katz, the vast majority of Fourth Amendment search cases have turned on the right to privacy, but in United States v. Jones (2012), the Court ruled that the Katz standard did not replace earlier case law, but rather, has supplemented it.[26] In Jones, law enforcement officers had attached a GPS device on a car's exterior without Jones' knowledge or consent. The Court concluded that Jones was a bailee to the car, and so had a property interest in the car.[27] Therefore, since the intrusion on the vehicle – a common law trespass – was for the purpose of obtaining information, the Court ruled that it was a search, and was unreasonable absent a warrant. The Court used similar "trespass" reasoning in Florida v. Jardines (2013) to rule that police cannot bring a drug detection dog to sniff at the front door of a home without probable cause and a warrant.[28]

                  Wikipedia cites 94 some odd cases providing various "supplements to the amendment since 1967

                  Live Free or Die --- Investigate, Incarcerate

                  by rktect on Thu Jul 18, 2013 at 05:17:02 AM PDT

                  [ Parent ]

            •  The best operational definition (9+ / 0-)

              of constitutional is what a majority of justices on SCOTUS say it is.

              I think that your point about courts not stopping action by the executive branch is interesting.
               The courts assert the power to tell congress that they passed laws that are unconstitutional and to block their enforcement. That not only nullifies the action of congress but directs action on the part of the executive. That seems like stopping the actions of other branches.

              If one of the suites about FISA ever gets before SCOTUS, that would be an opportunity for them to tell the executive to cut that stuff out, if they so wished.

              •  What is constitutional is whatever nine (6+ / 0-)

                robed individuals decide is constitutional, as dictated by their own individual prejudices and ideologies, at any given point in history.

                This is the great failure of our system here. To my knowledge, every other modern democracy has a living constitution which is rewritten, or at least reviewed and reratified every few years. Our process for amending our (by comparison) dead constitution is ridiculously cumbersome, as evidenced by the fact that it has only happened 17 times (after the original 10 amendments) in our entire history.

                What I find fascinating in a political context is that undoubtedly many of the status quo defenders who'll take solace in the diarist's point about the founders having no ability to conceive of digital data will, on the other hand, argue that of course the founders' declaration that the people are entitled to keep and bear arms had anything other than muskets in mind.

                Each of our comments is a butterfly in the Amazon. Be ever mindful of the hurricanes we spawn.

                by WisePiper on Tue Jul 16, 2013 at 11:35:44 PM PDT

                [ Parent ]

                •  Awkwardly phrased, but (6+ / 0-)
                  Recommended by:
                  liz, StrayCat, mkor7, HamdenRice, native, CroneWit

                  I hope you get what I mean. If any RKBA types want to make the case that of course the founders meant the 2nd Amendment protections to extend to semi-auto assault weapons, they'd better NOT also claim the 4th doesn't apply to digital data since the founders could not have conceived of this form of information storage.

                  Each of our comments is a butterfly in the Amazon. Be ever mindful of the hurricanes we spawn.

                  by WisePiper on Tue Jul 16, 2013 at 11:40:14 PM PDT

                  [ Parent ]

    •  Defending the Fourth Amendment: R. Hager (9+ / 0-)

      I don't know if HamdenRice's Constitutional Law mojo whups that of Rob Hager, but here's a bit about Hager's background --

      Rob Hager writes on public corruption issues and is a public interest litigator who wrote and filed briefs in the Supreme Court's 2012 Montana states rights sequel to Citizens United, American Tradition Partnership, Inc. v. Bullock.
      Mr. Hager has written a lengthy and well-informed article titled 'Snowden's Constitution vs Obama's Constitution' which can be found here:

      http://www.techdirt.com/...

      I will be quoting exclusively from Mr. Hager's article to demonstrate to readers that the Fourth Amendment, if properly interpreted, allows plenty of room for Supreme Court decisions, and for future laws, that can remedy the NSA's unconstitutional practices.

      Mr Hager begins his article by saying the Mr. Snowden's NSA whistleblowing

      expresses a belief in the meaning of the Constitution: in a democracy, the people – not his defense contractor employers or the government that hires them - should ultimately determine whether mass surveillance interfering with everyone's privacy is reasonable.
      Mr. Hager then proceeds to describe how the Fourth Amendment's inclusion of the word 'reasonable' should be applied, as opposed to Executive Branch practices that exceed or ignore the Fourth Amendment's use of the word 'reasonable':
      The Fourth Amendment of the Constitution prohibits "unreasonable searches and seizures." Seizure – the taking of private information – is what the government has now been forced to admit in its decision to prosecute Snowden for telling the truth about their secret seizures. Whether or not the state ever chooses to "search" the seized information, the universal, non-consensual seizure itself of what used to be called "pen register" data grossly invades individual privacy and vastly empowers government, all in violation of the Constitution if "unreasonable."

      The Supreme Court reads the Fourth Amendment's "unreasonable" test to mean not "objectively reasonable," United States v. Leon, 468 U.S. 897, 922 (1984). This would mean "reasonable" as viewed by ordinary citizens - like Snowden. The Fourth Amendment is a unique exception to the Constitution's general choice of representative democracy ("a Republican Form of Government," Art. IV, §4) over direct democracy. The term "reasonable" appears nowhere in the Constitution except in the Fourth Amendment, although it is a concept well-known to law. For example, legal negligence is a breach of what a jury determines a "reasonable man" would do in the same circumstances. A similar standard has been imported into Fourth Amendment determinations. The Supreme Court long ago said that "probable cause for a search exists when the facts and circumstances within the police officer's knowledge provide a reasonably trustworthy basis for a man of reasonable caution to believe that a criminal offense has been committed or is about to take place." Carroll v. United States, 267 U.S. 132 (1925). So what the public deems reasonable is what the Constitution means by reasonable. Though public opinion is always relevant to interpretations of the Constitution, this is the only context where the Constitution directly assigns to the people the power to determine what the Constitution means.  [italics in original]

      By definition, the people cannot deem to be "reasonable" what they do not know about. Snowden uniquely did know. . . .

      According to the Supreme Court, "it remains a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions." California v. Acevedo, 500 U.S. 565 (1991) (quoting Katz v. U.S.)

      [...]

       Any exception to the Fourth Amendment's "right of the people to be secure in their persons, houses, papers, and effects" in the absence of showing individualized probable cause – or even reasonable suspicion – that a crime is being or will imminently be committed places it well outside the judicial process. This imposes a heavy burden on the state to prove that its search was otherwise “reasonable,” and not a breach of the Fourth Amendment's “bulwark against police practices that prevail in totalitarian regimes.” (id. Stevens, J. dissenting).

       . . . Obama administration has violated this rule. A valid warrant could not have been issued under this rule when no reasonable person could possibly believe, . . .  that universal crime by the general public, or by Verizon subscribers in particular, has been committed or is about to take place.

      Hager's analysis continues at some length, and he is careful to address the 'pen register' Supreme Court decision as inadequate (thus invalid) for the needs of assessing the unconstitutionality of the NSA's practices.

      While I would be the first to agree that DailyKos should be a prominent venue for substantive discussions about the NSA's unconstitutional practices -- including secret laws promulgated by a secret court -- I do not think that those discussions will be best served by Kossites who have made evident their scorn for the Constitution and the Bill of Rights.  There are numerous experts in Constitutional Law who have written, and more who will write, serious analyses of the NSA's practices in light of the Constitution.  These analyses can inform our discussions better, I believe, than this diary.

      The development of case law and of Supreme Court cases on the NSA's practices have been entirely blocked by the wall of secrecy surrounding those practices.  That wall has now been breached, because Edward Snowden's actions have made the NSA's practices available to any 'reasonable person' who can read, and have made it necessary for members of the US Government to speak about those practices -- if only to defend them with lies.

      Right now, on the Front Page, Joan McCarter has an article up about a new case being brought by the Electronic Freedom Foundation (EFF) that includes 19 different (and widely differing) groups.  Within the last few weeks, a judge decided that the US Government's 'state secrets' argument cannot be used in regard to a case against the NSA that has been hanging fire for years -- because the 'secrets' have been made public.

      As a nation, we are only now at the beginning of the time where cases can be brought that will begin to shape a Fourth Amendment understanding for the 21st Century.  The Fourth Amendment does not 'suck'; it has been smothered by Executive Branch actions.  And only 'reasonable people', with full information, can return the Fourth Amendment -- along with the rest of the Constitution -- to its proper place as the bedrock of American law and jurisprudence.

    •  But for those who prefer Constitutional Scholars (6+ / 0-)

      for their analyses of the NSA's practices, here are a few selections.  Many more are out there already, and more will be coming.

      http://www.techdirt.com/...

      http://www.techdirt.com/...

      http://www.techdirt.com/...

      http://www.nytimes.com/...

      http://online.wsj.com/...

      https://www.techdirt.com/...  

      http://www.washingtonpost.com/...

      What about constitutional?
      The Fourth Amendment requires search warrants to be specific about who is to be searched and what information is to be seized. There’s nothing specific about the Verizon order. However, the government is likely to cite a 1979 Supreme Court ruling holding that the Fourth Amendment doesn’t apply when the government seeks calling records. At least one Supreme Court justice, Sonia Sotomayor, has suggested the high court should reconsider that holding. Perhaps the furor over the phone records program will spur the courts to revisit the issue.

      http://www.cato.org/...

      On the question of whether surveillance of every American’s phone calling is constitutional, Lee notes how the government and its defenders will rely on a 1979 case called Smith v. Maryland. In that case, the government caused a telephone company to install a pen register at its central offices to record the numbers dialed from the home of a suspected robber. Applying doctrine that emerged from Katz v. United States (1967), the Court found that a person doesn’t have a “reasonable expectation of privacy” in phone calling information, so no search occurs when the government collects and examines this information.

      It takes willfulness of a different kind to rely on Smith as validation the NSA’s collection of highly revealing data about all of us. Smith dealt with one suspect, about whom there was already good evidence of criminality, if not a warrant. The NSA program collects call information about 300+ million innocent Americans under a court order. And the Supreme Court is moving away from Katz doctrine, having avoided relying on it in recent major Fourth Amendment cases such as Jardines (2013), Jones (2012), and Kyllo in 2001.

  •  Been waiting for this Hamden (23+ / 0-)

    and it was well worth the wait.

    Bookmarked, tipped and rec'ed.

    Join us on the Black Kos front porch to review news and views written from a black pov—everyone is welcome.

    by Denise Oliver Velez on Tue Jul 16, 2013 at 01:20:24 PM PDT

  •  Thanks. Don't be surprised if (17+ / 0-)

    you get some pushback on some things you wrote such as "Where there's a right, there's a remedy. Conversely, if the law does not provide a remedy, then there is no right." While that is a legal truism, some here, even lawyers, can't seem to wrap their heads around it in this case. I posted an article discussing this point in the context of the NSA metadata program, with emphasis on Smith v Maryland, and my discussion was not well received. Hope you fare better                  

    Further, affiant sayeth not.

    by Gary Norton on Tue Jul 16, 2013 at 01:29:50 PM PDT

  •  Very long but well worth reading. (20+ / 0-)

    Excellent history and legal analysis.

