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[This is the re-publication of a diary from June 19. I am not usually wont to re-publish my work (out of 133 diaries, I have only re-published part of one once before this). However, I feel this diary deserves it, as it is a "scoop" on an important subject. Besides the "scoop" nature of the diary, I believe it is imperative for Greenwald, who claims that the United States is violating the Constitution and is a "security state," be posed a few hard, but legitimate, questions.]

[Please note that I have made changes to the original diary in that I have added into the body of this version a screengrab of Glenn Greenwald, in 2006, chastising the Bush Administration for not obtaining a court order for the NSA metadata program, juxtaposed with a screengrab of Greenwald, in 2013, chastising the Obama Administration for obtaining a court order for the NSA metadata program. Also, I have added the word "Exclusive" to the title of the diary. I have had the time to search the web to see if this has been previously reported. It appears that it has not. Finally, there is a string of comments that follow the earlier version of this diary. Along with the original diary, they can be found here.]

EXCLUSIVE: Glenn Greenwald Proves the Current NSA Metadata Program is Constitutional ... in 2006!

As some of you may know, I have been asking Glenn Greenwald to discuss the Supreme Court case of Smith v. Maryland, 442 U.S. 735, 744 (1979). That's because the Smith case, decided thirty-five years ago, held that Government could obtain the telephone metadata of even known, identified persons without a warrant. All that was needed to obtain the metadata, according to the Supreme Court, was a court order or a subpoena, which is quite a bit different from, and easier to acquire than, a warrant.  Every court that has heard a case involving the NSA metadata program has dealt with the Smith v. Maryland case. The reason the NSA metadata program is still ongoing, despite the recent public controversy, is because that particular case makes it Constitutional.    

Yet, after having reviewed every Greenwald-authored or co-authored article at The Guardian since June 2013, as well as every Greenwald-authored or co-authored post on TheIntercept blog since its inception, I have found zero mentions by him of that seminal case. This is the Roe v. Wade of metadata cases, so I thought his obvious and protracted evasion of the issue a little strange. Had Greenwald ever been aware of the Smith v. Maryland case? I couldn't locate a single mention of it.  

Until now.

In a 2006 post on blogspot.com, Glenn Greenwald went into quite a lot of detail about pen registers (the subject of the Smith v. Maryland case), the Smith case itself, and the FISA laws that applied to the metadata program. Greenwald opined about what the "Constitutional" standard should be and dug into the law, chastising the Bush Administration for not obtaining court orders before demanding metadata from telephone companies.

The crux of the matter is this: Greenwald said in his 2006 piece that the then-NSA program ran afoul of Smith v. Maryland and the Fourth Amendment because the Bush Administration did not obtain a court order to gain the metadata from the telephone companies. That could make the program unconstitutional per Smith v. Maryland. Greenwald also argued that the metadata obtained by the Bush Administration provided "identification" information about the people making and receiving the telephone calls, which meant that the metadata program could possibly violate the FISA law. That could make the program illegal by statute. The problem for Greenwald is that, between 2006 and 2013, those defects in the NSA procedures were changed.

There was a third issue involving Article II. Bush Administration officials, apparently, argued in 2006 that Article II gave them the right to run the NSA program the way they were doing it because of national security. Greenwald was against that interpretation of Article II. The thing is, the Obama Administration has not adopted that kind of reliance on Article II as a legal basis for the NSA metadata program. So even this potential problem is no longer a problem. This left 2013-Greenwald with two options: Either move your goal posts, or ignore the fact that the Government made the changes that 2006-Greenwald thought necessary to bring the NSA program into Constitutional and legal compliance. Greenwald chose to ignore the changes. Here are some quotes:


"Section 214’s modification of prior law is both modest and eminently reasonable. Agents are still required to obtain a court order before installing a pen register. In addition, they are still required to make a solemn representation to the court; now, however, that is limited to certifying that the information sought would be relevant to an investigation to protect against international terrorism or clandestine intelligence activities."

It is true that, strictly speaking, at least based on what we know, the Government has not used pen registers here. They didn't need to. Instead of collecting this information telephone-by-telephone, they just skipped the whole pen register annoyance and had the telecommunications companies give them all of that information for every phone. Still, it is hard to imagine (at least for people acting in good faith) how it could be illegal for the Government to use a pen register device without a court order for a single phone (it appears clear that that is illegal), but it is perfectly legal for the Government to obtain pen register information for everyone's phone in the country without bothering to obtain a court order of any kind.

(quoting ex-Federal prosecutor Andrew McCarthy) As you can see, Mr. Greenwald seems to be suggesting that all Bush's NSA had to do at the time was to get a court order for the metadata. (Note that the court order described above is different from a warrant and requires a lesser burden of proof to obtain one.) Of course, the Bush Administration was notorious for failing to get a warrant or even its little brother, a court order, for actual FBI-van-parked-outside-ish-style wiretapping. Greenwald goes on:    



Finally, I would be remiss if I failed to point out this passage written by Andrew McCarthy from the above-linked debate on The Patriot Act and FISA, something McCarthy wrote before he knew the President had ordered eavesdropping on Americans without court approval:

"Why such extensive access with virtually no court supervision? Because the items at issue here are primarily activity records voluntarily left in the hands of third parties. As the Supreme Court has long held, such items simply do not involve legitimate expectations of privacy. See, e.g., Smith v. Maryland, 442 U.S. 735, 744 (1979)."

(quoting ex-Federal prosecutor Andrew McCarthy). Greenwald has heard of the Smith v. Maryland case! But, why mention it in 2006 and completely ignore it from June 2013 to June 2014?

Perhaps it's because if he ignored the case, and if he ignored his 2006 vetting of the NSA metadata program, and if he ignored the changes made by the Obama Administration and Congress to the NSA procedures making them Constitutional and legal, Greenwald might be able to get away with something like this:

greenwald


That is Greenwald, in his 2006 blog, chastising the Bush Administration for not obtaining a court order to collect metadata for the NSA metadata program. And here's 2013-Greenwald:

greenwald1


And 2013-Greenwald is chastising the Obama Administration for obtaining a court order to collect metadata for the NSA metadata program.

In the very first paragraph of his very first post dealing with the issue of the NSA metadata program in 2006, Greenwald alludes to the Smith v. Maryland case by linking, with approval, the analysis of that case's application to the NSA program as provided by Law Professor Orin Kerr of the George Washington University School of Law:


Orin Kerr has a post which preliminary assesses some of the legal issues involved with the domestic data gathering program, concluding (in his standard, very careful law-professor-ese) that "my very preliminary sense is that there are no Fourth Amendment issues here but a number of statutory problems under statutes such as FISA and the pen register statute." I think -- preliminarily -- that the statutory problems may be more severe than he seems to suggest....

Note that Greenwald did not question the professor's analysis of the Constitution and, even specifically, the Fourth Amendment.

2013-Greenwald's failure to disclose to the public and discuss the Smith v. Maryland case regarding the Snowden situation is like spending a year of public discussion on the constitutionality of Choice without once bringing up Roe v. Wade. It is like a year's worth of debate about constitutional limits on campaign finance reform without breathing the words Citizen's United.  

If Greenwald was an attorney arguing his current position about the NSA metadata program in a courtroom in front of a judge, he would be under an ethical duty to advise the judge of the Smith v. Maryland case because it is "adverse authority." See, e.g., A.B.A. Model Rule of Professional Conduct 3.3. "Adverse authority" is any caselaw or statute or regulation or other authority, controlling in that jurisdiction, which applies to the issue being litigated, and which contradicts your position. A thirty-five-year-old United States Supreme Court case is the cream of the crop when it comes to adverse authority. Does Greenwald owe less of a duty to the public because he's supposed to be a "journalist"?  

I can see how not mentioning the Smith v. Maryland case would be in Greenwald's personal best interest. If he did mention the case, somebody might go looking to see if he had discussed the subject previously, and finding that he had, analyze what he wrote at that time, then compare it to his current stance. That would open up a can of worms for Greenwald and Snowden. Intrepid and curious journalists might ask:

If the only reason you felt the Bush-era NSA metadata program was unconstitutional was because the Bush Administration didn't ask for a court order for the metadata, but the Obama Administration is getting a court order for the metadata every single time, why the fuss?
Reporters might ask this, too:
If the reason the Bush NSA metadata program was illegal pursuant to the FISA laws was because the metadata could provide some type of "identification content" about the author of the communication employing the Bush procedures in use at the time, but the Obama NSA metadata program uses minimization procedures which strictly forbid any identification of US Persons, and it requires that all US Persons remain completely anonymous (unless there is proof of a link to terrorism), why the fuss?
Reporters--even bloggers--might ask these hard questions of Greenwald:


I'm not going to question why this is a big news item in 2013 and 2014 when it was such a little news item in 2006. However, the critic who set standards to be applied in 2006 should explain why his same standards don't apply in 2014. He claimed that President George W. Bush's NSA metadata program was unconstitutional because the NSA didn't seek a court order before obtaining the information. There's no dispute that under the current set of circumstances Verizon was served with a court order to turn over metadata. Those are all links to Greenwald's reporting in The Guardian which shows that, in fact, the Government had obtained a court order to access the metadata. Greenwald claimed that President Bush's NSA metadata program was illegal because it revealed identification content, but the Obama Administration's program does not allow the NSA to look at information like names or addresses or any other immediate identifiers. Why the double standard? Mostly, though, why the evasion and radio silence?

Playing Devil's Advocate here, it could be argued that Greenwald had other reasons for believing the NSA metadata program was unconstitutional, reasons that he wasn't able to describe in his blogspot.com post in 2006 because of time constraints or because he hadn't fully researched the question or because there was another, unidentified reason. (Forget, for a moment, the fact that thirty-six of thirty-seven Federal courts that have heard the matter have held that the Smith v. Maryland case applies and that the program is legal. The only court of the thirty-seven that said the program might be illegal failed to enjoin it.)

