Saturday, January 26, 2008

"Because then the terrorists will win"

Let's look at a couple of simple paragraphs, shall we?

- The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment IV, US Constitution.

I gotta tell you, that seems pretty clear cut to me. American citizens have the right to be secure in their persons, their houses, their papers, and their effects against unreasonable search and seizure. I think any reasonable person would agree that their 'effects' include correspondence (both paper and electronic) and private phone conversations. With my background, I know for a fact that the Armed Forces Security Act of 1949, the National Security Act of 1952, and the Foreign Intelligence Act of 1978 were very clear about this - and in my previous profession the quickest way to go to Fort Leavenworth for an extended stay was to violate the 4th Amendment rights of an American citizen. Things have changed.

Now, does the 4th Amendment mean that Americans can violate the law freely, up to and including treason and there's nothing the Government can do to protect the people or the Nation? No, of course not, the founders were idealists, not idiots. It's right there in the 4th Amendment, if the Government can show 'probable cause' before a judge, then they can get a warrant and the search and seizure of persons, property, papers, and other effects are then no longer 'unreasonable.' If the government can't provide enough evidence to convince a sympathetic judge - well, that would be a pretty good indicator that either the government doesn't really have a case, is just being lazy, or that the suspect in question really isn't doing anything they shouldn't be doing.

But, Jim, doesn't this make intelligence work more difficult? And if intelligence gathering is more difficult, doesn't that make us more vulnerable to the TERRORISTS (queue hair raising music).


That's the price you pay for freedom and liberty. That's also why the first thing that goes in a tyranny is the right to privacy from the state; law enforcement is always easier in a dictatorship - there's a reason for that. The 4th Amendment is one of the fundamental rights of all Americans (yep, even Americans who wish to do the rest of us harm) and it makes it a hell of a lot harder for the government to act like a tyranny - which is why it's always the first right tyrants seek to destroy under the banner of patriotism. And it's always something, some terrifying threat used to justify the dismantling of the Constitution, fascist sauerkraut-smelling Nazies, Godless red commies, towelheaded Jihadi terrorists, Canadians, something.

- The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. Amendment X, US Constitution.

Again pretty straight forward, if it isn't in the Constitution or specifically agreed on by the states, then the Federal Government can't do it. Cannot. Powers not delegated to the United States are reserved for the states themselves - or to the people. This is clearly stated. And it's interesting, because nowhere in the US Constitution or it's Amendments can I find anything that gives the Executive Branch the power to violate the 4th Amendment. No. Where.

Which brings us to this: President Bush Seeks Broader Wiretapping Authority.

Look, I used to do this for a living. No, not monitor Americans - emphatically not Americans - but I spent much of my career in the electronic intelligence field, and while I may occasionally talk out of my ass about things outside my area of expertise - this is something I know a great deal about, including the legal and Constitutional aspect - these principles were pounded into our heads over and over and over.

The article above says, "U.S. intelligence agents currently monitor international phone calls between people in the United States and suspected terrorists under a law known as the Protect America Act." You probably haven't heard of it, but basically the PAA was passed last year and what it does is amend the Foreign Intelligence Surveillance Act so that instead of an actual warrant as specified in Amendment IV, an internal National Security Agency review process will determine the legality of each wiretapping and surveillance operation involving Americans. Read that again - an internal NSA review process, not a court, not Congress, not even the President. Lawful warrants are specifically not required.

That law expires next Friday, and Bush is quietly having a cow about it.

The article I linked to above uses the term 'intelligence agents,' but what they actually mean is the National Security Agency. Most Americans have little knowledge of this agency or it's mission and up until a couple of years ago even admitting that it existed was considered an act of disloyalty boarding on treason. When I worked there, we used to call it No Such Agency (or No Shit, Again?) Now, I have no intention of violating my oath, but I will say that NSA can be a damned scary place. It's big, bureaucratic to a degree that defies comprehension, complex beyond understanding, and compartmented like a nautilus shell. Some fairly strange folks do some fairly strange things there. Their business is secrets.
Everything at NSA is classified. they'd classify the lunch menu in the cafeteria if they thought they could get away with it. It's an easy place to hide things, and it's any easy place for things to get out of hand, very, very quickly. NSA employees (there is no such thing as an NSA agent, NSA people are analysts or paste eating geeks or peons or military folks) are specifically trained not to ask about projects and departments they're not involved in. Information is disseminated strictly on a need to know basis - and you can guess who decides who needs to know. It's a place where it has become increasingly easy to break the rules, ignore the Constitution, and violate the basic rights of Americans. NSA was once an organization of idealists, but that idealism has been perverted, corrupted, diverted in the guise of false patriotism.