    Join us on the Black Kos front porch to review news and views written from a black pov—everyone is welcome.

    by TomP on Tue Jul 16, 2013 at 01:38:46 PM PDT

  •  Well done. Thanks. (14+ / 0-)

    One question: in your recap towards the end, you suggest no change between 9/11/2001 and the Obama Administration. Do you discount entirely whatever changes were made after the Ashcroft hospital debacle that led to the threatened resignations and Comey's ascendance, as well as Judge Robertson's resignation from the FISC? (This is far from the main point of the diary, so feel free to ignore if you like. Just curious about whether you thought any changes were mere fig leaves, which they might have been.)

  •  i remember that from 2000 (9+ / 0-)

    I think I first heard of the program in either 1999 or 2000.

    -You want to change the system, run for office.

    by Deep Texan on Tue Jul 16, 2013 at 02:15:34 PM PDT

  •  Outstanding effort (14+ / 0-)

    Tipped, Recced, and bookmarked.

    Perhaps it resonated with me especially because as we have all been processing the Zimmerman trial and verdict it has been pretty clear to me that what we should be angry about is the sucky law as much or more than the police, judge, jurors, etc.

    “Texas is a so-called red state, but you’ve got 10 million Democrats here in Texas. And …, there are a whole lot of people here in Texas who need us, and who need us to fight for them.” President Obama

    by Catte Nappe on Tue Jul 16, 2013 at 02:57:56 PM PDT

  •  The constitution sucks in its entirety, because (3+ / 0-)
    Recommended by:
    Enzo Valenzetti, MichaelNY, Yasuragi

    The evil white supremacist framers were big fat liars. The evil racist majority can take our rights away; so the only thing that wins is money.

    nosotros no somos estúpidos

    by a2nite on Tue Jul 16, 2013 at 03:28:38 PM PDT

  •  Thanks for this realistic portrait (12+ / 0-)

    of the Fourth.

    With the Decision Points Theater, the George W. Bush Presidential Library becomes the very first Presidential Library to feature a Fiction Section.

    by Its the Supreme Court Stupid on Tue Jul 16, 2013 at 03:37:51 PM PDT

  •  In other words... (2+ / 0-)
    Recommended by:
    Enzo Valenzetti, Jarrayy

    The Constitution and the SC Case Law sucks.  Therefore Obama has no choice - but he'd be willing to have a conversation about how bad things suck.

    The GOP?  They don't even want to have a conversation - clearly making them the Greater Evil.

    Of course, the results are the same, but what the hell, eh?

    The excuses for Obama's behavior have long since passed the point of predictability neccessary to qualify as an absurd production of Kabuki Theater.

    by Johnathan Ivan on Tue Jul 16, 2013 at 03:39:15 PM PDT

  •  The fact that the Supreme Ct has gutted the 4th (2+ / 0-)
    Recommended by:
    a2nite, wu ming

    amendment is no secret.  It is "the law" but it has all the legitimacy as the law the let George Zimmerman walk.

    If you'd like the easier to read version try Emanuel Law Outlines on Constitutional Law.  It has all the gory details and names names.

  •  awesome diary (12+ / 0-)

    wish more of the 'isn't Snoweden wonderful' diaries could be like this.

    We've needed a series update to the consitution for decades and it seems like only now that it's Obama that people are getting that.

    In the time that I have been given,
    I am what I am
    Shop Kos Katalogue or the Parrot gets it

    by duhban on Tue Jul 16, 2013 at 04:11:27 PM PDT

  •  Thanks for this. Very detailed. (12+ / 0-)

    As I actually did some intel work long ago, I can and have stated that electronic data collection is nothing new. Neither is hard copy data collection via the post office. Neither is following someone around.

    All without warrants.

    The only debate about this even was whether electronic communication was privileged/protected the way letters and personal communications were supposed to have been or whether they were communications akin to those overheard in public places and thus not protected. The latter interpretation has repeatedly won.

    However, I reckon any terrorist worth his salt long ago gave up the internet, phones, and cell phones. So what the NSA/CIA/FBI et al are catching now are pretty innocent people who might at some time be corralled for exercising their rights.

    Having been the "beneficiary" of the the government's "beneficence" during my military days I am very skeptical that the government's and NSA's goals are pure and harmless. The biggest indicator of this is that the government kept this all secret from all of us. One has to ask why, as our enemies already knew about these efforts as long ago as 1968 and were doing the same things.

    If I owned Texas and Hell, I would rent out Texas and live in Hell. General Phil Sheridan USA

    by shigeru on Tue Jul 16, 2013 at 04:19:36 PM PDT

  •  one positivist to another, (14+ / 0-)

    this diary is awesome.  that's all for now.

  •  Good work (15+ / 0-)

    I have to say as a former prosecutor I was mostly unaware of Smith v Maryland (I tried a number of 4th Amendment cases on appeal, but never having anything to do with electronic surveillance).

    Smith v Maryland makes it pretty clear meta-date is not covered by the Fourth Amendment, which means a significant amount of the NSA work Snowden revealed was NOT unconstitutional.

    I must say I was surprised.

  •  One time "seperate but equal" was constitutional (11+ / 0-)

    60 years later the SCOTUS decided it wasn't constitutional.

      The SCOTUS has made some bad rulings.

    None are so hopelessly enslaved, as those who falsely believe they are free. The truth has been kept from the depth of their minds by masters who rule them with lies. -Johann von Goethe

    by gjohnsit on Tue Jul 16, 2013 at 04:53:35 PM PDT

    •  Thurgood Marshall litigated separate but equal (22+ / 0-)

      I'm guessing you're not quite understanding what legal positivism is.

      It isn't that a particular set of rules is good. It's that the first step in changing them is understanding what they actually are.

      Marshall and his mentor, Charles Hamilton Houston, of Howard Law School, developed a strategy of acknowledging that separate but equal was the law, and litigating cases (mostly about universities) showing that in fact, separate facilities were not in fact equal, while each time also raising the issue that separate was inherently not equal. After achieving a number of wins over many years, the SC finally admitted in Brown that separate never could be equal.

      As I mentioned upthread, as a positivist, I recognize people like Greenwald as a Natural Law advocate.

      Here's the difference:

      Let's say its 1890 and there are awful "black codes" in Mississippi and a client asks me whether he can travel at night without a pass.

      Natural law advocates like Greenwald and possibly you would say that the black codes are inherently unconstitutional and that he can. His client would be arrested, beaten and tortured, then sent to hard labor on a chain gang.

      I would say that the authoritative organs in this system say that the black codes are legal but immoral and seem to conflict with the intent of the Fourteenth Amendment,  and I would warn the client that if he goes out, he will be arrested, beaten, tortured and put on a chain gang, and that if he wants to do that as a protest he should, and if he wants to challenge the law and change it acknowledging what it actually is now, there are ways to do that, and if he doesn't want trouble, he can stay at home.

      •  Defined "effects" as synonym of goods-belongings.. (8+ / 0-)

        Isn't that enough to include e-stuff?
        I understand the separate but equal litigation but find it hard to grasp that my e-mails, phone calls are not my goods-belongings. There's a reason effects was put in amendment.
        Great diary.

        •  This is really interesting point. (12+ / 0-)
          I understand the separate but equal litigation but find it hard to grasp that my e-mails, phone calls are not my goods-belongings.
          I agree, on the one hand, that an email is analogous to a letter insofar as it is private written correspondence between you and someone else. However, the nature of electronic media is such that an email is quite different than a physical letter.

          When a letter is delivered, it is taken from one person to another. It is a discrete physical object, and as such can only travel one path, and its seal cannot legally be broken by anyone except its intended recipient. Once a letter has been received, its recipient is now its the sole owner.

          An email on the other hand, can be replicated instantly. Once you send me an email, I own it also, even though you also may have a copy of it. Additionally, I can replicate that email to an arbitrary number of people, all of whom then own it too. So who really owns it then? Perhaps everyone receiving it. But if one of those persons' emails are 'lawfully' searched, are we to say that all the other recipients' privacy has been violated?

          Also, when information packets travel around the internet, each packet may contain a fragment of a document. An electronic document may travel by several different paths before it's reconstituted. The paths it travels know no national boundaries, so it's folly to assume that the NSA or whatever other foreign intelligence agencies can separate foreign packets from domestic packets.

          These are reasons I think it's more difficult than it may seem to think of an email like we think of a letter.

          •  ^^^ VERY Important (4+ / 0-)

            Yeah, that's part of a planned installment. I don't think most people understand packeet switching.

            A single 1 mb document may be broken into 1000 packets, which travel many different routes.

            In the old analog days, the NSA could tap the international underwater transatlantic cable and listen to calls on dedicated circuits.

            Now if they tape a fiber optic data pipeline, all they'll get is gibberish -- trillions of packets intermixed from internet, voice, data, financial transactions, email etc not in any particular order.

            It's like they would have to collect everything in order to collect a single email -- unless they go to the email servers at, eg google (gmail)  where the packets are reassembled, which is exactly what they're also doing.

          •  An email isn't a letter, it only uses the form (3+ / 0-)
            Recommended by:
            Quicklund, fou, HamdenRice

            of a letter, and it is anything but discrete. Nothing on the net is discrete; all of it is fundamentally interconnected.

            Somehow our society must acclimatize itself to this new reality: Secrecy and privacy don't exist on the web. To the extent you are on it, you are part of it. Everything that anyone does or says on it is essentially public information.

            This information we willingly provide is available not only to government spies (reprehensible though they may be), but to all takers -- it's like a public auction of our most private expressions and desires. It is in fact the global village that McCluhan predicted, where secrets of all kinds, both official and personal, will be increasingly short-lived.

            I don't think we have quite grasped yet, as a society, the fundamental change that has occurred in the nature of communication itself. It is no longer one-to-one, it is now one-to-all. Not by intention or by law, but by the nature of the medium. Whatever we do, or anyone does on the net is essentially a broadcast, not a private channel.

            I think this pertains to our Watchers at the NSA, as much as it does to us, who are being watched. Snowden's leak was not an anomaly, but rather a feature of the medium being used to do the surveillance.

            It would be easy enough to avoid surveillance by simply not participating in the system that sustains it.. Turn off your computer, et voila -- you will not be spied upon. Few will choose this option however. Why? Because the benefits of participation far outweigh the loss of one's privacy.

             

    •  And then, a year after that (0+ / 0-)

      it imposed the adoption of the prescribed remedy "with all deliberate speed"...which led to parts of Brown v Board still not implemented 50 years after the fact...

      Fear doesn't just breed incomprehension. It also breeds a spiteful, resentful hate of anyone and everyone who is in any way different from you.

      by awesumtenor on Wed Jul 17, 2013 at 09:51:41 AM PDT

      [ Parent ]

  •  Surveillance nullifies the Constitution (2+ / 0-)
    Recommended by:
    Notreadytobenice, Dragon5616

    Surveillance is so unconstitutional it actually nullifies the very intent of the constitution...
    Enforcement is nine tenth of the law and the other tenth is interpretation… The government does plenty of unconstitutional things and has badly twisted it in the past as well as to day …. But since there is now resistance—who cares...  Everyone knows that privacy is supposed to be as American as cornbread—but because we are a free country we can get away with it—for free
     So why do we have a constitution?  I forgot—to protect us from torture?