A time constraints argument is without merit, as Greenwald did have enough time to update his post four times, with one of the updates mentioning a media appearance and another talking about his then-current book. Also, Greenwald's not having fully researched the question doesn't seem like a worthwhile argument, as all of the thirty-seven courts that have litigated the matter have had Government and/or private and ACLU attorneys briefing the legal issues, and those courts also had staff attorneys to research the law. Judges, themselves, have been known to crack a law book or two on occasion.

Probably the best argument Greenwald could make is that this was a preliminary post. He even uses the words "preliminary" and "preliminarily," as well as the phrase "none of this is set in stone." Still, he did cite the legal opinion of a law professor, reviewed the lengthy USA Today article breaking the 2006 story, looked at the FISA laws and other possibly related laws, and he conducted additional research into the opinions of supposed experts, including Kate Martin, then-Director of the Center for Strategic Studies, ex-Federal prosecutor Andrew McCarthy, and Mary DeRosa, senior fellow in the Technology and Public Policy Program at the Center for Strategic and International Studies.

Additionally, a problem with the argument that Greenwald's arguments were only preliminary is Greenwald himself. In an earlier posting at the same blog, Greenwald chastised other lawyers for providing opinions on the constitutionality and legality of the program before having had the time to effectively research the law. This is what he wrote:


Magically, hordes of brilliant pro-Bush legal scholars have been able to determine instantaneously -- as in, within hours of the program's disclosure -- that the program is completely legal and constitutional (just like so many of them were able confidently to opine within hours of the disclosure of the warrantless eavesdropping program that it, too, was perfectly legal and constitutional).

(emphasis in original). It would be hard to argue that somebody who places such an emphasis on doing proper research before stating an opinion would not have, himself, properly researched the topic before stating his opinion.

I think the most obvious and likely reasons we have not heard about this--or this kind of--analysis in 2013 and 2014 are as follows: (1) If the public knew that the NSA metadata program was outed in 2006 and received a thorough public analysis and vetting at that time, then stories about it in 2013 and 2014 wouldn't seem so fresh and exciting. (2) The program, overall, didn't violate the Fourth Amendment to the Constitution, and the main statutory defect in the Bush NSA metadata program has been corrected. It's as if the Obama Administration and Congress heard the critiques of Civil Libertarians and the requests of communications carriers and resolved those issues. (3) The embarrassment for Greenwald in having to explain Number Two above, as well as his current goal-post moving. (e.g., In the first paragraph of his blogspot.com posting, Greenwald basically concedes that the NSA metadata program circa 2006 was Constitutional and that there were no Fourth Amendment issues as long as the Government first obtained a court order (which is the practice now)).

As a final note of irony, let's look at one last quote from Greenwald's 2006 blog post about the NSA metadata program:

People who fundamentally change their views on issues this significant all in order to defend a Leader's conduct can be called many things. None of them is flattering.
What if the "Leader" is a meal-ticket named Edward Snowden?

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Comment Preferences

  •  Tip Jar (15+ / 0-)

    My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

    by Tortmaster on Tue Jun 24, 2014 at 08:00:19 PM PDT

  •  This shit again? (18+ / 0-)

    Give it a rest.

    I allow people to change their minds when new information is provided BTW. Apparently you see that as a deficit.

    •  Your mind is closed on this issue. (11+ / 0-)

      That's too bad. You haven't heard the full story. You've been had. Metadata hasn't changed since 1979. It hasn't changed since 2006. It is still the who, when and where of messages, but never the what. Never the content. The only things that have changed since Greenwald's 2006 blogspot.com post are:

      1.  The Obama Administration is getting a court order (Bush didn't);
      2.  The Obama Administration isn't relying on the blunderbuss of Article II to claim the NSA program is Constitutional (Bush did);
      3.  The Obama Administration and Congress implemented strict "minimization procedures" to ensure the anonymity and privacy of US Persons (Bush didn't);
      4.  The Obama Administration created a Privacy and Civil Liberties Protection Oversight Board (Bush wouldn't);
      5.  The Obama Administration crafted enhancements of the Whistleblower Protection Act (Bush didn't); and
      6.  Greenwald's position.  

      My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

      by Tortmaster on Tue Jun 24, 2014 at 08:41:43 PM PDT

      [ Parent ]

      •  Yes it is. (7+ / 0-)

        I find it disturbing how hard posters are shooting the messenger.

        And you say that like it's a bad thing.

        •  When the messengers are lying ... (12+ / 0-)

          ... or hiding basic things about their message, they need to answer hard questions. Are Greenwald and Snowden above answering a few hard questions in your mind?

          Whether the NSA metadata program is Constitutional is a foundational issue. Greenwald and Snowden both made an issue of NSA Director Clapper deceiving Congress. In my opinion, that bit of fabrication on their part was the only reason the story got traction in the first place. Also, Greenwald vetted the program in 2006, found the defects, but those defects have been fixed. Shouldn't he acknowledge that? Snowden and Greenwald have both claimed that (a) Snowden couldn't blow the whistle, and (b) Snowden did blow the whistle (sometimes in the same interview). This has been a long con.

          My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

          by Tortmaster on Tue Jun 24, 2014 at 08:56:58 PM PDT

          [ Parent ]

          •  Bwahahahaha now you sound desperate. (4+ / 0-)
            •  You have yet to ... (8+ / 0-)

              ... state a single issue with the substance of my diary. Am I wrong? Where? How? Please explain. I guess claiming that public figures shouldn't answer questions is a quibble, but nothing more and a bad argument at that.

              My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

              by Tortmaster on Tue Jun 24, 2014 at 09:21:24 PM PDT

              [ Parent ]

              •  the courts were involved in the spying back then (5+ / 0-)

                As you noted in your diary. That isn't what is happening now. And just because a secret court makes up a secret law, doesn't make it Constitunional.
                Gawd, you guys will go to any length to support the unconstitutional spying on Americans.
                You really don't get how how dangerous this can be if they make up shit on you people that don't tho k you have anything to hide.
                If they were spying on terrorists to keep US safe, that would be one thing.
                But they ste spying on US and for what reason?  
                Do you think WE are all terorists?  
                No, they are spying on US to keep the corporations sage.
                Hopefully, one day you will all pull your heads out of the sand.
                But it will probably be too late!  

                "Americans don't understand that terrorists cannot take away habeas corpus, the Bill of Rights, or the Constitution. Terrorists are not anything like the threat that we face from our own government in the name of fighting terrorism."

                by snoopydawg on Tue Jun 24, 2014 at 11:37:17 PM PDT

                [ Parent ]

                •  Apologize for the typos (0+ / 0-)

                  My iPad is acting up.

                  "Americans don't understand that terrorists cannot take away habeas corpus, the Bill of Rights, or the Constitution. Terrorists are not anything like the threat that we face from our own government in the name of fighting terrorism."

                  by snoopydawg on Tue Jun 24, 2014 at 11:38:30 PM PDT

                  [ Parent ]

                •  snoopydawg, I think you got ... (3+ / 0-)
                  Recommended by:
                  Rejoinder, freakofsociety, Shawn87

                  ... this part backwards:

                  the courts were involved in the spying back then [a]s you noted in your diary. That isn't what is happening now.
                  Bush's NSA didn't get a court order to collect metadata. President Obama's NSA did.

                  As for secret laws and secret courts, that has been part of our legal tradition for decade (maybe scores of decades). We close off courtrooms when minors testify and when corporate trade secrets are the subject of testimony. National intelligence secrets should get at least the same treatment as the formula for Coca-Cola.

                  I get how dangerous this stuff "could" be, but I also understand how necessary it is to have an intelligence agency and to keep some secrets. What we are talking about with the "could" and "can be," though is pre-conspiracy theory. There would have to be a future combination of Government officials all decide to break multiple laws and regulations and violate the Constitution, and they would have to evade the three branches of oversight, whistleblowers and the media. Yes, it "could" happen. Bush tried to do it and got caught. A lot of things have changed--for the better--since the Church Committee.

                  I reject your opinion that "they" are "spying" on "us." I think that's anti-Government rhetoric that is wholly unfounded given the year and thousands of documents at the disposal of Greenwald and Snowden. They still haven't provided proof of one intentional violation of the Constitution.

                  (I appreciate the substantive response, and I understand having issues with technology! My giant fingers are too big to text effectively. Ha!).  

                  My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

                  by Tortmaster on Wed Jun 25, 2014 at 12:25:24 AM PDT

                  [ Parent ]

            •  kindly refrain... (3+ / 0-)
              Recommended by:
              Susan G in MN, Tortmaster, Shawn87

              from ad hominems.

          •  It's a basic FACT that Clapper--and many others-- (16+ / 0-)

            ...lied through their teeth to Congress.

            Another basic piece of disinformation that you continually and FALSELY parrot is that everyone on Capitol Hill is privy to all of this information. That's just a boldfaced lie, and you know it.

            According to many courts, it's perfect "legal" and "constitutional" for folks, according to the 2nd Amendment, to carry firearms out in the open, too! Does that make it right?

            And, NEWSFLASH: Marcy Wheeler has been providing EXTENSIVE and INTENSIVELY DOCUMENTED/DETAILED analysis FOR YEARS concerning how the White House, the FBI, and the NSA, among MANY other federal intelligence and law enforcement entities, are SKIRTING constitutional law to do everything "perfectly legally," as far as Orwellian surveillance is concerned, too! WHAT IS YOUR POINT, TORTY? In fact, like so many other matters these days, "THE RULE OF LAW" only applies to the little folks.

            Other than parroting the military-industrial-surveillance state talking points--which are inherently loaded with lies on this subject--who the hell are you kidding? Looks to me like it's a few dozen Kossacks, on a GOOD day.

