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I started to write a long reply to Vyan in his nice diary about all the safeguards against NSA abuse.  It got too long and I thought it too important to see it buried.  It was this part of his diary that stuck out like a sore thumb and made everything else he had said before less relevant.

Some may still argue that they [the NSA's own safeguards] aren't good enough, that simply the fact that the NSA has built this haystack of data is itself a violation of the 4th Amendment.  There are court cases making this argument right now, but another question I would ask them is : what would you have them do instead?
I'll save us all a lot of time and tell you that I, personally, suspect it will never be found to be in violation of the 4th amendment.  If it is, they'll find some tweak to make sure it is consistent in some way.  But that doesn't matter a whit to me, because even if it is totally, solidly, unimpeachably consistent with every article of the constitution, it's still unacceptable and, even if it should be proven constitutional, that merely shows that our constitution is too weak to stand up to the abuse of its spirit we inflict upon it.  

That's one reason I don't get involved in constitutionality arguments about this.  They're red herrings.  I don't care if it's constitutional.

To many of us, this isn't about the Fourth Amendment, or even about strictness or laxity of NSA safeguards.  It's all about that damned haystack.  NSA whistle blower William Binney described that haystack a different way in Wired:

Sitting in a restaurant not far from NSA headquarters, the place where he spent nearly 40 years of his life, Binney held his thumb and forefinger close together. “We are, like, that far from a turnkey totalitarian state,” he says.
We're arguing about what use this haystack is going to be put use to.  Vyan's diary, and Dana Priest's article, emphasize the good will nature of "safeguards" in place that structure how that haystack of information is used.  Binney says that haystack is a turnkey totalitarian state.

[Quick update: Some people don't understand what the word TURNKEY means.  From wiki:]

Turnkey refers to something that is ready for immediate use, generally used in the sale or supply of goods or services. Turnkey is often used to describe a home built on the developer's land with the developer's financing ready for the customer to move in.
The distinction between the system Dana Priest and Vyan describe and Binney's turnkey totalitarianism lies all in how it's used.  For instance, the day President Liz Cheney sends a secret memo to NSA that American dissidents are traitors and sympathetic to foreign terrorists, (and God knows that's what the neocons have always said) those NSA safeguards may be exposed as a thin veneer covering a massive authoritarian spying machine.  It might not be used that way today, but it is designed in such a way as to be used that way on a moment's notice.  

And I don't just worry about President Liz Cheney, although that's frightening enough.  The history of the US shows us that the NSA and CIA can go off the rails and start making its own decisions about what's a good idea and what's not.  The Church Committee of the seventies, which exposed CIA and NSA misdeeds against the American public, found time and time again that the bosses didn't know what the people beneath them were doing.  These actions were often deliberately compartmentalized in such a way that the worst abuses didn't start at the top nor did reports about them.  

All the pieces are being put in place for a massive apocalyptic abuse that may or may not come, depending only on how good-hearted the bureaucrats that run our secret government agencies are.  The fact that it has not yet happened is no consolation.  

To me, this means there are no real safeguards, just conventions of the moment.  There is nobody authorized by the law to go screaming to the press about what abuses the NSA may commit.  Congress itself is only barely kept informed, as we know.  (Eleven sentences in the last briefing).  And when they are informed, they are required to keep their lips zipped and only speak in code.

Senator Mark Udall with Senators Kirsten E. Gillibrand and Claire McCaskill. Mr. Udall, bound by secrecy rules, has been able only to hint at the extent of communications surveillance.
Hinting?  How much further does the surveillance go than what we have heard already?  Is there yet another shoe to drop?  What the hell is that haystack.

The NSA, and Dana Priest is happy to play along with this, has been relying on a specious argument that Clapper made to Andrea Mitchell when he was asked to explain why he perjured himself:

James Clapper Says He Answered Senator Wyden in the ‘Least Untruthful Manner’ He Could Think Of:

[Extensive snipping, read the original if you like]

    ANDREA MITCHELL: ... Can you explain what you meant when you said that there was not data collection on millions of Americans?

    JAMES CLAPPER: ...I responded in what I thought was the most truthful, or least untruthful manner by saying no. And again, to go back to my metaphor. What I was thinking of is looking at the Dewey Decimal numbers-- of those books in that metaphorical library-- to me, collection of U.S. persons' data would mean taking the book off the shelf and opening it up and reading it.

[...]  And this has to do with of course somewhat of a semantic, perhaps some would say too-- too cute by half. But it is-- there are honest differences on the semantics of what-- when someone says "collection" to me, that has a specific meaning, which may have a different meaning to him.