  •  I'm interested to see these current laws (5+ / 0-)

    subjected to Supreme Court review, as I think there are serious questions whether previous decisions set precedent in these particular cases. AFAIK there has been no judicial review because the SC has not granted anyone standing, preventing the law from being challenged. That  or the suit being dropped under the national security exception.

    I'm not an attorney, but electronic versions of the persons, houses, papers, and effects would seem to be relevant to the 4th amendment. Also the particularly describing the place to be searched, and the persons or things to be seized would preclude bulk indiscriminate trawling of data.

    We shall see. With Snowden's disclosures someone will be granted standing.

    The Fierce Urgency of Later

    by Faroutman on Tue Jul 16, 2013 at 05:29:30 PM PDT

  •  So James Madison (2+ / 0-)

    and the guys just did a clever bait and switch on the anti-Federalists.  And a succession of increasingly corporate-oriented case precedents eroded it to little.

    Or:
    It doesn't mean what it says.

    50 states, 210 media market, 435 Congressional Districts, 3080 counties, 192,480 precincts

    by TarheelDem on Tue Jul 16, 2013 at 05:33:12 PM PDT

  •  I appreciate this diary. (7+ / 0-)

    Most informative. Thanks!

    "Those are my principles, and if you don't like them...well, I have others." --Groucho Marx

    by Dragon5616 on Tue Jul 16, 2013 at 05:52:22 PM PDT

  •  Glad to see an honest assessment (9+ / 0-)

    of the 4th Amendment and how it has been -- and hasn't been -- enforced over the centuries.

    Blogging as Ché Pasa since 2007.

    by felix19 on Tue Jul 16, 2013 at 05:55:46 PM PDT

  •  This is the kind of post that is (10+ / 0-)

    so badly needed to increase our understanding of this important issue.

    I love informative, well researched, and written posts and this is one of the best.

    Thank you so very much.

  •  I rec'd because of the great wealth of detail (14+ / 0-)

    --and because I'm really tired of the "Snowden: Hero or Traitor?" debate myself. However, I disagree with several of the conclusions you draw from your analysis.

    First off, on some more minor points:

    The administration is responsive to critiques based on reality and empiricism;
    I see no evidence of this.
    If there's one thing that I've found characterizes the Obama administration, it's that they scrupulously adhere to the Constitution and the law.
    This I also disagree with, but I don't want to get into a debate about the legality of the drone program or the Libya intervention here.
    the suppression by CIA Director Leon Panetta and Attorney General Eric Holder of President Bush's warrantless wiretapping program in 2009
    I'm pretty sure the warrantless wiretapping program ended in 2007; do you have a source for this?

    Moving on to your main points. If I'm reading you correctly, your two main points are these:

    1) The 4th Amendment does not prevent mass electronic surveillance pursuant to Supreme Court rulings
    2) This kind of mass surveillance is not historically unprecedented; indeed, it's actually historically the norm

    I agree with point #2; point #1, however, I sort of half-disagree with. I'd like to draw attention to this statement you make:

    because email, telephones and the like aren't mentioned in the Constitution, the Constitutional law of electronic interceptions is entirely Supreme Court made Constitutional law.
    (bold and italics removed)

    Of course the Supreme Court's decisions are the law of the land. But you seem to draw an equivalence between the Court's rulings and what the Constitution itself means.

    Now, the Constitution naturally does not mention email or telephones. It also doesn't mention, for example, Mormonism; however, I don't think we need the Supreme Court to tell us that the 1st Amendment applies to Mormonism too, despite the fact that the religion postdates the Constitution.

    Similarly, the 4th Amendment says that the government cannot search our effects (or persons/houses/papers, but that's less relevant here). I think data on my communications, including its metadata, is one of my effects, and thus is in fact protected by the 4th Amendment.

    The Supreme Court, as you've pointed out, disagrees with me here. But I think the SC's opinions on this matter have been based on confusions of the sort you so eloquently describe Taft as having, of not understanding just what kind of thing information is.

    Now, the Supreme Court's opinions, and not mine, are the law of the land. But I reject the stance that the Constitution itself means just whatever the currently-relevant SC opinions say it means. The Supreme Court is not automatically correct just because it has power; it can misinterpret the Constitution as easily as anyone. And in my opinion, in this area, the Court has frequently misinterpreted the Constitution.

    I look forward to your follow-up diary.

    "He, O men, is the wisest, who, like Socrates, knows that his wisdom is in truth worth nothing."--Socrates

    by TealTerror on Tue Jul 16, 2013 at 07:34:17 PM PDT

  •  Nominee for diary of the year. (11+ / 0-)

    Epic post Hamden.

    One of the best I've seen here. Seriously.

  •  Superb diary. (6+ / 0-)

    We couldn't want anything better!

    Enagaged activism wins elections. 100 million words on liberal/progressive websites gets beat by one new GOP voter casting their vote.

    by Nebraska68847Dem on Tue Jul 16, 2013 at 07:43:42 PM PDT

  •  Thanks so much for this extremely informative (6+ / 0-)

    article! I really learned something new and important on Daily Kos tonight, thanks to you!

    Formerly Pan on Swing State Project

    by MichaelNY on Tue Jul 16, 2013 at 09:04:29 PM PDT

  •  Technology is a red herring; a lawyer's game. (6+ / 0-)

    The touchstone is human lives and values. "Papers and effects" was the technology and artifacts owned by humans.

    The entire meaning of it is "what you write, what you have, that's yours and the government needs probable cause, enough to convince a judge, to go poking around them."

    No technology has changed the human intent and significance of the Amendment.

    What we've done is allow the camel's nose of Business -- with its Stalking-called-tracking -- to fudge the core human intent of the 4th (and other laws.) And Government has simply followed along. "Golly, the telephone is a whole new thing." No. It's a new way to privately communicate, an addition to paper.

    We just need laws that prevent strangers following us wherever we go, whatever we do, and breaking into our homes and papers and effects. However they do it. It's the results that matter, not the method, however new or old it might be.

    Ending the Stalker State is the only way to go, if we're to survive as anything like free people.


    Actual Democrats is the surest, quickest, route to More Democrats

    by Jim P on Tue Jul 16, 2013 at 09:24:01 PM PDT

    •  I think what Hamden is saying (2+ / 0-)
      Recommended by:
      Jim P, Quicklund

      is that the government has acted as a "stalker state" well before the advent of computers and Internet metadata, so this behavior isn't new

      •  Oh, definitely. (1+ / 0-)
        Recommended by:
        CroneWit

        Still, I wanted to address the "new technology equals no entitlement to privacy" argument put forth all these years."


        Actual Democrats is the surest, quickest, route to More Democrats

        by Jim P on Wed Jul 17, 2013 at 09:20:18 AM PDT

        [ Parent ]

      •  and that legal precedent (1+ / 0-)
        Recommended by:
        seancdaug

        has largely established that the government's doing so falls within the bounds established by the law...whether it is moral/ethical or not.

        Fear doesn't just breed incomprehension. It also breeds a spiteful, resentful hate of anyone and everyone who is in any way different from you.

        by awesumtenor on Wed Jul 17, 2013 at 09:57:38 AM PDT

        [ Parent ]

        •  Laws can be changed. n/t (0+ / 0-)


          Actual Democrats is the surest, quickest, route to More Democrats

          by Jim P on Wed Jul 17, 2013 at 10:33:49 AM PDT

          [ Parent ]

          •  No one (2+ / 0-)
            Recommended by:
            seancdaug, Quicklund

            is disputing that... but the most frequent complaint one hears about NSA spying is that it is against the law and against the US Constitution... when it is neither.

            Fear doesn't just breed incomprehension. It also breeds a spiteful, resentful hate of anyone and everyone who is in any way different from you.

            by awesumtenor on Wed Jul 17, 2013 at 01:34:12 PM PDT

            [ Parent ]

            •  Oh, it most absolutely is. (0+ / 0-)

              First, why are they hiding shit from the committees that oversee them, if they're not?

              Second, that's the nature of intelligence agencies to operate beyond and outside the law. Always has been, always will be.

              Third, the 4th Amendment.

              That corrupt, fearful (and who can say "not coerced") political figures write laws which appear to make it legal (see "First" above)... there's a long history of democratic institutions being subverted by elected officials, and not just in the US.

              If they're not doing anything illegal, why do they hide what they do? Prudence dictates the assumption they are up to no good.


              Actual Democrats is the surest, quickest, route to More Democrats

              by Jim P on Wed Jul 17, 2013 at 06:52:08 PM PDT

              [ Parent ]

  •  Freedom Was Nice While It Lasted (0+ / 0-)

    The Fourth Amendment was never going to save us. The only thing that saved us for 200 years or so was a conscience. Try finding that in court these days!

    •  The same conscience (1+ / 0-)
      Recommended by:
      Liberal Thinking

      that solved the cognitive dissonance  found at the intersection of "all men are  created equal and are endowed by their creator with inalienable rights" and chattel slavery by having slaves declared subhuman and thus excluded?

      Fear doesn't just breed incomprehension. It also breeds a spiteful, resentful hate of anyone and everyone who is in any way different from you.

      by awesumtenor on Wed Jul 17, 2013 at 09:59:53 AM PDT

      [ Parent ]

      •  Oh, Now You're Talking About Humans (0+ / 0-)

        Good point. I'm pretty sure it never occurred to them to consider slavery to be inconsistent with the idea that "all men are created equal". It took people with real conscience to update the facts to fit the ideals.

  •  Wikileaks (3+ / 0-)
    Recommended by:
    HamdenRice, wu ming, CroneWit

    What's good for the goose is good for the gander: If we have no protection against spying against us by the government, then no human being spying for the government has any such protection either.

    An extension of this idea is open-source intelligence: What chance do terrorists or criminals have in keeping their schemes a secret, if we the people can publicize them?

    For what reason does the government keep serious threats against our safety, A SECRET? What justifies that?

    Of course, this could lead to a surveilliance state in which your secrets are only safe if you keep safe the secrets of others. I think that's called trust and confidentiality. If we do not keep crimes secret, then maybe we will keep indiscretions secret.

    And then there is real life.

    •  I agree with the idea of open source intel (4+ / 0-)

      You'd be surprised the extent to which international outrage by governments over the NSA spying on them is a bit of a sham.

      A lot of what the NSA does has nothing to do with terrorism, but with spying on other governments, who expect to be spied on, and spy on us.

      Even more counter-intuitive is the fact that certain treaties the US is party to require the US to spy on other countries and require the US to allow other countries to spy on us.

      The most important of these are various nuclear weapons treaties. Spying is actually required by the terms of the treaties.

      There is also the open skies program in which a large group of countries, including the US, are allowed to fly spy planes unmolested over each others territories.

      http://en.wikipedia.org/...

      The idea was first proposed by President Eisenhower 50 years before:

      http://www.history.com/...

      and became the basis of treaty requirements for "National Technical Means of Verification" or mandatory mutual spying.

  •  Extremely well done piece. (4+ / 0-)

    It's a much needed introduction to the law behind the subject for anyone who wants to understand the issues in question.

  •  Wow. (5+ / 0-)

    I haven't read anything quite this terrific in quite a while.

    Thank you very much.