            "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

            by bobswern on Tue Jun 24, 2014 at 09:07:48 PM PDT

            [ Parent ]

            •  Yeah they lied about a Top Secret program at (4+ / 0-)

              an open hearing.  What did you expect them to do?

              "Because I am a river to my people."

              by lordcopper on Tue Jun 24, 2014 at 09:28:19 PM PDT

              [ Parent ]

              •  I dunno. Tell the truth, perhaps? (11+ / 0-)

                Weren't they under oath?




                Somebody has to do something, and it's just incredibly pathetic that it has to be us. ~ Garcia

                by DeadHead on Tue Jun 24, 2014 at 09:41:16 PM PDT

                [ Parent ]

              •  The canard has not died (13+ / 0-)

                (Excerpted from a response to the previous diary on this subject by this author.)

                This canard really must die.  The notion that the Director of National Intelligence is unable to deflect a question that concerns classified information is absolutely laughable.

                There are a number of answers that General Clapper could have given.  For example, he could have responded in the exact same words that then Attorney General Alberto Gonzales used in 2006 when he was asked an almost identical question:

                "The programs and activities you ask about, to the extent that they exist, would be highly classified."

                That would have been a completely legitimate, legal answer.
                (On this point, see: http://takingnote.blogs.nytimes.com/.... )

                Or he could have said: "Senator, I want to reassure you that we are not engaged in far-ranging surveillance of the American public.  However, your question touches on issues concerning our technological capabilities, and I would prefer to give you a more detailed response in a closed session."

                That would have worked perfectly fine as well.

                You appear to anticipate this reaction when you write that, "If he said that he could only respond during a closed-door session, then the next day's headlines in The New York Times would have been about the NSA spying on millions of Americans."

                Yes, that is correct.  If DNI Clapper had been unable to explicitly deny that the NSA was collecting information on millions of Americans, that fact would have been noted in the news media.  Then we could have had a discussion of the implications of this statement.  That discussion may have led to further investigations.  Those investigations may have led to Congressional action preventing the NSA from collecting data on millions of Americans.  That would be great.  That is precisely how the system is supposed to work.  

                •  What you are doing ... (3+ / 0-)
                  Recommended by:
                  Rejoinder, lordcopper, freakofsociety

                  ... is placing all of your weight on a perjury statute (that don't apply) and completely ignoring every statute that makes it a felony to disclose national secrets (which do apply). Nobody is asked to shed a tear for NSA Director Clapper. On the other hand, completely ignoring one full side of the equation is no way to understand the situation.

                  My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

                  by Tortmaster on Wed Jun 25, 2014 at 01:43:28 AM PDT

                  [ Parent ]

                  •  Should read: "doesn't" (0+ / 0-)

                    My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

                    by Tortmaster on Wed Jun 25, 2014 at 01:44:21 AM PDT

                    [ Parent ]

                  •  I wasn't addresing perjury (9+ / 0-)

                    I was addressing his blatant lie-- a lie that he told not only to the Intelligence Committee, which everyone understands knew the correct response to that question, but also to the American people-- and the ridiculous notion that there was no way for General Clapper to avoid answering that question.  This argument is absurd.

                    Whether or not there is a winnable case against General Clapper for perjury is another matter.  I am not familiar enough with the case law to offer an informed judgement on this question.

                    •  You claim to have read ... (1+ / 0-)
                      Recommended by:
                      Rejoinder

                      ... my previous diary on that subject, "The 18 Biggest Myths of the Snowden Saga," so why do you claim that there might be "a winnable case against General Clapper for perjury"? The "materiality" requirement of the Federal Perjury statute obviously kicks in, and there is no case against Clapper. So, why the obfuscation?

                      I am glad to see that you've at least tried on Clapper's shoes and taken a few steps. It is easy to Monday morning quarterback, but are you that good under pressure? Facing an ambush? Getting hit on national TV with a Catch-22 question? In my opinion, the only way out of that situation without screaming headlines in the next day's Washington Post was to feign a heart attack, but that might have been a fraud on the committee.

                      I think most people are reasonable enough to understand that the nation must keep some secrets, and that the Director of National Security should try his best to keep them.

                      My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

                      by Tortmaster on Wed Jun 25, 2014 at 02:41:25 AM PDT

                      [ Parent ]

                      •  Not the slam dunk you think it is (4+ / 0-)
                        You claim to have read my previous diary on that subject, "The 18 Biggest Myths of the Snowden Saga," so why do you claim that there might be "a winnable case against General Clapper for perjury"? The "materiality" requirement of the Federal Perjury statute obviously kicks in, and there is no case against Clapper. So, why the obfuscation?
                        In discussions like these it's extremely important that we distinguish between known facts and debatable propositions.  Your interpretation of the materiality requirement is a debatable proposition. Materiality is the vaguest and most hotly-contested element of perjury.  Not surprisingly, there is a great deal of debate as to what statements are "material to the proceedings."

                        I won't go into any great detail.  This link, however, should at least convince you that this may be slightly more complicated than you realize.

                        http://www.justice.gov/...

                        So there might, in fact, be a winning case against General Clapper. I stand by that claim.

                        In my opinion, the only way out of that situation without screaming headlines in the next day's Washington Post was to feign a heart attack... I think most people are reasonable enough to understand that the nation must keep some secrets, and that the Director of National Security should try his best to keep them.
                        Sure.  Let's take two things that almost everyone agrees the government should keep secret: 1) nuclear launch codes; 2) imminent troop movements (obviously there are other ones as well).

                        Now imagine these two interactions:

                        Wyden: General, can you please tell me the nuclear launch codes?
                        Clapper: Absolutely not.
                        Wyden: General, can you tell me the current latitude and longitude of Seal Team 6?
                        Clapper: Absolutely not.
                        Now tell me this: would these refusals to answer a question have been printed in the Washington Post?

                         Of course not.  Everyone understands that these are legitimate secrets that no official would divulge in public.  There's almost universal agreement on that point.

                        Now imagine that Clapper had refused to answer Wyden's actual question.  Would the fact that the DNI refused to deny collecting data on millions of Americans get the attention of the press? I should certainly hope so.  Because those sorts of activities-- along with the twisted, secret legal interpretations that have sanctioned them-- are not the sort of thing that we all agree ought to be kept secret  

                •  Why would a responsible legislator even ask the (0+ / 0-)

                  question in open session.  What was the point, if as you say, the DNI was supposed to "deflect" the question?  

                  "Because I am a river to my people."

                  by lordcopper on Wed Jun 25, 2014 at 06:42:59 AM PDT

                  [ Parent ]

            •  By now, bobswern, you must ... (3+ / 0-)
              Recommended by:
              mikeVA, Rejoinder, Shawn87

              ... realize I have the goods. I always have the goods! This is from my diary "The 18 Biggest Myths of the Snowden Saga":


              MYTH:  NSA Director James Clapper deceived Congress on March 12, 2013 during testimony before the Senate Intelligence Committee and Senator Ron Wyden.

              FACT:  Every Senator in that room, and, in fact, every Senator and Congressman and Congresswoman in Washington, D.C., no matter how junior, knew about the NSA metadata program. The NSA delivered packets about the program to each one of them. (Source: Senator Ron Wyden).

              DISCUSSION:  Senator Ron Wyden asked Director James Clapper the spy version of the "when did you stop beating your wife" question on national tv (CSPAN). No response, short of a feigned heart attack, was correct, and even that would have been a fraud upon the committee. Senator Wyden asked his question in such a way as to demand a "yes" or "no" answer. If the Director had responded with a "yes," he would have violated his sworn duty as NSA Director. If he said that he could only respond during a closed-door session, then the next day's headlines in The New York Times would have been about the NSA spying on millions of Americans. As Director of the NSA, Clapper was sworn to keep secrets. He chose his duty as Director of the NSA over his duty as a witness before Congress. He chose wisely.

              Moreover, as noted above, every Congresswoman, Congressman and Senator in Washington, including Senator Wyden and the others attending that hearing knew the answer to that question. As noted below, even Daniel Ellsberg admits that the country must keep secrets. If the country must keep secrets, then those gatekeepers must be exceedingly reticent to give them up. Put yourself in Clapper's shoes and walk around a bit: Would you have divulged Top Secret information knowing that the person asking the question, as well as everyone else on that panel, already knew the answer to it?

              "[A]s Congress required, the Executive Branch fully and repeatedly briefed the Intelligence and Judiciary Committees of both Houses about the program and timely provided copies of the relevant classified documents to the Committees. Moreover, the Executive Branch undertook special efforts to ensure that all Members of Congress had access to information regarding this classified program prior to the USA PATRIOT Act's reauthorization in 2011, including making a detailed classified white paper available to all Members. Specifically, in December 2009, the Department of Justice and the Intelligence Community provided a classified briefing paper to the Senate and House Intelligence Committees that could be made available to all Members of Congress regarding the telephony metadata program. Both Intelligence Committees made this document available to all Members prior to the February 2010 reauthorization of Section 215. That briefing paper was then updated and provided to the Senate and House Intelligence Committees again in February 2011 for all Members in connection with the reauthorization that occurred later that year."
              (emphasis added). In the very Snowden-friendly Vanity Fair article, the journalists wrote the following without citation or quotation marks or mentioning a source: "But for anyone from the intelligence community to even acknowledge the existence of a classified document may be a crime." This, of course, is exceedingly obvious, but it is one of those exceedingly obvious things that anti-NSA types conveniently forget. Interestingly enough, that statement was made for another purpose other than to discuss NSA Director James Clapper. That same statement was not mentioned when the article's subject was Director Clapper. Ironically, when people assert that Clapper would be fired but the law doesn't apply to the ruling class, they ignore the impact of this law on Clapper.