Clapper admitted engaging in a devious redefinition of the word "collection."  See, if I just GATHER information on you, every call, email, surf history, trip to the store that you've ever made, and put it in a database (we'll call that a haystack), then I haven't really COLLECTED it, because gathering and collecting are different in some way.  

Different in what way?  Well, Clapper uses the analogy of books in a library.  In this analogy, every detail about the lives of Americans that is kept on their yottabyte database is like a book on the shelf.  You can't read ALL the books in the library, can you?  The only books in the library that count are the ones you take off the shelf and read.  So their database, their haystack is like that library full of millions of books that they might never get around to reading until if and when they decide they want to.  Which might be never!  That's a lot of books.

I would run with that analogy this way:  A book library is a POWERFUL POWERFUL TOOL.  It is a huge amalgamation of information.  Not all of it is necessary at any moment, but just having it there empowers the library's keepers and users.  A library of the lives of everybody on Earth would be the most powerful library ever constructed, whether any individual book is ever taken off the shelf or not.  The simple fact that it is there for the taking is cause for enormous concern.  The Stasi, the KGB, the Gestapo, all of them would have drooled and had epileptic seizures contemplating the prospects of such a powerful tool.

"But the Stasi would have used their library/haystack differently than our NSA does!" you might say.

I don't know that I actually believe the NSA about how they use it but, sure, let's take them at their classified word for the moment.  Even so, that haystack should never have been created in the first place because it CAN be used that way.  That's what Binney means when he says that we have created a "turnkey totalitarianism system."

It also creates a preposterous level of potential for blackmail abuse.  

"But the NSA would never blackmail anybody!" you say.

Using CIA funding, Cameron converted the horse stables behind Allen Memorial into an elaborate isolation and sensory deprivation chamber which he kept patients locked in for weeks at a time.[121] Cameron also induced insulin comas in his subjects by giving them large injections of insulin, twice a day for up to two months at a time.[103] Several of the children who Cameron experimented on were sexually abused, in at least one case by several men. One of the children was filmed numerous times performing sexual acts with high-ranking federal government officials, in a scheme set up by Cameron and other MKULTRA researchers, to blackmail the officials to ensure further funding for the experiments.[122]
That's not a bad James Bond flick.  That's our history as a country.  That's what secret cold war government agencies did because nobody wanted to say no to them.  They blackmailed the officials that did their funding with brainwashed child prostitutes.  If I made up stuff like that, you'd think it was too preposterous for good fiction.

"But that was then.  This is now!  We have safeguards to prevent that kind of thing happening again!"

Do we?  Can you ever safeguard against that?  We've lost our innocence on this, so it's not a paranoid question.  It's a responsible one.  We're creating the greatest tool for controlling Americans through blackmail that we have ever seen, and we're putting it in the hands of the same unprosecuted war criminals that carried out Bush's torture programs.

Vyan asked one other very good question at the end of the quote at the very top.  "What would you have them do instead?"

I have some suggestions for that, but let me start with the easiest one to make:


The human race has survived some 70,000 years since the evolution of language, if I understand National Geographic correctly.  In those 70,000 years, we have never had a huge haystack/library/turnkey totalitarian state of this size and scope.  We survived quite well without it.  

Despite what known war criminals like Michael Hayden might say, I don't believe that we have to have this.  

This argument might have a different shape to it if there were no domestic spying at all, and we were only talkinga about recorded foreign communications.  That could pose problems, but there would not exist the same issue of the corrosion of our democracy.  Spying on other country's people: rude.  Spying on your own people: Evil.  It turns us into subjects of their study and control instead of the guys who write their checks and who can fire them.  It means that their charter has expanded to include not just threats from terrorists but threats at home from people that they judge worthy of observation, including people who pose a threat to their continued public support and funding.

A couple of weeks ago, I donated money to Wikileaks, and did it very proudly.  I felt like I was sticking a thumb in the NSA's eye.  I thought to myself, Heh, they're probably going to keep a closer watch on me now!  Since then, it has occurred to me, yeah, they probably really are.  It doesn't feel as cool after a while.  And it's depressing to think that that is anything I should ever have had to worry about as an American.  Since then I have written diaries about the NSA calling out Michael Hayden, and I have written a public letter to Vladimir Putin about Snowden's asylum.  Yeah, I suspect my chances of being under observation are ratcheting up, don't you?  I can live with the prospect, and with never knowing for sure whether it's really happening to me.  That has been demonstrative in its own way that I need to be sober about my dissent.  Personally, I dislike being sober.  

As they say, if you aren't doing anything wrong, you don't have anything to worry about.  It's only after you realize you could be under observation that you realize none of us are as innocent as we think.

Originally posted to Dumbo on Sat Aug 10, 2013 at 09:37 PM PDT.

Also republished by The First and The Fourth.

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