    Irony takes a worse beating from Republicans than Wile E. Coyote does from Acme. --Tara the Antisocial Social Worker

    by Youffraita on Wed Jul 17, 2013 at 12:36:47 AM PDT

  •  I liked the diary for the debate (2+ / 0-)
    Recommended by:
    HamdenRice, CroneWit

    and information in it so I recc'd it but I have some questions I guess because it doesn't seem to exactly cover the NSA and Snowden saga.

    Correct me if I'm wrong but the NSA is not a law enforcement agency and it is officially under the Department of Defense. I mention this because your article mentions the FBI which is a law enforcement agency. So my first question would be, if these Programs were under the FBI rather than the NSA, would they be legal?

    Taking a quick look at Wikipedia it shows the NSA was redefined??? from the National  Security Act of 1947 act with Executive Order 12333--United States intelligence activities issued by Ronald Reagan.

    When reading through this executive order which covers the NSA, nothing in it mentions domestic in regards to surveillance and the NSA. There is domestic however as in who investigates breaches etc such as Snowden which is to be the FBI.

    In section 1.12 (b) of the order it lists the functions of the NSA..

    (b) National Security Agency, whose responsibilities shall include:
    (1) Establishment and operation of an effective unified organization for signals intelligence activities, except for the delegation of operational control over certain operations that are conducted through other elements of the Intelligence Community. No other department or agency may engage in signals intelligence activities except pursuant to a delegation by the Secretary of Defense;
    (2) Control of signals intelligence collection and processing activities, including assignment of resources to an appropriate agent for such periods and tasks as required for the direct support of military commanders;
    (3) Collection of signals intelligence information for national foreign intelligence purposes in accordance with guidance from the Director of Central Intelligence;
    (4) Processing of signals intelligence data for national foreign intelligence purposes in accordance with guidance from the Director of Central Intelligence;
    (5) Dissemination of signals intelligence information for national foreign intelligence purposes to authorized elements of the Government, including the military services, in accordance with guidance from the Director of Central Intelligence;
    (6) Collection, processing and dissemination of signals intelligence information for counterintelligence purposes;
    (7) Provision of signals intelligence support for the conduct of military operations in accordance with tasking, priorities, and standards of timeliness assigned by the Secretary of Defense. If provision of such support requires use of national collection systems, these systems will be tasked within existing guidance from the Director of Central Intelligence;
    (8) Executing the responsibilities of the Secretary of Defense as executive agent for the communications security of the United States Government;
    (9) Conduct of research and development to meet the needs of the United States for signals intelligence and communications security;
    (10) Protection of the security of its installations, activities, property, information, and employees by appropriate means, including such investigations of applicants, employees, contractors, and other persons with similar associations with the NSA as are necessary;
    (11) Prescribing, within its field of authorized operations, security regulations covering operating practices, including the transmission, handling and distribution of signals intelligence and communications security material within and among the elements under control of the Director of the NSA, and exercising the necessary supervisory control to ensure compliance with the regulations;
    (12) Conduct of foreign cryptologic liaison relationships, with liaison for intelligence purposes conducted in accordance with policies formulated by the Director of Central Intelligence; and
    (13) Conduct of such administrative and technical support activities within and outside the United States as are necessary to perform the functions described in sections (1) through (12) above, including procurement.

    Nowhere in that list do I see the word domestic outside of securing government/military communications. Now, I understand if a foreign national is on US soil that they could wiretap etc... But if you could explain how a warrant from the FISA court would allow them to collect every single call record on domestic private communications falls within their scope?

    Should it be under section 1.14 and the FBI?

    1.14The Federal Bureau of Investigation. Under the supervision of the Attorney General and pursuant to such regulations as the Attorney General may establish, the Director of the FBI shall:
    (a) Within the United States conduct counterintelligence and coordinate counterintelligence activities of other agencies within the Intelligence Community. When a counterintelligence activity of the FBI involves military or civilian personnel of the Department of Defense, the FBI shall coordinate with the Department of Defense;
    (b) Conduct counterintelligence activities outside the United States in coordination with the CIA as required by procedures agreed upon by the Director of Central Intelligence and the Attorney General;
    (c) Conduct within the United States, when requested by officials of the Intelligence Community designated by the President, activities undertaken to collect foreign intelligence or support foreign intelligence collection requirements of other agencies within the Intelligence Community, or, when requested by the Director of the National Security Agency, to support the communications security activities of the United States Government;
    (d) Produce and disseminate foreign intelligence and counterintelligence; and
    (e) Carry out or contract for research, development and procurement of technical systems and devices relating to the functions authorized above.

    Which does say within the United States clearly in it. Or have all the lines blurred now and government is government and these separate agencies no longer have defined roles?

    •  The Supreme Court cases are about wiretaps (4+ / 0-)
      Recommended by:
      DRo, ballerina X, Gary Norton, artmartin

      regardless of who makes them. So I was trying to write about the scope of the 4th Amendment. That law has been generated almost entirely by domestic federal law enforcement, ie the FBI.

      Your observation is correct -- the NSA does international electronic surveillance and the FBI does domestic law enforcement and electronic surveillance.

      Also, the NSA's foreign surveillance includes foreign embassies in the US, so that adds to its domestic electronic infrastructure.

      Their responsibilities have historically overlapped because the NSA surveilles foreign embassies, but historically the FBI has tracked foreign spies who are usually based in foreign embassies.

      But because the NSA has developed the electronic surveillance infrastructure, when the FBI needs to do some domestic surveillance it can ask the NSA to do the actual electronic intercept.

      Lastly, as the PRISM slides and other things we've learned about the NSA and internet over the last 12 years show -- and I want to do a separate diary on this -- all digital traffic, like internet and digital telephone, has no national boundaries.

      When you send an email, digital voice, picture, video or document over the internet, it is broken up into very small "packets" of about 1,000 bytes or 1 kb. A picture might be 1,000 packets.

      The packets each have an outer "envelope" containing the from and to addressed and other data, and a payload, the actual content, and may be sent along different paths. On a nanosecond by nanosecond basis, the network decides what is the cheapest and fastest route for each packet, so packets for one email or picture could go dozens of different ways. Because the US has one of the strongest, cheapest networks, as PRISM pointed out, an email from say Pakistan to Afghanistan may well travel over the US network, and the NSA thinks that it can intercept international traffic in the US, so that's why it has this huge surveillance structure within the US network.

      The difference between foreign and domestic electronic surveillance is no longer technologically relevant thanks to the internet.

      •  Thank for the information.. (1+ / 0-)
        Recommended by:
        HamdenRice

        and I understand how the internet works but I want to refer just to cell phone calls for a second and the Verizon order. Cell phone calls don't work like that even on a CDMA network. Now there is breaking up of calls going to and from your cellphone to a tower. But once it's hit the tower and reassembled its exactly like making a phone call from your house phone. The call is routed through the local phone company. Lets say your call is to someone in another state. That local phone company sends it to the other local phone company. That other phone company send it to the tower to the end receiver, then the cell technology kicks in again. In essence, if you take the towers away its a normal phone call. What I'm interested in is if this PRISM and other programs are getting this data from the local carrier as well as the cell carriers. Because if they aren't it's a convenient way to get around this.

        Also, I am curious if the FBI is making these requests to the NSA or if the NSA is just doing on their own since it appear to be out of their scope. It appears it would lead to the Department of Defense stepping into domestic law enforcement or the realm of the FBI. Shouldn't the FBI be making these requests? Or is their a law regarding the FBI making these requests and using the NSA to do it is a way to skirt around the law?

    •  Forgot to add (5+ / 0-)

      This is one theory as to why the NSA wants to collect every domestic "call."

      Actually what they want to collect is every packet passing over domestic networks. That because foreign originated and destined packets are likely to be traveling over them.

      But there is no way to tell whether a packet is for a foreign or domestic call or email until they intercept and record it.

      Moreover, if the NSA taps into a main data pipeline, like a major fiber optic cable, all they will get is gibberish -- billions and billions of packets from email, voice, etc, jumbled together. To collect eg a single foreign email on a US data pipeline would require basically recording all the packets and sorting through them and reassembling the desired packets into the email.

      That's why is much more efficient to them to just go to email providers or telephone companies and get the email, voice, etc, after it has been reassembled at the destination server.

    •  One more answer (3+ / 0-)

      Sorry to break this up, but I haven't had my morning caffeine.

      Another theory of why the NSA wants eg all metadata is  -- not because it is interested in those messages, but it is interested in modelling internet and voice traffic.

      If you read books about the NSA before 9/11/01, it becomes clear that most of their resources actually were going toward cryptology (code breaking). They employed more mathematicians than any university in the US. Some think that this is a "big data" project in which they are doing some sort of modeling for the purposes of understanding how traffic flows nationally and internationally over the network, which would be part of their sigint/cryptology function, not because they are actually interested in the content of the emails.

      It's probably a combination of all of the above plus many other reasons.

    •  Very nice contribution, kdnla. Thank you. nt (0+ / 0-)
  •  It's nice to read informed analysis... (8+ / 0-)

    I am tired of the stream of "storm the bastille" diaries that begin with the premise that Obama is overseeing a massive, blatant violation of clear constitutional law. This diary paints a detailed picture of the reality: that it is rational to understand that what is being done is consistent with the law. That matters.

    It is fine to call for changes in the law, and we will probably all agree that the current law is deficient. To begin the argument by calling those who disagree criminals and traitors, as some here do, is unlikely to advance the cause.

    The only thing required for evil to succeed is for good people to do nothing.

    by DavidMCastro on Wed Jul 17, 2013 at 05:00:35 AM PDT

  •  Entire argument can be summed up as (2+ / 0-)
    Recommended by:
    stevemb, wu ming

    "The Supreme Court has fucked up this issue seventeen ways from Sunday".

    Not the first time, not the first issue - and it's not going to get unfucked with the Supreme Court we currently have.

    But just rolling over and playing dead because the Supreme Court fucked up the issue is not going to do any good either.

    If it's
    Not your body,
    Then it's
    Not your choice
    And it's
    None of your damn business!

    by TheOtherMaven on Wed Jul 17, 2013 at 06:29:28 AM PDT

    •  I think it's possible to win with this court (2+ / 0-)
      Recommended by:
      Quicklund, duhban

      The SC painted itself into a corner with Clapper. They based the decision on the plaintiffs not being able to prove they were scooped up in the surveillance and therefore not having standing.

      While I don't approve of much of what Snowden has done, if he releases the right batch of materials that proves that some person's data was scooped up, then voila, there is a plaintiff.

      Also, the Center for Constitutional Rights is crafting a litigation strategy based on the idea that massive warrantless acquisitions of data are a civil rights violation -- so they won't be bound by weak 4th amendment remedies.

  •  Hamden Rice please read (2+ / 0-)
    Recommended by:
    HamdenRice, wu ming

    I had a question above that seems to have gotten buried in a long thread. You made this statement:

    historically, the SCOTUS thought of search and seizure as search and seizure of people, places and things.

    Thanks to Katz, it's also of private information.

    But the remedy has always been limited to the judicial realm. I think the court simply didn't think it could order the executive branch not to do things, but could tell other courts not to admit things.