              Besides having a nearly ironclad justification defense for what he did, Clapper also did not commit perjury according to Federal perjury law. "Clapper is guilty of perjury and should rot in prison for lying" is a common refrain on the internet. It is another myth. Let's see how perjury before a legislative body is handled in the Federal system:

              "[C]ourts generally favor the encapsulation from United States v. Dunnigan to describe the elements of perjury in other contexts under Section 1621: 'A witness testifying under oath or affirmation violates this section if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.'"
              As you can see, under § 1621, it sure looks like NSA Director James Clapper is guilty of perjury with his testimony to the Senate Intelligence Committe. But that's not true. The section specifically requires that the false testimony be "concerning a material matter." The test used by Federal courts for "materiality" under § 1621 is whether the false assertion “has a natural tendency to influence or [is] capable of influencing the decision-making body to which it [is] addressed.” Id. (citations omitted). As you know, all the Members on that panel of the Senate Intelligence Committee knew what the NSA metadata program did, so Clapper's testimony had no chance of influencing the decision-making body as they had already been briefed on the program multiple times. [Interestingly enough, if there was a case against Director Clapper, the case against Senator Ron Wyden for Subornation of Perjury (18 U.S.C. § 1622) would be just as good. But, as noted above, there's no case against Clapper, and because of that, there's no case against Wyden.]


              My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

              by Tortmaster on Tue Jun 24, 2014 at 09:29:56 PM PDT

              [ Parent ]

              •  It's simply not believable ... (0+ / 0-)

                that Congress has been "fully" briefed on NSA activities.  In fact, we know beyond doubt that that has not occurred.

                Nor would it seem to be a legitimate defense to, essentially, claim that a witness may lawfully proffer perjured testimony without consequence if Congress is already fully aware of the facts.  It's being argued that Clapper's position is: "I lied because I had to, and that's okay because Congress knew the truth anyway."  However, Congress represents The People, and CSPAN broadcast his testimony to The People, ergo Clapper lied to The People, which is inexcusable behavior.

                "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

                by Neuroptimalian on Wed Jun 25, 2014 at 10:11:47 AM PDT

                [ Parent ]

      •  I appreciate all the work in your diaries. nt (7+ / 0-)
      •  And what did the PCLOB say? (6+ / 0-)
        "4.  The Obama Administration created a Privacy and Civil Liberties Protection Oversight Board (Bush wouldn't)"
        That's nice.  And the PCLOB issued a report. Have you read it? It discusses a host of very serious statutory and constitutional issues with bulk collection.
        •  Yes. I have read it. (3+ / 0-)
          Recommended by:
          Rejoinder, JoanMar, Shawn87

          Now, what do you think of 2006-Greenwald basically conceding that the NSA metadata program is Constitutional because of the Smith case as long as the NSA got a court order? I agree with 2006-Greenwald!

          The Privacy and Civil Liberties Oversight Board is one side of the equation. They will necessarily come down on the side of privacy. That's their job. They are not charged with balancing between the state's interest and the individual's rights. That's why we have the courts.

          The Government doesn't need anything other than a court order to obtain metadata. They don't need a warrant, don't need permission or even a a fine howdy-doo to collect metadata of even a known, identified person based on the Smith v. Maryland holding. The NSA certainly didn't need an Act of Congress. It's not even a search! Plus, there's no expectation of privacy under Smith or Katz to that data.

          This is like saying NSA agents cannot travel across the country while working for the NSA because Congress doesn't specifically allow for them, by statute, to do it. Or eat. Or vote. Or look at public Facebook pages.  

          As for the PCLOB's statutory construction arguments, the Supreme Court has a long line of cases in which federal agency interpretation of their governing statutes is given quite a bit of deference. That's another reason why there has not been, or will be, a finding of illegality based on 215. See, e.g., Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

          My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

          by Tortmaster on Wed Jun 25, 2014 at 01:35:32 AM PDT

          [ Parent ]

          •  That's not what Greenwald said (7+ / 0-)
            Now, what do you think of 2006-Greenwald basically conceding that the NSA metadata program is Constitutional because of the Smith case as long as the NSA got a court order?
            Are you under the impression that when Greenwald alluded to the requirement to secure a court order he meant that he would approve of any order issued by any court based on any logic, no matter how absurd?
            •  Why do you have to ... (3+ / 0-)
              Recommended by:
              Rejoinder, JoanMar, Shawn87

              ... assume that a court order was "absurd"? Read the very first paragraph of 2006-Greenwald's blog post. If that isn't an implicit concession that the NSA metadata program would be Constitutional under Smith v. Maryland with a court order, then I'm Edward Snowden. By the way, all the court order has to say is:

              To: Verizon
              Pursuant to Section 215, we are requesting the following business records ______ for the reasons stated in said statute.
              /s Deputy Atty Generl
              /s FISA Judge
              I don't know how absurd one could make that. By the way, I have subpoenaed "metadata" (i.e. telephone records) many, many times, and until the last ten years or so, all I needed was a pre-stamped (not even signed) subpoena form from the courthouse. Now the telephone companies want the thing signed by the Circuit Clerk (and sometimes even a Judge-making it a true court order). Of course, I have to pay the telephone companies a few bucks for getting and copying and sending the records. Same as the United States Government.

              You should be asking these questions of 2006-Greenwald. Or, better yet, 2013-Greenwald or 2014-Greenwald. I do appreciate your substative comments and incisive questions. By far, the hardest questions I've faced. (Greenwald needs to face some of these).

              My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

              by Tortmaster on Wed Jun 25, 2014 at 03:06:00 AM PDT

              [ Parent ]

              •  You misread me (7+ / 0-)

                I didn't say that the court order itself was absurd.  I said that the logic on which it was based is absurd.  And it is.  Congress quite clearly gave the FBI the power to collect business records that are relevant to an authorized investigation.

                The notion that this authorized the NSA to collect records indiscriminately on the basis that all records are relevant is indeed absurd.  (I can't find the link, but I remember someone pointing out that the government had to cite the third definition of "relevant" from  a British dictionary from the 80s, since no other definition supported their interpretation.)  

                What's more. It renders other sections of the law that establish limitations on this collection meaningless; the law as a whole makes no sense if we make the ridiculous assumption that Congress authorized the collection of everyone's telephony metadata.

                Again, the PCLOB report is quite good on this.  I've yet to see you actually respond to the arguments they've made, by the way.  I'm not interested in your take on the group or its function-- just what they have to say.

        •  Rec'd for substance. (0+ / 0-)

          Maya Angelou: “There's a world of difference between truth and facts. Facts can obscure truth.”

          by JoanMar on Wed Jun 25, 2014 at 10:22:39 AM PDT

          [ Parent ]

    •  Smith v. Maryland has been discussed extensively.. (19+ / 0-)

      ...by Greenwald over the years. For this diarist to continually, flat-out DECEIVE the audience--and then to receive rec's for twisting these truths and outright deceiving others in this community--is just shameful.  Readers: Do a search on Google using the words "Greenwald" and "Smith v. Maryland" and verify my statement of fact for yourself!

      In our society, lots of things that should NOT be "perfectly legal" are--until they're NOT. And, lots of things that are ILLEGAL are allowed to flourish because that's the way this country rolls.

      The very concept of repeating half-truths, lies and misstatements so many times until they're perceived as fact--albeit by only a handful of misbegotten souls in this community--is the very mantle upon which this diarist hangs their hat.

      Let the Diary Rec's BEGIN!

      "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

      by bobswern on Tue Jun 24, 2014 at 08:43:30 PM PDT

      [ Parent ]

      •  Gee who does that? (7+ / 0-)
        The very concept of repeating half-truths, lies and misstatements so many times until they're perceived as fact
        Seems very familiar to me for some reason.
      •  You are positing that Tortmaster's diaries (10+ / 0-)

        are being offered in bad faith; that he's lying and deliberately setting out to deceive the community. That's an extraordinary claim, bobswern.
        Objective observers can see that TM has presented facts to support every claim he's made. In addition, he's presented the facts, as he sees them, in a manner devoid of insults and malice; why don't you meet him on that plane?
        You are both passionate about your side of the issue, treat us to a debate on the substance. I don't really care for GG and this issue is nowhere near the  top of my list of priorities, but I love debates. If this issue is as important as you claim it to be, then it deserves to be treated as such. Let's have a serious, respectful debate.
        Can you do that?

        Maya Angelou: “There's a world of difference between truth and facts. Facts can obscure truth.”

        by JoanMar on Tue Jun 24, 2014 at 09:07:14 PM PDT

        [ Parent ]

        •  Thanks, JoanMar. I will wait ... (4+ / 0-)
          Recommended by:
          JoanMar, kalmoth, Rejoinder, Shawn87

          ... patiently for anyone to raise an issue with the facts shown in my diary. The facts are:

          (a) Greenwald vetted the NSA metadata program in 2006;
          (b) Greenwald highlighted multiple statutory and constitutional problems with the program that existed at that time;
          (c) Those defects have since been remedied;
          (d) Greenwald has never acknowledged a-c above since Snowden left for Hong Kong.

          Notice how all the comments avoid those claims like the plague! Thanks, JoanMar!

          My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

          by Tortmaster on Tue Jun 24, 2014 at 09:36:12 PM PDT

          [ Parent ]

          •  I won't avoid these claims (9+ / 0-)

            1. (a) Greenwald vetted the NSA metadata program in 2006

            If by "vetted" you meant he wrote a number of commentaries on it, then fine.

            (b) Greenwald highlighted multiple statutory and constitutional problems with the program that existed at that time;

            True.

            (c) Those defects have since been remedied;

            False.  Many of those "defects" have been "remedied" by not only legalizing previously forbidden activities, but also by granting retroactive immunity to those who broke the original laws.

            More importantly, new concerns have arisen.

