K. Hit'em with Click-Bait Headlines and Logical Fallacies On June 20, 2013, The Guardian journalist used a click-bait headline for his article about minimization procedures. It read: "The top secret rules that allow NSA to use US data without a warrant." NSA minimization procedures, of course, are the rules and protocols which are instituted by the agency so analysts can protect the privacy of American citizens--they are rules that prevent the viewing much less the use of "US data." As you can see below, Greenwald used a small feature of minimization procedures to describe the whole process. The minimization procedures include overall standards that are supposed to be applied to the entire intelligence community, including the NSA, FBI, CIA, and other agencies, but there are also intra-department regulations, as well as specific minimization procedures that the FISA court requires for each individual NSA surveillance program. In this article, Greenwald only provided one of the sets of minimization procedures. He also wrote:
(Highlighting added). That sounds ominous. The Government can obtain, use and keep communications that involve Americans without a warrant. Later in the article, we find out that the "US communications" that "can still be collected, retained and used" "if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity...." (emphasis added). The perfect analogy for this exception to the minimization procedures is a similar exception to the warrant and probable cause requirements employed by local and state police every day in the United States: The Plain View Rule. As a lawyer, Greenwald must have immediately realized this perfect analogy, but he would not want to use it to help describe the process to his readers because that would make the NSA procedures seem much less terrifying. The Plain View Rule allows police officers, who are making a lawful traffic stop, to confiscate contraband and make arrests if the officer sees contraband in plain view. For example, if a state trooper stops a vehicle for allegedly speeding and sees a bag of cocaine and a gun in the passenger seat, the officer can take action. The officer does not have to ignore the obvious criminality under her nose; rather, she can arrest the driver and appropriate the contraband. The same rule applies to law enforcement officers who are invited into or are otherwise legally inside a home. If drug paraphernalia or obviously stolen merchandise is within plain view, the officer can take action. Similarly, if during the course of a surveillance program involving foreign agents or terrorists an NSA analyst runs across a communication involving a US person who plans to receive a large shipment of drugs from Columbia on Friday, for example, the analyst doesn't have to ignore that communication. Such an outcome would be absurd. No warrant is needed when the NSA analyst is viewing foreign communications lawfully in the first place and the criminality is in plain view. Yet, if Greenwald placed the exception to the NSA minimization procedures in this kind of context, he would not be the salesman that he is. Besides, by explaining the universally-accepted Plain View Rule, Greenwald could not misleadingly question the truthfulness of Government officials. Besides the misleading headline, Greenwald raises a question about Government officials being evasive, but he then answers his own question later in the article:
Five paragraphs later, there is this:
So, it seems there must be an individual warrant to intentionally target a US citizen. No warrant is ever needed for evidence of criminality that is in the plain view of law enforcement lawfully going about its business. As an attorney, Greenwald was fully aware that contraband in plain view is a universally-accepted exception to the warrant requirement. He knew what "President Obama and senior intelligence officials" were talking about, but he wanted to present a manufactured "clash" for his readers. Very few people except for judges and attorneys in courtrooms speak of the "warrant requirement under American law except as modified by well-known and universally recognized exceptions to the warrant requirement." Most people speak of the warrant requirement with the understanding that there are a few exceptions, including plain view and hot pursuit. This type of supposed "clash" that Greenwald wrote about is a mechanism he has used throughout his reporting to cast unnecessary aspersions on the truthfulness of Government officials. It is also a scare tactic and a logical fallacy. Finally, Greenwald again continually flogs his talking point that NSA analysts have too much discretion. He writes, "In practice, much of the decision-making appears to lie with NSA analysts, rather than the Fisa court or senior officials." Later in the article, he discusses "how much discretion NSA analysts possess when it comes to the specifics of targeting, and making decisions on who they believe is a non-US person," and still later, he describes " ... the discretion given to NSA analysts...." It would seem, according to Greenwald at least, that NSA analysts can do anything they want and regularly run naked through fountains of American data and communications. What Greenwald downplays are the minimization procedures, the desire of most Government officials to do a good job, to help their country, and the fear of losing one's job or going to prison. Greenwald is again downplaying the Rule of Law. Moreover, does he expect Richard Branson to appear at every Virgin Mobile outlet to make each sale himself? Surely, Branson's company has rules prescribing how his employees are to sell cell phones. If the employee violates the rules, she can be fired; if she does something illegal, she can go to jail. It seems that Greenwald is constantly asking his readers to suspend their common sense and what they know about life experiences. |