    My question is that it seems to me that when SCOTUS declares a piece of legislation unconstitutional they are telling both congress and the executive what to do. They are throwing out the law and telling the executive to stop doing something. When there is a dispute between congress and the executive about the proper application of a law the courts intervene in that.

    The description of them just sitting there passively doesn't ring true. What I think is happening is that when it comes to national security they have been politically inclined to keep their heads down. That is different from a separation of powers issue.  

    •  Good question and it's a complicated answer (3+ / 0-)
      Recommended by:
      wu ming, scott5js, duhban

      The reason SC is comfortable striking down laws by Congress even though Congress is very powerful (as well as striking down Executive branch regulations) is that for those laws and regulations to be enforced, parties MUST come to the courts.

      The courts just say, we won't enforce your laws. We won't decide cases or make judgements according to laws we find unconstitutional.

      So even though Congress is powerful and the executive is powerful, the courts can basically sit on their hands when they find a law or reg unenforceable. The courts are saying you have to come to us and we're not having it.

      There are many sentences in the opinions about the 4th Amendment in which the justices write (1) this behavior violates the 4th amendment and (2) we, the courts, are just not going to admit your evidence.

      To prevent the FBI, NSA or other parts of the executive branch from spying, they would have to order agents of that branch to do something or not do something.

      Ever since Lincoln suspended habeas corpus during the CW and the SC decided that was unconstitutional, and Lincoln told the justices, something like, you've made your decision, now try to enforce it, the SC has been paranoid about diluting its power by making an order and being ignored. The court has almost no enforcement mechanisms --  only the long tradition of other branches obeying it. Being obeyed despite having no coercive power is their most precious asset.

      Of course the courts have ordered things, but around 1967 when Katz was decided, the SC was feeling very, very wary, almost scared of ordering executives.

      Brown had been decided in 1954. Brown ordered the schools desegregated "with all deliberate speed." By 1967, there had been virtually no progress fully desegregating southern grade schools. The states first "massively resisted," then ignored, then dragged their feet. By 1967, the SC was worried about being a paper tiger and became very cautious about making orders they could not enforce.

      I don't have any court biographies in front of me right now, but I'm pretty sure that this was a big part of the reason they were so weak on enforcing the 4th Amendment. Keep in mind this meant ordering J. Edgar Hoover and Lyndon Johnson around.

      Wasn't going to happen in 1967.

      •  It sounds like we may be (0+ / 0-)

        on somewhat the same page. The whole structure of the three legged stool is something of a stand off arrangement. The players are always afraid to test the limits of their powers. FDR and Truman are both examples of presidents over playing their hand with the courts. Systems that lose the balance usually wind up with a military coup.

        It seems to me that the notion of judicial restraint or the lack there of is essentially a matter of politics in the context of a particular political climate and not a reflection of a clear designation of constitutional powers.  

  •  Human rights are not basic to the Constitution. (2+ / 0-)
    Recommended by:
    Richard Lyon, wu ming

    Slavery made that impossible.

    Many modern developed nations incorporate human rights into their constitutions. The NSA's actions may prove to be within U.S. law as interpreted by our courts, but they may violate the laws of many of our major trading partners.

    This, of course, is why Snowden is a "traitor".

    He exposed the machinery of the empire to our allies. Now they will be forced to either:

    1: Enable it, exposing their government's lack of enforcement of their human rights laws or;

    2: Oppose it, creating conflict within the U.S. led mercantile empire.

    Science fiction has already gone where legal scholars have feared to tread.

    Thanks for this slap in the face diary. A lot of folks needed it to wake them up.

    look for my eSci diary series Thursday evening.

    by FishOutofWater on Wed Jul 17, 2013 at 07:17:24 AM PDT

  •  Most of us have seen bits and pieces of this (2+ / 0-)
    Recommended by:
    scott5js, duhban

    for many years, but it's very nice to have so much of it in one place.

    Thank you.

    PS It brings back memories of reading my dad's copy of Masters of Deceit as an adolescent, and while finding it interesting, thought to be a bit too sensational and over the top to be completely believable.

  •  I'm still reading - slowly. (4+ / 0-)
    Recommended by:
    HamdenRice, wu ming, Quicklund, duhban

    trying to digest a lot of history I didn't know. Only when you get to COINtelpro do I have a lot more information, since I was targeted and can't even afford the fees to look at all my files, but lawyers for many of us during that time period did yeoman like work "outing" the abuses, which had resulted in murder for some friends, long prison sentences for others.

    I wish I could say more - still reading - but I'm glad to see that this was grabbed by Community Spotlight so that more people can discuss what you have presented.

    .

    Join us on the Black Kos front porch to review news and views written from a black pov—everyone is welcome.

    by Denise Oliver Velez on Wed Jul 17, 2013 at 07:53:53 AM PDT

    •  I'm glad I broke it up (4+ / 0-)

      Much of the other pieces are written, but I realized no one would read the entire thing in one sitting.

      In addition to the material on Katz through Clapper, I want to do a piece on the NSA's real role -- not just terrorism, but things like listening to Russian and Chinese armies on maneuvers, trying to eavesdrop on the Chinese politburo as it chooses the next generation of leaders, listening for Koney in the eastern forests of the Congo, spying on countries' trade delegations, helping the IRS sneak into Swiss banks -- the list goes on and on.

      There's a funny line in one of Bamford's books in which he quotes a Russian translator saying that it was entertaining listening to junior officers of the Russian army on tank maneuvers because he learned dozens of new profanities and curse words.

      Also at least pre 9/11 most of what NSA did was cryptology. It's one thing to intercept data; it's another to decode it. Mathematicians for code breaking and foreign language speakers for translating were actually two of their biggest personnel needs.

      So that's some of the other stuff I want to write about.

      The entire framing of this as security against terrorism versus our personal electronic privacy is a completely false framing of what the NSA actually does.

  •  Ironically, this diary just exonerated Bush Jr: (2+ / 0-)
    Recommended by:
    Jarrayy, CroneWit

    Congress - Authorized the use of force against Iraq (making it LEGAL).

    Bush, invading Iraq, was just following the law.  If you didn't like Bush invading Iraq, well - Change The Law!

    I am now surprised I held Bush responsible - I now, thanks to this diary, understand that Bush really had no choice - he was just following the law.

    Water Boarding?  Same thing.

    A legal opinion was issued that said it was legal.  Bush was then powerless and had to follow the law, instituting "Enhanced Interrogation Techniques".

    This Diary - it's incredible.  It truly illuminates how we got where we are today.

    All these years I thought Bush was a bad President, when in point of fact, he was just following the law and had no power whatsoever.

    The excuses for Obama's behavior have long since passed the point of predictability neccessary to qualify as an absurd production of Kabuki Theater.

    by Johnathan Ivan on Wed Jul 17, 2013 at 08:57:41 AM PDT

    •  Wrong on so many counts (2+ / 0-)
      Recommended by:
      Quicklund, duhban

      Iraq -- The war is governed by both national law and international law. The Iraq war was illegal under international law, including under treaties and conventions to which the US was a signatory. There's a simple legal positivist test for the minimal legality of a war: Was it approved unanimously by the United Nations Security Council. The UN Security Council refused to approve the Iraq war, and therefore it was illegal under international law. The Afghan war by the same measure was legal. That's exactly what candidate Obama campaigned on and the policy he has carried out.

      As for water boarding and even warrantless wiretapping, they were illegal under Congressional statute.

      So your arguments fail completely.

      •  Surely you must be wrong: (1+ / 0-)
        Recommended by:
        CroneWit

        After all, if the law says what Bush did was illegal, and Obama is responsible for holding up the law, then clearly Obama is in violation of the Law, right? (for failing to uphold his Oath of Office in holding up the Law)

        Or did those "International Laws" get amended to make what Bush did legal so Obama's lack of action is perfectly legal?

        You can't have it both ways:  What's good for an (R) is good for a (D).

        Unless your a partisan and don't care about policies except when an (R) does them.  Which would be... putting partisanship above principal.

        Not that I find that shocking in the least.

        I can play these little word games as much as you want.  The bottom line is this:

        Legalized massive spying on American Citizens does NOT REQUIRE Obama to do so.  His continuing of the same policies under Bush = This Is Not Change.
        Nor were things ever intended to be Changed.

        All you need are two partisan camps that are blind and you can advance the 1%'s interests all you want.

        The excuses for Obama's behavior have long since passed the point of predictability neccessary to qualify as an absurd production of Kabuki Theater.

        by Johnathan Ivan on Wed Jul 17, 2013 at 10:59:22 AM PDT

        [ Parent ]

        •  This explains a lot (2+ / 0-)
          Recommended by:
          Quicklund, duhban

          Not about the logic of your position, but where you're coming from.

          After all, if the law says what Bush did was illegal, and Obama is responsible for holding up the law, then clearly Obama is in violation of the Law, right? (for failing to uphold his Oath of Office in holding up the Law)

          Or did those "International Laws" get amended to make what Bush did legal so Obama's lack of action is perfectly legal?

          You can't have it both ways:  What's good for an (R) is good for a (D).

          To me, as someone with international law experience, the most interesting thing about the Obama administration is its rigid adherence to international law. As I said in the diary, the administration obeys the letter of the law. In international law, that means military force can only be used with the approval of the UN Security Council. That pretty much explains 100% of this administration's actions. It got out of Iraq but stayed in Afghanistan; the former was illegal under the UN and the latter was legal.

          It provided military assistance in Libya and Somalia -- where there were unanimous UN Security Council resolutions calling for military force and contributions from UN members. It hasn't done that in Syria because Russia won't approve of a UN Security Council resolution. As I said, the administration's actions are almost 100% predictable based on international law, something that they said they were going to do, in their National Security Strategy document, in contrast to the Bush administration.

          The administrations couldn't be more different. The whole strategy of the Bush administration was that they wouldn't follow UN Security Council resolutions and would lead "ad hoc" coalitions.

          You can read the Obama administration's National Security Strategy document here:

          http://www.whitehouse.gov/...

          unless your a partisan and don't care about policies except when an (R) does them.  Which would be... putting partisanship above principal.
          I think the word you're searching for is "you're" not "your."

          But as I said, my "principle" (not principal, the administrator of a school), is adherence to the law as determined by legal positivism.

          Nor were things ever intended to be Changed.

          All you need are two partisan camps that are blind and you can advance the 1%'s interests all you want.

          Well, you're the sort of person who knows what "things ever intended to be Changed." I just read the newspapers, policy documents, commentators and try to understand what's happening. Unlike Noam Chomsky, I don't pretend to know what the "master plan" is. Be proud that you're one of the few who does.
  •  I cannot recommend this diary (6+ / 0-)

    Hamden, I appreciate the work you have gone to. The pictures are cute. The Civil War history is interesting. And you have, indisputably, made a good argument. Never have I seen such community unanimity on a diary. If I could, I would tip and rec it just for the effort you have put into it.

    The foundations of the argument, however, are rotten, and the structure is poorly supported. And so I will be the lonely voice telling you that you are wrong.  

    First, there's nothing wrong with the Fourth Amendment. The Constitution is a statement of basic human rights, rights necessary for a "more perfect union," (i.e., a society at peace with itself), forming a framework for law.