            You seem to believe that because Greenwald stressed the importance of court orders in 2006 that he couldn't possibly have a problem with an approach that utilizes court orders.  

            But this completely misses the point. The issue that we're dealing with now concerns the nature of those court orders and the (until recently) secret justification behind them.  You really, really should read the PCLOB report, since it spells it out quite clearly, but I'll put it briefly: the law gave the FBI the authority to acquire business records that are relevant to an authorized investigation.

            What ended up happening is that a different agency that is not empowered by the law to collect such records began to attempt to collect them all based on the absurd claim that "relevant" means "everything."

            These are clear statutory issues raised by current law and current practice. No argument can be made that Greenwald discussed these issues in 2006 since they were not yet known.

            None of this has anything to do with the constitutionality, an area that Greenwald has not discussed in great detail.

            •  In the most appropriate, high-minded and non- (2+ / 0-)
              Recommended by:
              DeadHead, orestes1963

              creepy was possible...I Love You!  Welcome aboard (ish).

              TM has been spinning his...pov with lots of legalish weed-diving for a long time.

              It is draining to repeatedly separate fact from opinion and spin to address the outright criminality, intentional rule-bending and disgusting retro-approval of these programs.  Good to see you have the energy and the chops to assist us   :o)

              So #notallwomen is cool here. Who knew? Ahh, the New Big Tent...

              by JVolvo on Wed Jun 25, 2014 at 08:52:02 AM PDT

              [ Parent ]

        •  Well... (11+ / 0-)

          The community doesn't seem to be buying what he's selling.

          I wonder why that is?

          Perhaps it's a "third time's a charm" issue.

          Or, more likely, he's based much of his surveillance apologia on Smith v. Maryland, had it dismissed for the pro-surveillance propaganda that it is on numerous occasions, and people aren't wanting to have a "debate," over and over, about something that they know is happening and is WRONG.




          Somebody has to do something, and it's just incredibly pathetic that it has to be us. ~ Garcia

          by DeadHead on Tue Jun 24, 2014 at 10:16:37 PM PDT

          [ Parent ]

          •  "I wonder why that is?" (1+ / 0-)
            Recommended by:
            JoanMar

            Probably because people here are so spun up on this damn issue that they simply REFUSE to question both the differences in policy and execution between Obama and Bush 43, as well as Greenwald's self-serving motivations and ignorance of his own prior work that contradicts what he is now saying.

            In other words, they're letting emotion rule over logic & reason.

            •  Do you think this diary (1+ / 0-)
              Recommended by:
              Horace Boothroyd III

              applies logic and sound reasoning?

              •  Yes. (1+ / 0-)
                Recommended by:
                Rejoinder

                While the opposing side seems to be relying on ridicule, snark, and argumentum ad hominem.

                Maya Angelou: “There's a world of difference between truth and facts. Facts can obscure truth.”

                by JoanMar on Wed Jun 25, 2014 at 09:08:09 AM PDT

                [ Parent ]

                •  Thanks. That's informative. (0+ / 0-)

                  I suggest you educate yourself about the relevant decisions because that will give you a better understanding of the diarist's faulty reasoning.  

                  •  And I suggest that you debate the diarist (0+ / 0-)

                    about the issues and demonstrate conclusively that he's employing faulty reasoning, rather that attack his character for daring to disagree with you and GG.
                    I don't need to "educate" myself "about the relevant decisions" because this issue is not on my list of priorities.
                    I am, however, interested in how we conduct debates on this site.

                    Maya Angelou: “There's a world of difference between truth and facts. Facts can obscure truth.”

                    by JoanMar on Wed Jun 25, 2014 at 10:44:23 AM PDT

                    [ Parent ]

                    •  I have tried to do that (0+ / 0-)

                      and have not attacked the diarist's character in any way.  Please feel free to prove me wrong.  Apparently, you do not understand the difference between attacking faulty reasoning and attacking a person.  This may explain your embrace of the diarist's reasoning.

                      I appreciate the honesty of your Luddite position- no need to educate oneself about an issue that is not a personal priority.  I operate from the perspective that the accretion of any knowledge is a good thing.  

                      •  My "Luddite position." ::Chuckles:: (0+ / 0-)

                        We have said it so many times before, and it seems that it has to be said yet again: I do not give a flying fuck about the issue.
                        I come from a people for whom the German Shepherd was imported. I come from a people who had to use the drum and quilts to communicate. I come from a people who knew that they were always being watched and that one wrong word said to the wrong person could result in their dead bodies decorating some tree with bits and pieces of them ending up on some 'civilized" person's mantelpiece.
                        Don't you dare to tell me what I should educate myself about.

                        Maya Angelou: “There's a world of difference between truth and facts. Facts can obscure truth.”

                        by JoanMar on Wed Jun 25, 2014 at 11:24:27 AM PDT

                        [ Parent ]

                        •  Typical (0+ / 0-)

                          You accuse me of attacking the diarist's character, cannot defend it, so you try to create a self-aggrandizing smoke screen.  A wiser person would withhold commenting on a subject about which they have no knowledge and vehemently have no desire to educate herself about.  

                          •  Look man, you have absolutely no say (0+ / 0-)

                            in what I choose to comment on. None.
                            It has been three years and ten months since I left my husband, and even before then he couldn't tell me what to do.
                            The absolute gall.

                            Maya Angelou: “There's a world of difference between truth and facts. Facts can obscure truth.”

                            by JoanMar on Wed Jun 25, 2014 at 05:50:17 PM PDT

                            [ Parent ]

              •  Absolutely. (1+ / 0-)
                Recommended by:
                JoanMar

                The diarist presents his arguments in a clear, well-informed manner with evidence, quotes and sourcing to back up his points.  Even to someone who might be uninformed to the subject, its players and the two sides of debate can see that.

                •  Er, no (0+ / 0-)

                  The diarist's argument is based upon unproven (at best) assumptions.  Assumptions that are asserted as truth, but never supported when challenged.  The most glaring example of this is the repeated claim that the collection of all metadata is constitutional under Smith in the face of the Davis decision, in which a federal appeals court found that Smith neither controls nor informs the determination whether cell phone tracking data can be mined absent a warrant.  Do you think it's sound reasoning to merely ignore the decision of a federal appeals court because it contravenes one's assumptions?  For me, sound reasoning requires reconciliation of that decision with one's assumptions.  

                  Accordingly I would take great exception to the notion that the diarist is well-informed, if nothing else.

      •  I hope you can explain, ... (4+ / 0-)
        Recommended by:
        JoanMar, lordcopper, kalmoth, Rejoinder

        ... bobswern, why Greenwald never mentioned the Smith v. Maryland case in all of his many articles at The Guardian from June 2013 to the present and all of his blogs at TheIntercept from its inception. Amazing that he hasn't mentioned the Roe v. Wade of metadata cases in all that time!

        I would personally challenge you, bobswern, to show me where Greenwald has written about Smith since Snowden took off for Hong Kong.

        My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

        by Tortmaster on Tue Jun 24, 2014 at 09:07:57 PM PDT

        [ Parent ]

        •  You're on record making the statement... (9+ / 0-)

          ...without regard to time frame. More semantics and game-playing? That's all you've got. The game's over.

          Frankly, I had spent an extensive amount of time writing a post in response to your recent, outrageously deceptive pieces on this issue, and then I stopped cold on that (I draft many pieces that never get published, for a variety of reasons) effort, because it wasn't worth the time that I had invested and would continue to invest into that matter since it only added credibility to your propaganda by taking the time and effort to respond to it.

          Even now, I'm wasting waaay too much time in the comments to this post, so this'll be my last comment.

          Have a GREAT evening.

          The truths on these matters, contrary to your constant propaganda stream on this topic, are readily available online for those that wish to continue to waste their time on this pointless effort.

          I regret having even wasted the time--but, I did make a couple of completely valid points that undermine a LARGE PORTION of your so-called "arguments" in those few comments to this post, tonight, too.

          Sincerely!

          "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

          by bobswern on Tue Jun 24, 2014 at 09:27:53 PM PDT

          [ Parent ]

      •  Here's a link to Greenwald and Smith v. Maryland.. (6+ / 0-)

        ...Google search results from May 1, 2013 through today.

        "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

        by bobswern on Tue Jun 24, 2014 at 09:50:37 PM PDT

        [ Parent ]

        •  I see a bunch of my diaries! (0+ / 0-)

          Awesome.

          My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

          by Tortmaster on Tue Jun 24, 2014 at 10:47:31 PM PDT

          [ Parent ]

          •  I see a "bunch" of times when Greenwald... (6+ / 0-)

            ...was involved in public discussions covering Smith v. Maryland, during that same time period in which that "bunch" of your misdirecting/erroneous diaries deceptively claimed did NOT occur! That's not "awesome," it's just shameful, Tortmaster. But, as usual, you act, even NOW, like these inconvenient facts--which discredit much of your entire line of propaganda about Greenwald--aren't there!

            "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

            by bobswern on Tue Jun 24, 2014 at 11:05:13 PM PDT

            [ Parent ]

            •  Oh, you mean somebody ... (1+ / 0-)
              Recommended by:
              Rejoinder

              ... brought up the Smith v. Maryland case in a debate? Was it Greenwald?

              I appreciate knowing that somebody has challenged him about that case. It would be cool if Greenwald would come clean about his 2006 blog. Also, he could write about the Smith case, which is, after all, the Roe v. Wade of metadata cases.

              My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

              by Tortmaster on Tue Jun 24, 2014 at 11:32:10 PM PDT

              [ Parent ]

          •  Exactly. (3+ / 0-)
            Recommended by:
            kharma, cybrestrike, ozsea1

            You're the only one on the whole internet talking about this.

            Fear not, Exclusive Scoop of the Century will be national news, soon.

            Give it time.