Power corrupts. Absolute power corrupts absolutely. This is an old, old platitude. It was true in the time of the Roman Emperors, and it's true now. The Protect America Act puts the fox in charge of the hen house. Not only does this violate the 4th Amendment directly, by bypassing the need for a Constitutionally required warrant, it violates the 10th Amendment because neither the states nor the people have formally given up their rights to the Executive Branch of the Federal Government as specifically required. More than that, the Protect America Act violates the very spirit of the principles of the Constitution, specifically separation of powers and the system of checks and balances. The PAA places power squarely in the hands of one person (something the Constitutional framers were adamantly opposed to, so much so that they fought the Revolutionary War to rid themselves of a King), it uses the military against America citizens (NSA is part and parcel of the DoD, and manned in many positions by military personal, especially at field sites), and it concentrates power behind an impenetrable veil of secrecy in the name of patriotism and national security.

This act is a mistake. It's renewal will be an even bigger mistake. Terrorism is the Red Scare of the 21st Century. Like I said above, it's always something. Commies, Nazis, Terrorists. The Patriot Act and the Protect America Act are the second coming of the same old calvary. Last time it was Joe McCarthy in the Senate and the House Committee on UnAmerican Activities, this time it's George W Bush and the Protect America Act.

Just as with ole Tail Gunner Joe and HCUA, the Protect America Act isn't about any external threat to America - it's about power, corrupt absolute power, in the hands of one man. And call it whatever you like, it's as unAmerican as it gets and it's contrary to everything our Founding Fathers stood for.

Here's what I know, the Constitution of the United States has stood for 220 years, and it has survived the Commies, the Fascists, Civil War, and every other threat that has been thrown at it. It'll survive the terrorists too.

Unless we, and our elected leaders, give it away.


  1. Please tell me you've sent this post to some high power media outlets, like the NY Times or Washington Post? Excellent post, and I agree with you 100%!

    My only concern is that when the Dems get elected this fall, and nothing could be more sure than that - save that the Patriots will win the Super Bowl, that they start the process of dismantling what Bush has put in place.

    Something tells me they won't do it or it will be much harder than it was to get them in place.

  2. Constitution, yay! Bill of Rights, yay!

    George W. Bush taking any and every opportunity to systematically undermine the Constitution and the Bill of Rights, WTF!

    As Ken says, excellent post, 100% agree.

    The National Security Agency can do anything it wants as long as an internal National Security Agency review says its OK!? Noooo!

  3. Ken,

    Democrats or Republicans in charge, once an Act like this has been in place for a while, it becomes damned hard to change. Massive amounts of money have been spent (on equipment, training, procedures - and in this case paid to the Telecoms) and new departments have been formed (which means new managers and supervisors who have a vested interest in keeping that department in place) and nobody wants to admit that they were wrong.

    Plus - and this is the real reason - unfettered, warrantless, monitoring of Americans is an incredibly, almost unbelievably, powerful tool. That kind of power is irresistible to almost every politician, no matter what their stripe. And it doesn't take long for to them to start rationalizing why they need it, and then start expanding the scope of the process to include everything, not just external threats.

    This is a tool that will indeed yield results, but the negative side effects outweigh the positive.

    In the 50's somebody proposed blasting a new sea level canal across Panama, using nuclear weapons. They also proposed blasting through the Rocky Mountains the same way for the (then) new interstate highway systems. Would it have worked? Yes. But the consequences would have be disastrous.

    Same here. Exactly the same here.

  4. I started writing a response here a couple of times and deleted both of them. You really didn't leave us anything to add.