    Law itself is not simply statutes. The statutes are a framework for actual practice as determined by individual cases. If the law is unjust, it does not follow that the fault is in the Constitution. Following the adoption of the 13th, 14th, and 15th Amendments, there was no Constitutional basis for Jim Crow. Indeed, the 15th Amendment explicitly demanded that African Americans be allowed to vote. Yet Jim Crow persisted for 100 years based on perverse courts and legislatures simply because the victims were too weak to resist.

    That is the situation with regards to eavesdropping. There is no question what the Fourth Amendment says or why it is essential to having a society at peace with itself. As has been recognized throughout the history of eavesdropping, changes in technology have made statutes obsolete and courts and legislatures have failed to react.

    Second, I assume you're joking when you rely on 60 Minutes and link Dan Rather. It's ironic, because out of all news reporters, Rather was probably one of the more meticulous. But really, where are the links to legal discussions, or to opponents of your viewpoint?  These are the kind of links that, to my thinking, make a genuinely valuable journal. I understand that you're planning more installments to get into the law, but it would have made sense to at least examine what organizations like the EFF and ACLU have said about eavesdropping.

    The EFF, for example, has described a degree of violations of the law by the FBI that is so pervasive that one may call it a pattern of lawlessness. The ACLU states that NSA eavesdropping under Bush was illegal.  The ACLU deputy legal director has re-affirmed that current NSA eavesdropping violates the Constitution.

    Just because there has been a history of pervasive lawlessness is irrelevant. Jim Crow was fundamentally lawless, but the fact that it was widespread only hardened the determination of those who believe in the universality of the law to make that a reality.  

    So, on two grounds, this post fails. It fails to understand the role of Constitution as a goad to help the asses of the law recognize that they endanger social stability by denying rights that are given by our Creator (or "are inherent to human beings" for those who do not believe in a Creator). Second, it treats opponents of your point of view as if they have no basis for their beliefs. And, as a minor point, it dwells on the lawlessness of the past as if that should define our attitude in the present.

    Since I have criticized the diary, let me also praise a part of it that I think is valuable:  the review of Cointelpro and, more broadly, the abuses of Hoover.  

    The situation today is analogous. You quote Brownell justifying Hoover's actions because  “considerations of internal security and the national safety are paramount and, therefore, may compel the unrestricted use of this technique in the national interest.” This amounts to re-defining the judicial warrant to the point that its meaningless. The current FISA court has done something similar.

    Similarly, Hoover's spying was justified on the basis that we were in a "Cold War"... in other words, not in a war, but in a situation that the national leaders wanted to pretend was a war so that they could impose fundamentally unconstitutional means on our legal system. The same obtains today. We were never in a war with terror. The nation faced a few thousand guerrillas and our leaders turned it in a bonfire for our liberties.

    So the history of Hoover and Cointelpro is especially important because it reveals just how unnecessary mass surveillance is to prevailing in conflicts. It was not surveillance that won the Cold War. It was American creativity and productivity, and the attractiveness of a relatively open society. Mass surveillance weakened the nation and made it possible for our opponents to argue that we weren't so different from them.  

    I will read your legal analyses with interest. If they really examine the law, rather than the 60 Minutes version of it, and if they take into account the arguments made by current opponents of interpretations of the law that have been taken by the Administration and the FISA Court, then I'll rec it.

    But never lose fact of the founding principle. The last word is not given by the Supreme Court. It is given by we, the people.  

    •  You've grossly misread your own sources (2+ / 0-)
      Recommended by:
      Quicklund, duhban

      as well as the diary. That's a shame because you might have learned something if you had slowed down to read both.

      First, there's nothing wrong with the Fourth Amendment.
      If you are referring to the use of the word "sucks," it's called humor, and a way to use the headline to intrigue readers. Obviously I don't think the entire Constitution sucks. But I think the jurisprudence of the Fourth Amendment sucks if it allows warrantless surveillance. I'm shocked that you disagree with that assessment.
      Law itself is not simply statutes. The statutes are a framework for actual practice as determined by individual cases.
      This is incoherent. I did not write that the law was statutes. I said it was the text of the Constitution, Supreme Court decisions, opinions and orders, statutes, and statements of the law by law books about the law as pronounced by authoritative organs. Your second sentence is simply not comprehensible.
      Following the adoption of the 13th, 14th, and 15th Amendments, there was no Constitutional basis for Jim Crow.
      Thurgood Marshall disagrees with you, but you seem to be following a natural law approach. You might want to re-read this comment:

      http://www.dailykos.com/...

      Second, I assume you're joking when you rely on 60 Minutes and link Dan Rather. It's ironic,
      Irony is not your strong suit. I assume Rather was correct because he was in fact meticulously fact checked and his accusations were correct.
      The EFF, for example, has described a degree of violations of the law by the FBI that is so pervasive that one may call it a pattern of lawlessness. The ACLU states that NSA eavesdropping under Bush was illegal.  The ACLU deputy legal director has re-affirmed that current NSA eavesdropping violates the Constitution.
      Again, you didn't read the diary very carefully. I pointed out repeatedly that many of Hoover's actions were illegal. Black bag jobs were breaking and entering and therefore illegal. Bush's warrantless wiretaps were illegal. Your sources, especially the EFF talk about illegal behavior because Bush didn't even bother to follow FISA. You are confusing illegal by statute and unconstitutional. Many things that are illegal are not unconstitutional. When the ACLU argues they are  unconstitutional, they are making a legitimate argument about how they would like the Constitution to be interpreted, as a litigating organization. They are in the position of Thurgood Marshall in the early 1950s saying that a practice that is currently constitutional should be made unconstitutional. They are sophisticated enough to understand that distinction.
      •  You are impaled by your own words, Hamden (4+ / 0-)
        Recommended by:
        CroneWit, emal, Jarrayy, orestes1963

        Your words:  

        We have to face an unsettling fact: The Fourth Amendment sucks. In the light of recent revelations by Edward Snowden in the Guardian and other media outlets that the NSA and FBI are engaged in widespread, indiscriminate collection of electronic data about phone calls, email, and social media, some media and blogosphere commentators have angrily denounced these programs as unconstitutional or illegal.

        These programs may be outrageous. They may violate your sense of privacy. They may be expensive boondogles and they may be ineffective. They may make certain of you very uneasy about ordering your, ahem, "medical" marijuana from your, ahem, "medical marijuana dispensary" because apparently those phone records are now stored by the NSA for an undisclosed or indefinite amount of time.

        But one thing they are not is unconstitutional. That's because contrary to popular opinion, the Fourth Amendment protections against certain kinds of searches and seizures -- wiretaps and electronic intercepts, for example -- are extremely, extremely weak.

        So let's take a look at what the Constitution and Supreme Court actually say about electronic eavesdropping. The reason the debate over the NSA sometimes seems unbridgeable is that some commentators are evaluating it by the standard of what the law actually is, while others are evaluating it by the standard of what they would hope the law to be, or believe it to be. To paraphrase Donald Rumsfeld, we go into this struggle over electronic privacy with the Fourth Amendment we have, not with the Fourth Amendment we might like to have.

        The Supreme Court has never held, for example, that the Fourth Amendment of the Constitution forbids the government from intercepting and recording electronic communications during warrantless searches or seizures; it has only issued decisions about how evidence obtained by such searches can be used in trials. For most of U.S. history, the Supreme Court gave an implicit green light to nearly unlimited electronic surveillance, eavesdropping and wiretaps by the government, and for most of that period, the government used that authority with reckless abandon.

        The reason this is important to anyone who would like to change the NSA program and other forms of electronic surveillance, is that the Obama administration has been responsive to progressive critiques on many occasions. The president has said he wants to have a debate about the balance between security provided by electronic surveillance on one hand, and privacy required by the traditions of the Bill of Rights. The administration is responsive to critiques based on reality and empiricism; but, however, it has been dismissive of counter factual critiques, hyperventilating or strategies it considers illogical. In other words, if you actually want to change these programs, and have the administration listen, you can't start with a false premise, and the idea that the administration is violating the Constitution (or that President Obama as a former constitutional law professor should "know better") is a false premise.
        ...
        If there's one thing that I've found characterizes the Obama administration, it's that they scrupulously adhere to the Constitution and the law. President Obama really is the "law professor president." The problem is that the administration adheres scrupulously to the letter of the law even if it seems that they sometimes miss the spirit of the law. There will be no real scandals in this administration (as opposed to made up fevered dream scandals). No drama Obama is for real.

        Once you understand through empirical legal analysis that the administration adheres scrupulously to the letter of the law, you realize that with issues like the NSA, the public is reacting to the fact that the law sucks. In the area of electronic eavesdropping, wiretapping and surveillance, it has sucked for a really, really long time, and it actually sucks a lot less under this administration than the Bush administration, even though it still sucks. The public is reacting to the fact that we are back in Clinton era legal sucktitude, and that the pre-Bush past was not as rosy as we thought it was. (emphases added)

        You start with the statement that the Fourth Amendment sucks, the rest of your paragraph overflows with contempt toward those who disagree with current NSA surveillance, you pose the Administration as a rational and scrupulous paragon against the hyperventilating unwashed... Nowhere, except in an awkward curtsy toward the end do you acknowledge that the right to be left alone is one of the chief foundations of what makes a society possible, that we have been fighting a dangerous and difficult struggle against official lawlessness, and that the Fourth Amendment is not the fault. Indeed, it's what exposes the hypocrisy and lies that have been used to justify surveillance.  

        In your response to me, you take the usual dodge of the intellectual bully by claiming This "blame the Fourth Amendment" line was just a joke!  Where's your sense of humor?    Contrary to what you claim, I read and read carefully what you wrote. You just don't like the fact that I hear you, and your dismissive attitude, loud and clear.

        You state,

        I did not write that the law was statutes. I said it was the text of the Constitution, Supreme Court decisions, opinions and orders, statutes, and statements of the law by law books about the law as pronounced by authoritative organs.
        Actually you didn't. In at least one place, you made one of those awful and revealing errors in that regard, saying:
        the Constitutional law of electronic interceptions is entirely Supreme Court made Constitutional law.  
        The courts making law?  No, legislatures make laws. Had you said that the law of electronic intercepts had been heavily influenced by Supreme Court interpretations, I'd agree. To say the Supreme Court made the law is to misunderstand at a very deep level.

        Minor points:

           

        Thurgood Marshall disagrees with you [that, following the adoption of the 13th, 14th, and 15th Amendments, there was no Constitutional basis for Jim Crow.]
        You misunderstand both Marshall and Jim Crow. Marshall adopted a tactic to undermine Jim Crow, he didn't disagree with the unconstitutionality of Jim Crow. But Jim Crow was much more than "separate but equal," which is what you seem to be arguing. There was not, for example, even a pretense of equality in denial of the right to vote, a right that is explicitly stated in the 15th Amendment. The denial of the right to vote was essential to maintaining Jim Crow, since in Louisiana, South Carolina, and Mississippi, blacks were a majority. It was official lawlessness, not a failure of the Constitution that made Jim Crow possible.  

        You state,

        I assume Rather was correct because he was in fact meticulously fact checked and his accusations were correct.
        You quote not Dan Rather, but Steve Croft... and then you link to Dan Rather... who was  fired from 60 Minutes for a failure to fact check the allegations about George Bush's National Guard service.  So, using Rather as an exemplar for 60 Minutes' adherence to fact-checking seems... eccentric.