            Somebody has to do something, and it's just incredibly pathetic that it has to be us. ~ Garcia

            by DeadHead on Tue Jun 24, 2014 at 11:07:12 PM PDT

            [ Parent ]

      •  Careful Bob, this guy's minions will hit-rate you. (0+ / 0-)

        Please stop talking common sense Sir. ;)

    •  Careful, his minions will hit-rate you. (1+ / 0-)
      Recommended by:
      Horace Boothroyd III
  •  Encore! Encore! (12+ / 0-)

    Apparently your first attempt fell a bit short of going "viral."

    Maybe this time you'll have better luck.




    Somebody has to do something, and it's just incredibly pathetic that it has to be us. ~ Garcia

    by DeadHead on Tue Jun 24, 2014 at 08:23:20 PM PDT

  •  TFS; DR (again) (9+ / 0-)

    So #notallwomen is cool here. Who knew? Ahh, the New Big Tent...

    by JVolvo on Tue Jun 24, 2014 at 08:25:21 PM PDT

  •  Next up: Tortmaster presents Rock Crusher (10+ / 0-)

    Exclusive!!@  (Repost)

    So #notallwomen is cool here. Who knew? Ahh, the New Big Tent...

    by JVolvo on Tue Jun 24, 2014 at 08:26:44 PM PDT

    •  Three comments on my postings ... (4+ / 0-)

      ... so far and not a single substantive quibble with the thesis of my diary. Now that I've taken the time to respond to your silliness, perhaps you would return the favor with short responses to these on-topic questions:

      Did you read Greenwald's latest book?

      Did he mention the Smith v. Maryland case anywhere in it?

      Did he note that NSA Director Clapper, during his March 2013 testimony, did not decieve Congress?

      Did Greenwald discuss how he thoroughly vetted the NSA metadata program in 2006?

      Did he note that the defects, which he pointed out in 2006, were remedied?

      Did Greenwald explain why he thought it was a travesty for President Bush to not obtain a court order for the collection of metadata and a travesty for President Obama to obtain a court order for the collection of metadata?

      Does he mention "Mail Covers" in his book?

      My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

      by Tortmaster on Tue Jun 24, 2014 at 08:46:38 PM PDT

      [ Parent ]

      •  Please see the comments that eviscerated (15+ / 0-)

        your position in the original diary.

        No need to retype them.

        God, still with the 1979-technology pen register sham?

        Basta.

        So #notallwomen is cool here. Who knew? Ahh, the New Big Tent...

        by JVolvo on Tue Jun 24, 2014 at 08:57:52 PM PDT

        [ Parent ]

      •  deceive, not decieve / (1+ / 0-)
        Recommended by:
        kharma
      •  Answers to your question (8+ / 0-)

        Did you read Greenwald's latest book?

        Yeah.

        Did he mention the Smith v. Maryland case anywhere in it?

        Nope.  That might be because he doesn't discuss the constitutionality of the programs in any detail in the book.


        Did he note that NSA Director Clapper, during his March 2013 testimony, did not decieve [sic] Congress?

        No.  He notes that Clapper lied to Congress.  Which is exactly what he did.  

        Here is the only passage in the book that mentions this incident:

        "Even more significant, the files— along with the Verizon document— proved that the Obama administration’s senior national security official, Director of National Intelligence James Clapper, lied to Congress when, on March 12, 2013, he was asked by Senator Ron Wyden: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper’s reply was as succinct as it was dishonest: “No, sir.”
        (Kindle Locations 535-539).

        Did Greenwald discuss how he thoroughly vetted the NSA metadata program in 2006?

        He mentions in the book that  that he had written extensively on Bush era abuses.  That's true.  He doesn't discuss  "thoroughly vetting the NSA metadata program" or its constitutionality.

        What he says about that program in no sense indicates that he believes that any order presented by any court based on any absurd interpretation of the law  renders any action constitutional.

        Did he note that the defects, which he pointed out in 2006, were remedied?

        He discusses the relevant legislative history.  He does not endorse the notion that all of the defects had been remedied, since this is not some sort of universally acknowledged fact, but merely your very controversial--  and in my view very dense-- reading of the situation.  

        Did Greenwald explain why he thought it was a travesty for President Bush to not obtain a court order for the collection of metadata and a travesty for President Obama to obtain a court order for the collection of metadata?

        Did he  anticipate that you would criticize him based on a stilted reading of his position and preemptively respond to your criticism  in his book?  No, he did not.

        Does he mention "Mail Covers" in his book?

        Nope.  Want me to to tell you all the other things he doesn't mention?

        Did you read Greenwald's latest book?

        Yeah.  Did you?

  •  Telephone metadata is... (15+ / 0-)

    just a telephone number and another telephone number.

    E-mail metadata includes a subject line in addition to two IP addresses and to email addresses and a bunch of other stuff.

    Web URL metadata often has titles and summaries of web pages.

    Smith v. Maryland said that two phone numbers associated with specific people could be obtained without a warrant.  Say 202-444-1212 and 312-555-3434. And that information then could be used to get a warrant for other information through a wiretap of one specific person.

    What NSA is doing is hoovering up everybodiy's phone number connections, everybody's email metadata, and everybody's website usage without a warrant and without probable cause.  A prima facie reading of the Fourth Amendment says that that is unconstitutional.  And then they are storing them for future searches of data based on unknown patterns of what they call "selectors".  And using big data correlation methods to do their searches, which is fine for market trends but lousy for law enforcement.  A correlation in and of itself does not constitute evidence.  But it is clear that the NSA and law enforcement are treating it that way.  How else do Quakers and other advocates of peace get on no-fly lists?

    I'm sure that NSA apologists would like for this issue to go away, but it is a huge breach of the Bill of Rights.

    Smith v. Maryland does not authorize mass surveillance of everybody, even as metadata.

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

    by TarheelDem on Tue Jun 24, 2014 at 09:20:00 PM PDT

    •  Thanks for the substantive response, ... (2+ / 0-)
      Recommended by:
      kalmoth, Rejoinder

      ... TarheelDem! I disagree, as the Smith case allowed the Government to collect telephone metadata on even known, identified individuals that the police were currently investigating.

      Moreover, and most importantly, the privacy test set out in Smith and in Katz applies the same whether it is one set of data or millions of sets of metadata. You, me and a million people do not have a "reasonable expectation of privacy" to the telephone company's telephone bill. (Also, it is information that all of us give voluntarily to a third party--the telephone company.)

      But here's the gravamen of the case: You need to make that same argument to 2006-Greenwald because he seemed to accept the constitutionality of the program (and deferred to the Law Professor Orin Kerr). Is 2006-Greenwald wrong, but 2013-Greenwald right?

      My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

      by Tortmaster on Tue Jun 24, 2014 at 10:27:38 PM PDT

      [ Parent ]

      •  How do you feel about the fact (4+ / 0-)
        Recommended by:
        Tortmaster, DeadHead, kharma, JVolvo

        That a cop can stand outside an apartment building with his spy machine, and collect all the phone calls and contacts of anyone's phone even if it isn't on and they don't have a warrant to do that?  

        "Americans don't understand that terrorists cannot take away habeas corpus, the Bill of Rights, or the Constitution. Terrorists are not anything like the threat that we face from our own government in the name of fighting terrorism."

        by snoopydawg on Tue Jun 24, 2014 at 11:50:31 PM PDT

        [ Parent ]

        •  I would think that that cop ... (0+ / 0-)

          ... is violating the hell out of the Constitution. That's content, and you have to have a warrant for that kind of thing.

          But, there are different rules for different things. In my opinion, the collection of anonymous metadata isn't even a search under the Fourth Amendment. This is the information the Government gets from the anonymous telephone metadata:

          nsa6


          Is that even a search? I don't think so.

          My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

          by Tortmaster on Wed Jun 25, 2014 at 12:35:24 AM PDT

          [ Parent ]

          •  Cell phone and internet metadata (2+ / 0-)
            Recommended by:
            JVolvo, orestes1963

            Are not completely anonymous like a 10-digit phone number is.

            It is the mass surveillance that is the major issue.   It is like a cop doing a Smith wiretap on and entire city as a fishing expedition, storing that data for reference, and then using it to look up particular numbers.  Smith v. Maryland never authorized that.

            There are also some Third Amendment issues related to privacy and the use of the military that are unsettled.

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

            by TarheelDem on Wed Jun 25, 2014 at 08:10:50 AM PDT

            [ Parent ]

      •  Here you go again (8+ / 0-)

        with the specious claim that Smith covers all metadata.  As I asked you to explain in the last posting, how do you reconcile your view with the recent Davis court's statement that it was addressing a question of first impression when determining whether cell phone tracking data can be obtained without a warrant?  

        Perhaps this time you'll attempt a response?

        •  I responded to that question ... (0+ / 0-)

          ... in the last diary. The case really doesn't apply, but here goes:

          The Davis court actually discussed the Smith v. Maryland case in two ways that seem to have evaded your understanding.

          (1) The Davis court cited Smith v. Maryland with approval, as good, current and settled law. (That defeats your overall argument); and

          (2) The Davis court distinguished Smith v. Maryland because it doesn't apply to a situation involving cell tower tracking. (And that defeats your argument here).

          The difference between cell tower location information and telephone metadata is huge when it comes to the Fourth Amendment. You can understand it better, I think, if I provide a visual cue. In the Davis case, the Government already knew who their suspect was, Mr. Quartavius Davis. With the cell tower location information, they had this kind of search going on:

          nsa10


          Now, compare that to the anonymous information that the Government gets from the telephone metadata program:

          nsa6


          In my mind, one of those is a search and the other doesn't even fit the definition of "search."

          The much, much more analogous cases--besides the United States Supreme Court decision in Smith v. Maryland that is directly on point--involve "Mail Covers." I am going to do a diary that touches on that subject later tonight.