    Excellent post.

  5. Does anyone know if the ACLU has filed suit to determine if this is unconstitutional?

    Donating to them is starting to look better and better...

  6. Flying monkeys, Nathan, I didn't mention the flying monkeys. You could add that.


    Actually, as I was getting ready to go plow snow (yes, AGAIN), I happened to think about this again.

    Speaking of divine rights - funny how monitoring the average American makes America safer, but all that White House email disappeared, isn't it? How come my email and phone conversations are a matter of state security, but the White House communication isn't?

    Just asking here.

  7. Janiece, I don't know. I'll look it up. I suspect the Attorney General would have something to say about it, but Eric would probably have better insight into that process.

  8. I'm saving Flying Monkeys for Hijack™ Day. Have you got your post standing by? It starts in a mere 4 hours 25 minutes. (12:01 am GMT).

  9. Add in the Real ID™ and all we need to do is workshop our TSA agents to use an eastern european accent when asking "Paper, please" and we'll be stars in our own bad cold war spy thriller.

  10. I don't know if the ACLU has filed any suits related to the PAA--I wouldn't be surprised, but there are problems with hoping the courts will solve the problem.

    The first is that the ACLU can't simply sue: getting into court means having standing, which means being able to show some actual harm (or probability of harm if injunctive relief is sought). In other words, the ACLU has to represent someone who can show his communications were tapped--and yes, this can create a sort of catch-22 when the State is saying they can't reveal who they've been spying on for national security reasons ("You can't sue unless you have standing, but you can't find out if you have standing unless you sue...").

    Combine that with courts' traditional deference to the executive on national security matters, and deference to Congress on legislative matters, and any ACLU action may not see the inside of a courtroom. Welcome to the dark side of Federalism, where the only branch that will listen to the People's complaint directs them to the branches that are screwing them for relief.

    This is why the Democrats' rank betrayal of civil liberties is so painful: when the executive asks for something, the legislature is supposed to say "why" and (if it's unreasonable) "no." The courts, despite the claims of some right-wing wackos, are a last resort with little actual power who act last when they can act at all. The bitterest irony in all of this is that if Clinton had asked for half of what Bush has received, the Republicans would have had a collective grand mal. Next year, it's likely a Democrat (possibly Hilary Clinton) will have the powers Bush got for her; we'll see how the Republicans like the shoe on the other foot. Meanwhile, for the rest of us....

    Not looking good. Not unless the Dems manage to say "no" to the Ring and throw it into Mt. Doom. Do I sound optimistic?

  11. Eric put his finger directly on the crux of this problem - you can't take legal action unless you can prove (reasonably) that your rights have been violated.

    In order to do that you'd need confirmed data from either NSA itself, or from the Telecoms involved in carrying your compromised data. This type of monitoring is passive and is done in the telecom switching equipment and is therefore completely undetectable by any equipment or procedure that I'm aware of - at least to the average user. In the old days, a technically knowledgeable person could see the patch cords inserted in the local tech control center. Not today, the switches are computer controlled and electronic - they can be controlled remotely so that the people in a local tech center/switching center have no idea which or even if lines are being tapped.

    The first indicator you're likely to have that you're being monitored is when the FBI shows up and hauls you off, or your name comes up on the secret no-fly list. According to the PAA, if you are arrested based on this info, you are not allowed to see the evidence derived from warrantless wiretapping, the rules of discovery do not apply, in fact the information and the method used to obtain it are classified as National Security issues. And because the info is classified, you cannot confront your accuser, you simply must take the Government's word for it.

    It gets worse. Once accused of terrorism, you basically have no rights, period, as defined in the Patriot Act. Anybody remember what happened when you were accused of being a communist by Tail Gunner Joe? Same thing, except here you get to go to prison for a couple of years while they figure it out. And should the accusation be in error, well, so sorry - because one of the provisions GWB wants in the Act is immunity from lawsuits both for the violation of constitutional rights and for false accusations. Capricious and arbitrary power, in the hands of the Executive.

    This entire process is precisely what the Constitution was designed to prevent.


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