        As to whether Kroft was correct in his specific allegations or not, I don't think he was, but the matter's debatable. I do not think that "If you made a phone call today [in 2000] or sent an e-mail to a friend, there's a good chance what you said or wrote was captured and screened by the country's largest intelligence agency."  NSA Watch tends to agree, since it seems that its collection was not focused on domestic sources and did focus on satellite intercepts. And they just didn't have the capability to store or analyze any but a tiny fraction of traffic. To equate the situation in 2000 with now is misleading. Storage and search capability transforms what was once a capability to snoop into a Stasi-like surveillance capability.

        You state,

        Again, you didn't read the diary very carefully.  I pointed out repeatedly that many of Hoover's actions were illegal. Black bag jobs were breaking and entering and therefore illegal. Bush's warrantless wiretaps were illegal. Your sources, especially the EFF talk about illegal behavior because Bush didn't even bother to follow FISA. You are confusing illegal by statute and unconstitutional.
        Actually, I complimented you on the part about Hoover. Perhaps my reading skills are not the problem here. You would have done well to read the EFF link. The FBI violations it discusses are very wide-ranging, not just disobeying FISA. The point is that the extent of lawlessness now is comparable to what happened under Hoover.  As for statute vs. Constitution, one of the sections of the EFF link is titled "Violations of the Constitution, FISA, and Other Legal Authorities."  

        I don't think I'm the one who confuses statute and Constitution, nor the one who confuses making law and interpreting it, nor the one who has been given both a compliment and a reprimand and understands neither.

        •  Actually, what Rather failed to fact-check was (2+ / 0-)
          Recommended by:
          CharlesII, FishOutofWater

          the provenance and chain of possession of the documents he was using as evidence.

          He couldn't prove that he had either the original documents or verified copies of the original documents - and CBS hung him out to dry on that technicality.

          If it's
          Not your body,
          Then it's
          Not your choice
          And it's
          None of your damn business!

          by TheOtherMaven on Wed Jul 17, 2013 at 02:37:43 PM PDT

          [ Parent ]

        •  Charles don't be a literalist. He's right on this (2+ / 0-)
          Recommended by:
          HamdenRice, Quicklund
          HR: "the Constitutional law of electronic interceptions is entirely Supreme Court made Constitutional law. "

          ChasII: The courts making law?  No, legislatures make laws.

          Because the Constitution did not foresee information technology and SCOTUS has the final say on what the law is, SCOTUS has had the opportunity to make up the law on IT. The results have not been pretty.

          This diary lays out the brutal reality of how the court's interpretation of the 4th Amendment concerning IT sucks.

          look for my eSci diary series Thursday evening.

          by FishOutofWater on Thu Jul 18, 2013 at 05:24:59 AM PDT

          [ Parent ]

          •  Res ipsa loquitor, Fsih (0+ / 0-)

            I know what he's saying, Fish, and I don't disagree with the spirit of the statement. I'm calling him to account for saying that I don't understand what law is, when he has stated, without shock or disgust, that the courts are making laws. He apparently accepts this as normal.

            If judges are making laws, they are usurping the function of the legislature. One may argue that the legislature abdicated the function, but the legislature did make laws. There was a national crisis over surveillance and a Church Commission. Congress did express an opinion on the topic. And, as far as I am concerned, the Fourth Amendment is a beacon that leaves no shadows in which wannabe tyrants can hide. Judicial activism on this point is inexcusable.

            I was hoping to get Hamden to see that there were some points in my argument that have value, just as I have said that there are parts of his post that I see have value. But he apparently won't even concede he did the 60 Minutes links in a way that made it seem as if he was trashing their fact checking.

            Res ipsa loquitor The thing speaks for itself.

             

      •  May I commend you to Justice Harlan's (1+ / 0-)
        Recommended by:
        HamdenRice

        dissent in US v. White when you update?

        He who would trade liberty for security deserves great customer service.

        by Publius2008 on Wed Jul 17, 2013 at 01:43:19 PM PDT

        [ Parent ]

    •  Thank you, CharlesII. Beautiful analysis. (0+ / 0-)

      And I think that the three points you make in the paragraph below account for a huge proportion of the acrimony that takes place in NSA-related diaries.

      So, on two grounds, this post fails. It fails to understand the role of Constitution as a goad to help the asses of the law recognize that they endanger social stability by denying rights that are given by our Creator (or "are inherent to human beings" for those who do not believe in a Creator). Second, it treats opponents of your point of view as if they have no basis for their beliefs. And, as a minor point, it dwells on the lawlessness of the past as if that should define our attitude in the present.
      I hope the diarist and his followers will be able to consider your analysis of this diary, and I hope they will be able to examine their practices in comment-threads in light of the three points you make here.
      •  the acrimony as you put it (2+ / 0-)
        Recommended by:
        HamdenRice, Quicklund

        comes from people not understanding the difference between 'legal but I think it should be unconsititional (and therefore illegal) and illegal.

        Further increasing the acrimony as you put it is the fact that a number of people then instead of debating the issue (or just agreeing to disagree) then reach for the insults, smears and lies. Almost as if they think if they bully and intimdate enough they can 'win' never understanding that 'winning' is entirely besides the point or that their methods invalidate their message and turn people off.

        I'd rather read a diary like this one even if I disagree with the conclusions then the fast majority of the other NSA related diaries.

        In the time that I have been given,
        I am what I am
        Shop Kos Katalogue or the Parrot gets it

        by duhban on Thu Jul 18, 2013 at 01:01:50 AM PDT

        [ Parent ]

        •  Do you know how... (1+ / 0-)
          Recommended by:
          corvo

          stupid you sound? I mean, seriously. You sound monumentally stupid even without saying anything substantial at all. And that takes some talent, I'd say. So, you are an extremely talented know-nothing. Congratulations!

          'If you want to be a hero, well just follow me.' - J. Lennon

          by Clive all hat no horse Rodeo on Thu Jul 18, 2013 at 04:28:23 AM PDT

          [ Parent ]

          •  you want to call me stupid? (1+ / 0-)
            Recommended by:
            Quicklund

            you who have never actually engaged an argument of mine or really anyone else's I've seen?

            You who constantly insults, bullies, smears and lies about people?

            You can take your sanctimonious bullshit to someone that cares what you think because as sure as the sun will rise in the west I don't give  flying fuck whether you think I am an idiot or a genius.

            You are irrelevant to me

            Your opinion is irrelevant to me

            You could never interact with me again and I'd never even notice.

            How about instead of proving the point behind that comment you go find a discussion and for once actually contribute constructively?

            In the time that I have been given,
            I am what I am
            Shop Kos Katalogue or the Parrot gets it

            by duhban on Thu Jul 18, 2013 at 04:46:32 AM PDT

            [ Parent ]

            •  OK. There are many examples, but I'll go with (1+ / 0-)
              Recommended by:
              corvo
              funny because Assange is facing charges in (0+ / 0-)

              Iceland not America.

              You should keep up on current events more

              In the time that I have been given,
              I am what I am

              by duhban on Mon Jun 24, 2013 at 06:26:08 PM PDT

              [ Parent ]

                   LOL. Yeah, Sweden is exactly like Iceland. nt (10+ / 0-)

                  'If you want to be a hero, well just follow me.' - J. Lennon

                  by Clive all hat no horse Rodeo on Mon Jun 24, 2013 at 06:28:01 PM PDT

                  [ Parent ]
                       point still stands (0+ / 0-)

                      In the time that I have been given,
                      I am what I am

                      by duhban on Mon Jun 24, 2013 at 06:57:14 PM PDT

                      [ Parent ]
                           What point? That you know fuck all of which (9+ / 0-)

                          you blather? That point?

                          'If you want to be a hero, well just follow me.' - J. Lennon

                          by Clive all hat no horse Rodeo on Mon Jun 24, 2013 at 07:11:43 PM PDT

                          [ Parent ]

              QED

              'If you want to be a hero, well just follow me.' - J. Lennon

              by Clive all hat no horse Rodeo on Thu Jul 18, 2013 at 12:33:22 PM PDT

              [ Parent ]

            •  ROFLMFAO... (1+ / 0-)
              Recommended by:
              corvo
              You can take your sanctimonious bullshit to someone that cares what you think because as sure as the sun will rise in the west I don't give  flying fuck whether you think I am an idiot or a genius.
              So you do care that I think you are a blithering idiot troll with too much time on your hands? That's so sweet!

              'If you want to be a hero, well just follow me.' - J. Lennon

              by Clive all hat no horse Rodeo on Thu Jul 18, 2013 at 12:56:31 PM PDT

              [ Parent ]

          •  This response is certainly itronic (1+ / 0-)
            Recommended by:
            duhban

            I thought it was performance snark, but subsequent comments indicate no, it is just powerful irony.

            Further increasing the acrimony as you put it is the fact that a number of people then instead of debating the issue (or just agreeing to disagree) then reach for the insults, smears and lies.
            Do you know how stupid you sound? I mean, seriously. You sound monumentally stupid even without saying anything substantial at all. And that takes some talent, I'd say. So, you are an extremely talented know-nothing.
        •  Another cause for acrimony (0+ / 0-)

          Duhban, there may be people--on any side of an argument-- who think that others should accept their opinions as undeniable fact. There are also many who have studied and researched issues carefully over decades and simply disagree with a post.

          Hamden's tone toward his opponents has been consistently dismissive. I have given a number of specific examples, including the rather obvious point that he hasn't even mentioned the work of ACLU, EFF, CCR, and other organizations in opposing abuses.  

          Acrimony directed toward Hamden is not the result of other people confusing one's opinions with facts. It is the result of Hamden treating his own opinions as facts, and others as doormats.

          •  I read your examples (0+ / 0-)

            I agree with Hamden's counter on that score.

            Further 'tone' is incredibly subject though text unless you have actual written evidence it very well could be all you. Though really I don't think you are include in that you want an example of acrimony look to Clive's posts which have to the weekly winner for the most hilariously ironic said this week.

            In the time that I have been given, I am what I am
            Shop Kos Katalogue
            Der Weg ist das Ziel

            by duhban on Thu Jul 18, 2013 at 09:31:38 PM PDT

            [ Parent ]

            •  I'm defending civility, not Clive (0+ / 0-)

              For what it's worth, I think that Clive is in no way helping his cause by his tone. By responding tit for tat, both of you are diminishing what good there is in Hamden's post-- which, as I said, contains a long, worthwhile segment on Hoover and Cointelpro.

              I admire a well-delivered insult as well as anyone. But insults should serve the larger goal of lifting everyone, even the person we disagree with.

              We should all want DK to be an exemplary community, one that shows that lefties can virulently disagree on issues, yet never turn disagreement into an issue of personalities. We claim to be a reality-based community. That means focusing on real issues, not on distracting fluff. It means taking time to think and research, rather than just stating opinions.

              The left has no power to waste. Achieving progress is always a seemingly-hopeless cause, one that lacks the unanimity that money-driven politics can muster. The few strengths we have are a respect for the truth and solidarity with one another. Solidarity is not the lockstep discipline of the right. It's what comes from committing oneself to a cause larger than ourselves.  