          My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

          by Tortmaster on Wed Jun 25, 2014 at 12:56:57 AM PDT

          [ Parent ]

          •  Huh? (3+ / 0-)
            Recommended by:
            JVolvo, Demeter Rising, DeadHead

            On what basis does Davis not apply to metadata collection?  You throw out these ridiculous statements, but never provide any rational basis for them.  

            Your claims (1) and (2) are pointless.  First, I never stated that Smith was not good law.  I challenged your reading of the case in light of the Davis decision.  The Davis court determined that Smith does not control on cell phone tracking data, which is part of the NSA data collection program.  (Smith dealt with pen registers.)  The fact that Smith is good law (which is not in dispute) does not bolster your reading of the law as controlling on the entire NSA data collection program, especially in light of the Davis court's ruling that a warrant is necessary to obtain cell phone tracking data.    

            You appear to take the irrational view that Smith controls everything until the courts specifically exclude every relevant component of the NSA data mining program.  That is specious reasoning.  The Davis court's determination that Smith does not apply to cell-phone tracking data completely undermines your contention that Smith renders the entire program constitutional.  

            In legal reasoning, your personal beliefs ("in my mind") are irrelevant.  What matters are the decisions and the guidance they provide.  The Davis court flatly rejected the notion that Smith controls all metadata collection.  You cannot escape that fact by merely tossing out your beliefs.  Your beliefs, to be valid, must comport with the court decisions.  I have no interest in providing you a full education on understanding and interpreting the law.  

            I note that in your final paragraph you once again revert to your claim that Smith controls, in defiance of the Davis court's determination.  Do you expect readers to ignore the legal reasoning of a federal circuit court of appeals and to embrace your personal ("in my mind") ramblings on a legal matter?  I did, at least, get a kick out of your "much, much more analogous cases" language.  Those "much"'s are very convincing.  

        •  Smith only applies to the telephony metadata (1+ / 0-)
          Recommended by:
          orestes1963

          You are correct.  Smith v. Maryland only holds for the bulk collection of telephony metadata under Section 215 of the USA PATRIOT Act.

          It does not apply to the PRISM program and acquisition of internet metadata & communications.   This collection is made under the authority of Section 702 FISA.

          The PRISM and upstream collections differ from the telephony metadata program in two key respects. First, the PRISM and upstream collections acquire the contents of those communications. Second, as this program targets the “to/from” and “about” communications of
          foreigners who are abroad, the collection of Internet-based communications may be considered by some to be more discriminating than the bulk collection of telephony metadata.
          Congressional Research Service:  Overview of Constitutional Challenges to NSA Collection Activities and Recent Developments (PDF)

          Highly recommended reading. Published April 1, 2014 so it is very current. The report was prepared for Members and Committees of Congress by three Legislative Attorneys.  

  •  The diarist does not understand (4+ / 0-)

    that Glenn Greenwald is on a pedastal. Much of the ideology of a significant fraction of the people who post and comment on this site. They can not accept the fact that their Emperor is naked.

    We had a similar thing last week when the once-courageous Bishop Tutu continued a sad history of borderline anti-Semitic actions and statements in convincing the Presbyterian Church, USA to divest from three companies said to be doing business in Israel.

    Challenging groupthink is dangerous. People will attack you personally. I get it here, and I get it when I comment on right wing Jewish sites for being too liberal. (When I'm getting it from both sides, I figure I'm probably in the right place.)

  •  asdf... (4+ / 0-)
    Recommended by:
    Tortmaster, kharma, ozsea1, JVolvo

     photo doomed-thread.jpg

    As private parts to the gods are we, they play with us for their sport. - Black Adder "Chains"

    by Clive all hat no horse Rodeo on Tue Jun 24, 2014 at 09:59:35 PM PDT

  •  Recommended for discussion. n/t (2+ / 0-)
    Recommended by:
    Rejoinder, freakofsociety
  •  A crucial factual error (9+ / 0-)

    You refer twice to the "thirty-six of thirty-seven Federal courts that have heard the matter have held that the Smith v. Maryland case applies and that the program is legal."  However, the link that you provide indicates that this claim is not, in fact, accurate:

    The numbers are taken from the following summary of the argument presented by Office of the Director of National Intelligence spokesman Shawn Turner:

    "The New York and California court decisions, along with the findings of 15 FISC judges on 36 separate occasions over seven years support the view of President Barack Obama's administration that ‘the telephony metadata collection program is lawful,’ ODNI spokesman Shawn Turner said in the statement.”

    So, no, 37 courts haven’t heard the matter.  Three courts have, and in thirty-five out of thirty-seven  cases it’s been the FISA Court.

    Why does this matter? Because in the very next paragraph you write:

    “Also, Greenwald's not having fully researched the question doesn't seem like a worthwhile argument, as all of the thirty-seven courts that have litigated the matter have had Government and/or private and ACLU attorneys briefing the legal issues, and those courts also had staff attorneys to research the law.”

    But that’s not true.  The FISC, which operates—or rather operated—in secret, only hears from government lawyers.  No private lawyers, and certainly no ACLU lawyers, participate in the process.  This court was designed with a  narrow purpose: it was supposed to hear applications for warrants in cases with national security implications.

    What Snowden has revealed is that they’ve gone far beyond this limited role and have sanctioned broad, often absurd, secret interpretations of the law that contradict the plain meaning of the text.  Thanks to Snowden, we can finally see the day when we'll actually resolve the thorny issue of these programs' constitutionality in a venue that's at least somewhat open and somewhat democratic.

    You have quite a lot of nerve to peddle a blatant falsehood while criticizing the quality of Greenwald’s research.

    •  No, I said 2006-Greenwald's research ... (0+ / 0-)

      ... was excellent. Those courts change their judge-ships all the time, and there are at least a couple of different regional FISA courts. By the way, you are missing at least one other "venue," if that's what you want to call it. Or, "courthouse." (You are probably missing the latest one in which a different "courthouse" ruled that the program was constitutinal). Then, you are also missing the Supreme Court having passed on the Klayman case--at least for now. The matter has been heard by the courts 38 or 39 times. By a bunch of different judges. Here's the thing: We had a semantics difference, and you questioned me. Good! You and 2006-Greenwald have a substantive difference, but you don't want to question him. Why?

      Thanks for the substantive question!

      My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

      by Tortmaster on Wed Jun 25, 2014 at 03:25:21 AM PDT

      [ Parent ]

      •  You are not qualified to write on this subject (6+ / 0-)
        ...there are at least a couple of different regional FISA courts.
        This is really quite incredible. You clearly don't know the first thing about how the FISA Court works or what it is.  There are not "at least a couple of different regional FISA Courts." In fact, there are not any regional FISA Courts.  There is one FISA Court. It is located in Washington D.C. It has eleven members.

        You write, "Those courts change their judge-ships all the time..." as if you have any idea of what you are talking about.  In fact, in the last 35 years there have been a grand total of 56 judges who served on the FISA Court, including those currently presiding.  Over the entire course of Barack Obama's presidency a total of 14 men and women have sat on the FISA Court.

        And you somehow imagine that these imaginary regional FISA Courts with their constantly-changing and diverse membership have been hearing the ACLU's side of the case.  That's truly hilarious.  The fact that you consider yourself qualified to opine on these matters is insulting to those of us who actually understand what's going on.

        Here's the thing: We had a semantics difference, and you questioned me. Good!
        Our "semantics difference" consisted in my proper usage of a word and your improper usage.   The United States District Court for the District of Columbia is one court.  The Ninth Circuit Court of Appeals is one court. The Supreme Court is one court. The FISA court is one court.  If they all ruled on a question, then four courts would have ruled.

        If 15 FISA Court judges sign off on an order thirty-six times, it is simply inaccurate to say that "thirty-six courts have approved it."

        Your argument boils down to "A bunch of judges have done judge stuff, so we cool?"

        You and 2006-Greenwald have a substantive difference, but you don't want to question him. Why?
        Because the "substantive difference" is entirely a product of your faulty interpretation of his argument, a faulty interpretation that no doubt stems from your fundamental ignorance of the context of that argument.

        Seriously: you're not qualified to write on this.

        (P.S. Your compliments are sincerely appreciated, but I'd appreciate an honest acknowledgment of your factual errors even more.)

  •  Did you even read the 2006 piece? (8+ / 0-)

    If you did, you certainly didn't understand it.

    You write:

    "In a 2006 post on blogspot.com, Glenn Greenwald went into quite a lot of detail about pen registers (the subject of the Smith v. Maryland case), the Smith case itself, and the FISA laws that applied to the metadata program. Greenwald opined about what the "Constitutional" standard should be and dug into the law, chastising the Bush Administration for not obtaining court orders before demanding metadata from telephone companies."
    Except that's not what Greenwald actually was doing in the column in question.  He wasn't discussing the constitutional issues, but rather the statutory issues.  That's why one of the very first sentences is: " I think -- preliminarily -- that the statutory problems may be more severe than he [Orin Kerr] seems to suggest."

     The word "constitutional," which you for some reason put in quotes, appears three times in the entire column:

    1. An allusion to the "constitutional crisis" posed by a leader (Bush) who seemed to believe that he was free to ignore certain laws passed by Congress.  This has nothing to do with an analysis of the constitutional issues raised by wiretapping themselves.

    2. In a quote by Andrew McCarthy and another reference to that quote.

    This quote does refer to Smith v. Maryland, but Greenwald doesn't discuss that aspect.  He uses it solely to point out that McCarthy is a hypocrite in that he had defended surveillance by pointing to judicial safeguards and then defended it again when those safeguards were removed.

    Absolutely none of this constitutes a detailed analysis of the constitutional issues in question or of Smith v. Maryland. He certainly doesn't "opine about what the constitutional standard should be."