              •  and I am making a point (0+ / 0-)

                namely that no matter how rude you thought Haden was to you (I would agree he did kind of sound 'brisk' so I can understand to an extent you feeling insulted) Haden did meet your argument on it's merits.  I wouldn't say the same of Clive who frankly is making my point for me. He did not and will not actually debate the issue and that does cause acrimony.

                You think this hasn't become about personalities? I would disagree there are a couple of people here I want nothing to do with. I am so sick of the same insults, jeers, lies and smears that I simply don't care what they have to say. And frankly I think the site is veering away from being a reality based community.

                This frankly is a shame because I also agree with you that the left has little power to waste. We  face an uphill battle and I simply don't see solidarity.

                In the time that I have been given, I am what I am
                Shop Kos Katalogue
                Der Weg ist das Ziel

                by duhban on Fri Jul 19, 2013 at 01:13:44 PM PDT

                [ Parent ]

          •  Here's the problem (0+ / 0-)

            I honestly cannot figure out what your issue is. For example, you cited the EFF and ACLU on contemporary NSA issues. I wrote that the Center for Constitutional Rights also has a good litigation strategy.

            But if you read my diary carefully, ask yourself what is it about?

            It's about:

            1. The telegraph and Lincoln's use of it during the Civil War.

            2. The Olmstead case.

            3. The Weeks case.

            4. The Nardone case.

            5. J. Edgar Hoover.

            That's pretty much it. In this diary I bring us up to around 1965.

            Are you saying my summaries of these cases is wrong? Does the EFF have a different take on Olmstead? Have I not accurately described what a telegraph machine is?

            Or do you feel -- and I think this is where you're coming from -- it's somehow wrong for readers to know what the Omstead, Weeks, Nardon, Smith and Katz cases say?

            You also seem outraged by my citing Dan Rather as an example of correct fact checking. In your mind, you think I am making fun of Rather. Even though I've told you you're wrong, you seem to be convinced you've read my mind on why I cited him.

            Okey Dokey -- you know more than me about my motivation for citing Dan Rather. You have that amazing dental filling that allows you to receive transmissions directly from my inner most thoughts to your molars to your brain.

            As I said, okey dokey.

      •  I hope so too, CW. (0+ / 0-)

        Reasonable people can disagree, but we ought to be able to find common ground more often than we do.

        We ought to find value in one another's arguments, even if only to sharpen our own.

  •  "EFFECTS" .... period. (1+ / 0-)
    Recommended by:
    CroneWit

    This covers all technology from 1790 till the end of the Universe.

    The only way "effects" doesn't cover something, email or phone conversations, etc.... is if "YOU" choose to rationalize that it doesn't.

    The Supreme Court is there to correct your false rationalization. Yes, they haven't been doing a great job of it, but that is there failure NOT the Founder's failure or lack of foresight. There is a history of decades of inaction or outright blindness to the truth on the part of SCOTUS, but ultimately they come around when people keep shoving it in their face.

  •  Excellent diary. Thank you. (3+ / 0-)
    Recommended by:
    HamdenRice, Quicklund, duhban

    Though I disagree was some of the points in the diary, it is well-written and  should be on the rec list. (With 96 recs, why isn't it?)

    I wouldn't say that the 4th amendment sucks. I would say the court interpretation sucks. Now keep in mind that I believe in loose construction of the Constitution. Thus I believe in the right to privacy, even though it isn't mentioned in the Constitution. Freedom of religion means freedom from religion too.  Much to the chagrin of some of my liberal friends I support the more liberal (as in open and less strict) interpretation of the second amendment.

    I also support the most liberal interpretation of the 4th amendment and am grateful that the latest NSA revelations, confirming what we have long suspected, may lead to a deeper discussion of the topic covered in your diary.

    Unlike some of those on my side, I have no illusions about the past. If anything the past is worse than you portray. Can you imagine Palmer, McCarthy or Nixon having access to today's technology?

    OTOH, there have been attempts to reign in the government. The Church Committee is an obvious example. And things did get worse under Bush after 9-11. I never bought into the "9-11 changed everything" rhetoric. I think a good start at reform would be to roll back and eliminate the Bush programs.

    Thanks again for the diary. I look forward to the next installment.

    A proud member of the Professional Left since 1967.

    by slatsg on Wed Jul 17, 2013 at 10:54:13 AM PDT

  •  I love this. thanks so much (3+ / 0-)
    Recommended by:
    jrooth, Quicklund, duhban

    I have not read the entire piece, but it's so great to have this information on hand. As well as the informative dissenting comments, especially the ones with links. Mind, even if I read all this and all those I'd not understand it all--but I will have a much better grasp than I did before! :) Thanks so much for taking the time to put this together.

    And for mentioning Echelon! I was beginning to think I dreamed those months (years, even (yes, I am old)) of hissing and snarling about Echelon on IRC chat, and sarcastically writing chat messages we hoped the NSA would pick up.

    Anyway, I look forward to the rest of your series and the commentary. Meaty stuff!

    (I am on my phone and have trouble tipping and reccing, but please consider it done in spirit for the diary and many of the comments.)

    True radicalism is finding reasons for hope, not grounds for despair. - Ray Williams

    by Nanette K on Wed Jul 17, 2013 at 11:07:47 AM PDT

  •  OMG (3+ / 0-)
    Recommended by:
    jrooth, Quicklund, duhban

    Thank you!!!! Thank you so much for the work it must have taken to put all of this together. It's going to take me a long time to go through it, but I am so glad you did this, and am glad we seem to actually having a good discussion going on about it here. And thanks to whoever rescued this, too. Very much deserved.

    Time is of no account with great thoughts, which are as fresh to-day as when they first passed through their authors' minds ages ago. - Samuel Smiles

    by moviemeister76 on Wed Jul 17, 2013 at 11:56:28 AM PDT

  •  Thank you Hamden... (3+ / 0-)
    Recommended by:
    ord avg guy, Quicklund, duhban

    A great read. Restores my hope in the reality based community.

    Obama 2012 http://whatthefuckhasobamadonesofar.com/

    by jiffypop on Wed Jul 17, 2013 at 12:38:16 PM PDT

  •  It simply goes back to the fact (2+ / 0-)
    Recommended by:
    HamdenRice, Quicklund

    there is no right of privacy in the Federal Constitution.  I would note State Constitutions are another story.

    He who would trade liberty for security deserves great customer service.

    by Publius2008 on Wed Jul 17, 2013 at 12:59:16 PM PDT

  •  Thanks for this extraordinary diary. (2+ / 0-)
    Recommended by:
    Quicklund, duhban

    I had to skim fairly quickly but I'm bookmarking and will re-read at more leisure.

    “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

    by jrooth on Wed Jul 17, 2013 at 01:56:35 PM PDT

  •  Fourth Amendment somewhat inadequate (0+ / 0-)

    The key phrase is "unreasonable searches and seizures." That is open-ended language that requires court interpretation. This open-endedness can be both good and bad.
    For example, you can argue that a woman is not secure in her person if required to carry any pregnancy to term. I can argue that I am not secure in my person if I am subject to government invasion of my domicile if I am having sex with another male of the species. In other words, Roe v Wade and Lawrence v Texas can be considered penumbras of the Fourth Amendment. The Supreme Court of Alaska has recognized marihuana as a private matter.
    OK, the Fourth Amendment could spell things out better, but if you are going to say anything "sucks", make it the case law.

    Censorship is rogue government.

    by scott5js on Wed Jul 17, 2013 at 02:17:34 PM PDT

  •  Very educational, thank you! (2+ / 0-)
    Recommended by:
    Quicklund, duhban

    I know that I'm no constitutional scholar, but I like to think of myself as an educated person. And yet still, you're totally right - the fourth amendment really doesn't mean what I thought it meant at all (sadly to say). One of the best write-ups on this subject I've read. Thanks again!

  •  Fabulous diary. A real contribution to this site (1+ / 0-)
    Recommended by:
    duhban

    All your time writing this did not go to waste. Rest assured on that count.

  •  *sigh* Thanks for the brilliant essay (1+ / 0-)
    Recommended by:
    Quicklund

    You reminded me of what I had forgotten:

    The law is not what the law says. The law is what a  bunch of guys in black robes says it says.

    •  And what that means, in short, (0+ / 0-)

      is that almost everyone is wrong about what form of government we have.

      It is not a democracy.

      It is not a republic.

      It is an oligarchy.

      The "representative democracy" trappings are just so much window dressing.

      Control the Supreme Court, and you control the country.

      If it's
      Not your body,
      Then it's
      Not your choice
      And it's
      None of your damn business!

      by TheOtherMaven on Thu Jul 18, 2013 at 07:49:52 AM PDT

      [ Parent ]

  •  Great stuff (1+ / 0-)
    Recommended by:
    Quicklund

    Too bad there's no Moore's Law for the Courts. It's like there's an inverse temporal correlation almost: as our technology get faster and faster, the law get slower and slower...

    Radarlady

  •  This diary reminds me (0+ / 0-)

    of the use of clearly in legal writing.  If something is clear, there is no reason to argue it.  If it requires argument, it is certainly not clear.  The adverb is to be avoided in legal writing.

    The diarist tries to assert that clearly NSA is constitutional, when that is simply not the case.  Legal reasoning would involve a reading of the precedents on the issue with an analysis of their application to the current controversy.  If s/he did that, s/he would find that the issue here is one of first impression.  One may opine that based upon the precedents, the supreme court would find this program constitutional, but s/he cannot assert such a statement with the authority s/he presumes.

    I also find the typical deflection from administration action- here it is the fourth amendment itself [sic] and the supreme court who are to blame- unbecoming when shrouded in an ersatz legal analysis.  It is problematic because it is reactionary at core- there is nothing to be done here.  It is antithetical to robust progressive thought.  

    •  You sound like a proponent of Natural Law (1+ / 0-)
      Recommended by:
      HamdenRice

      The diarist addresses this in the diary.

      The diarist tries to assert that clearly NSA is constitutional, when that is simply not the case.
      The whole diary, in fact, addresses this.
      •  IMO. the diary (0+ / 0-)

        starts with its preferred conclusion and works backwards to justify it.  A proper analysis would consider the value and limitations of precedents as a basis for reaching a conclusion.  Given the precedents in this area, a conclusion that says, this court would likely rule in this manner (based upon each justice's past opinions and statements) would have been more cogent.  

        The bill of rights is a stated expression of those rights held by the people that no government may infringe.  That is a natural law principle that is a governing principle of the bill of rights.  If acknowledgement of this principle makes one a proponent of natural law, we all are.  Otherwise, I don't know how you could divine my position from my comment.

  •  Lots of hard work on this diary (2+ / 0-)
    Recommended by:
    Quicklund, HamdenRice

    Facts and law, no puffery.  A thing of beauty.

    I've been saying it in the comments 'til I'm blue in the face but I haven't had the patience to spell it all out in a diary.

    Well done.

    Law and gut feelings are not the same thing.  That you feel like your privacy is being invaded does not mean something violates the Fourth Amendment.

    Snowden released the details of a LEGAL, CONSTITUTIONAL program.  Just because you don't LIKE the program doesn't mean he didn't commit espionage.

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