    You're really nothing but a charlatan who is deliberately misrepresenting the views of your opponents.  

    •  Read the first paragraph of the ... (0+ / 0-)

      ... 2006-Greenwald blogspot.com post. If he is not implying that the NSA metadata case is Constitutional under Smith v. Maryland with a court order, then I'm Edward Snowden. Those are his words. Shouldn't he defend them?

      My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

      by Tortmaster on Wed Jun 25, 2014 at 03:28:18 AM PDT

      [ Parent ]

      •  You must be Edward Snowden (6+ / 0-)
        Read the first paragraph of the  2006-Greenwald blogspot.com post. If he is not implying that the NSA metadata case is Constitutional under Smith v. Maryland with a court order, then I'm Edward Snowden. Those are his words. Shouldn't he defend them?
        Let's look at that first paragraph:
        Orin Kerr has a post which preliminary assesses some of the legal issues involved with the domestic data gathering program, concluding (in his standard, very careful law-professor-ese) that "my very preliminary sense is that there are no Fourth Amendment issues here but a number of statutory problems under statutes such as FISA and the pen register statute." I think -- preliminarily -- that the statutory problems may be more severe than he seems to suggest. But I want to emphasize that some of these issues are complex and this discussion is intended to lay out what appear to be the issues involved, including the likely grounds for finding that what the administration did was illegal. But none of this is set in stone or definitive, yet.
        What this paragraph says is that Kerr's preliminary conclusion is that the program in 2006 was constitutional but may have violated statutes.  Greenwald does not say anything about Kerr's comments on the constitutionality.  Rather, he argues that Kerr is understating the statutory violations.  That is what the column is about.  It is not a comprehensive discussion of the Fourth Amendment implications.  It provides absolutely no indication whatsoever that Greenwald agrees that there were no constitutional violations or that he would agree that the current system is constitutional.  The column simply isn't about that. You've misread it and misread it badly, Ed.
  •  The Smith court's reasoning (9+ / 0-)

    Smith, contrary to what you may have heard, did not establish a blanket principle that "collecting metadata is not a search." In fact, it does not use the word "metadata" once.  What it says is that in 1979 that the installation of a pen register did not violate legitimate expectations of privacy.

    In making this argument, the court considered the nature of the intrusion.  Justice Blackmun quoted the 1977 decision United States v. New York Telephone Company in emphasizing the limited portrait of a subject's life such technology offered in the late 70s.

    Indeed, a law enforcement official could not even determine from the use of a pen register whether a communication existed. These devices do not hear sound. They disclose only the telephone numbers that have been dialed - a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers."
    Blackmun went on to add:
    "Given a pen register's limited capabilities, therefore, petitioner's argument that its installation and use constituted a 'search' necessarily rests upon a claim that he had a 'legitimate expectation of privacy' regarding the numbers he dialed on his phone.
    The fact of the matter is that  technological developments have allowed for the use of "metadata" to create  a far more detailed portrait of our lives than would be revealed by  the numbers we dialed in the late 70s.  The question is whether or not we have a legitimate expectation that the government will not exploit this technology against the population as a whole.  That's a whole different can of worms.  And that's why even the government attorney who won in Smith v. Maryland was flabbergasted when he found out how the NSA and the FISA Court had secretly interpreted the ruling.

    I have no idea which way the Supreme Court will eventually come down on this (although I do know that we owe the very possibility of such a decision to Snowden).  I merely want to point out that it's not at all as cut and dry as the diarist makes it out to be.

    •  Thank you for your comments in this diary. (6+ / 0-)

      Very much appreciated.




      Somebody has to do something, and it's just incredibly pathetic that it has to be us. ~ Garcia

      by DeadHead on Wed Jun 25, 2014 at 03:24:06 AM PDT

      [ Parent ]

    •  See my allusions to the ... (1+ / 0-)
      Recommended by:
      Rejoinder

      ... Katz test above. It applies to one or a million or a hundred million. None of us have a "reasonable expectation of privacy" to business records owned by the telephone company. Moreover, that is data we have voluntarily given over to telephone companies.

      I'm glad you and I can agree that Glenn Greenwald needs to answer some questions about his 2006 blog post!

      My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

      by Tortmaster on Wed Jun 25, 2014 at 03:31:26 AM PDT

      [ Parent ]

      •  This is false (1+ / 0-)
        Recommended by:
        DeadHead

        The Davis court found that one does have a reasonable expectation of privacy in cell tracking data (business records owned by the telephone company) such that a warrant is necessary for the government to obtain such data.  You are blatantly misreading the cases to justify a tendentious position.

  •  Just can't get enough (5+ / 0-)

    of that NSA snooping on Americans stuff, can you?  Why do you think it's thwe best thing since sliced bread?  Do you really want President Perry to have these Unitary Executive powers?  (If you support it for one president, you support it for any of them.)  What's in it for you?  How does it advantage you to have the government snooping on all of us?  Do you even think it through at all, or is it entirely driven by knee-jerk partisanship?  As an ex-NSA op myself, I consider this profoundly dangerous territory.

    Pay no attention to the upward redistribution of wealth!

    by ActivistGuy on Wed Jun 25, 2014 at 04:15:23 AM PDT

  •  Smith covered a single person's phone (3+ / 0-)
    Recommended by:
    JVolvo, orestes1963, DeadHead

    and reasonable suspicion that the individual was involved in a crime.

    The NSA has effectively installed pen registers on all of our telephones. It is non-targeted, sucking up everything. They're spying on nuns, business executives, petty criminals, and Joe the Plumber.

    What this means is that, if the gov't wanted to, it has the data on hand and can mine it, the same way J. Edgar did, to blackmail or harass it's enemies.

    If the Obama gov't attempted to get a "Smith order" to install a pen register on Mitt Romney's phones, they'd likely run into problems. Not so with the existing program.

    This is not a hypothetical concern. Employees at the NSA have abused the system and run reports on private citizens already. (And it's not just the IRS - local police have manufactured fake subpoena's, submitted them to Yahoo, obtained critic's passwords, and unveiled their identities. This kind of power reminds me of Gollum's ring - evil and irresistible).

    Was never very good at math. Oddly, though, I can count by twos if I start at the number 1.

    by Mike Stark on Wed Jun 25, 2014 at 05:41:03 AM PDT

  •  Smith v Maryland is like a figleaf that isn't (6+ / 0-)

    adequate enough to cover the magnitude of NSA practices.
    Refer to the facts of the case. All law enforcement learned about their suspect from the pen register was whether he dialed a certain phone number from his home phone during a single two-day period. The device gave no further details.

    The privacy expectation has two hinges in the case.

    1]Telecomm customers willingly give service providers the contact info of the parties they call. As individuals or in a group, the expectation remains the same. The carrier must have the metadata.
    2]Based on practices that pre-dated Smith, it was reasonable for the carrier to allow law enforcement to have access to the metadata pertinent to an investigation  involving a suspect. The public's expectation of privacy isn't waived for suspicionless non-suspects.

    This is what I understand from PCLOB, the 11th Circuit, and the District Court of Idaho.

    Glenn Greenwald is of absolutely no consequence to any of this. He has no authority to prove that anything is Constitutional and if you think he does, that's your own confusion to sort out.

  •  When is KOS going to put an end to this garbage? (0+ / 0-)

    Why isn't there a penalty for wasting electrons? Electrons have rights too, according to Citizens United ;)

  •  Congressional Research Service Overview (0+ / 0-)

    I found this excellent Report from the CRS released in April 2014.   The point of this diary will likely be moot due to changes to the collection program that have happened since 2013 or will be legislated going forward all thanks to the Snowden revelations.

    Congressional Research Service:  Overview of Constitutional Challenges to NSA Collection Activities and Recent Developments (PDF)

    1.  The NSA no longer makes the determination about whether queries meet the standard of reasonable articulable suspicion (RAS).  The FISC court will be taking on this role - which apparently it had one before when it found the NSA breaking the rules.

    For most of the time between 2006 and 2014, a relatively small group of NSA personnel was charged with evaluating whether any particular query was supported by RAS.  However, on January 17, 2014, President Obama announced that he was directing the Department of Justice to seek a modification to the program that would require RAS determinations to be approved by the FISC prior to performing a query, except in cases of emergencies. The FISC approved those modifications and assumed the RAS-determination role beginning on February 5, 2014.

    This arrangement was not unprecedented. Over the course of approximately six months in 2009, the FISC required RAS determinations to be made by the FISC on a case-by-case basis after instances of NSA non-compliance with the FISC’s previous orders were discovered and reported to the FISC by the Department of Justice.  This pre-approval requirement was subsequently lifted after the FISC was satisfied that sufficient changes had been made to correct the earlier compliance violations.

    2.  Congress is introducing bills to address the scope of the requests for business records under Section 215 of the PATRIOT ACT.   The USA FREEDOM Act H.R. 3361 just passed the house - albeit it is not huge reform at least it is a step in the right direction.
    On March 25, 2014, the chairman and ranking member of the House Permanent Select Committee on Intelligence introduced the FISA Transparency and Modernization Act, H.R. 4291, which would prohibit bulk collection of telephone, electronic communication, and certain other business records under FISA, but would create a new mechanism for the Attorney General and DNI to obtain telephone call records from providers after making an RAS  determination subject to posthoc judicial review.
    From the footnotes see also:

    S. 1182 - A bill to modify the Foreign Intelligence Surveillance Act of 1978 - sponsor M. Udall [D-CO]

    S. 1551 - Intelligence Oversight and Surveillance Reform Act - sponsor R. Wyden [D-OR]

    S. 1631 - FISA Improvements Act of 2013 - sponsor D. Feinstein [D-CA]

    H.R. 2684 - Telephone Surveillance Accountability Act of 2013 - sponsor S. Lynch [D-MA-08]

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