“Collect It All” – TTG


In his eight years at the helm of the country’s electronic surveillance agency, Alexander, 61, has quietly presided over a revolution in the government’s ability to scoop up information in the name of national security. And, as he did in Iraq, Alexander has pushed hard for everything he can get: tools, resources and the legal authority to collect and store vast quantities of raw information on American and foreign communications.

To some of Alexander’s most vociferous critics, Snowden’s disclosures confirm their image of an agency and a director so enamored of technological prowess that they have sacrificed privacy rights. 

“He is absolutely obsessed and completely driven to take it all, whenever possible,” said Thomas Drake, a former NSA official and whistleblower. The continuation of Alexander’s policies, Drake said, would result in the “complete evisceration of our civil liberties.” (Washington Post)


General Alexander is a true believer, just as surely as the most fervent salafist jihadist. His faith is national security. He has taken an oath to support and defend the Constitution, but he interprets this oath differently than I do. He, like Obama, sees protecting the American people as his first duty. They're both wrong. They're as wrong as Brennan and his "honor the oath" crusade at the CIA. Wrong oath, John!  


The challenge for the CIA is to find the relevance is the ocean of information when something happens. The first step is for "data scientists" to save and analyze all digital breadcrumbs — even the ones people don't know they are creating (i.e. "More is always better"). 

"Since you can't connect dots you don't have, it drives us into a mode of, we fundamentally try to collect everything and hang on to it forever," Hunt said. "It is really very nearly within our grasp to be able to compute on all human generated information."

He ends with comments about how the "inanimate is becoming sentient," how cognitive machines (e.g. Watson) are going to "explode upon us," and how technology is moving faster than governments, legal systems, and even individuals can keep up. (Business Insider)


This is from a presentation given by Ira "Gus" Hunt, the CIA CTO, at a recent tech conference in New York. The slide show is enlightening in its grasp of the future of information technology and its total dedication to the cult of national security. 

Whatever you think of Snowden (I consider him a patriotic whistleblower), he gave a shot of adreniline to the struggle to protect the Constitution against the cult of national security. There appears to be some legislative activity. Representative Rush Holt (D-NJ) wants to repeal our post-9/11 security apparatus and start over with an emphasis on protecting Americans from government surveillance. Good thought, but a longshot at best. Representative Justin Amash (R-MI) wants to offer an ammendment to the defense appropriations bill to defund those collection and surveillance programs that collect on Americans. That's a damned good approach. Along with fifteen other representatives, Amash filed an amicus brief with the Foreign Intelligence Surveillance Court (FISC), urging the court to release its secret opinions interpreting Section 215 of the Patriot Act. Senators Wyden (D-OR) and Udall (D-CO) and 26 other senators are pushing for more, less clever answers from Clapper. I don't think Wyden is going to let go of Clapper. Alexander needs the same scrutiny. They both lied to Congress blatently. 

Secret laws and mass surveillance are incompatible with our Constitution. They have no place in America. I wish the senators and representatives that realize this truth success in their efforts to correct these wrongs. We, as citizens, need to step up. Coverage of these important issues is out there, even if it is buried. I recommend checking out the twitter pages of Glen Greenwald (@ggreenwald) and Jacob Appelbaum (@ioerror) for pointers to what is happening.

And finally, my gentle readers, I leave you with this one thought.




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91 Responses to “Collect It All” – TTG

  1. Apparently the FISA court will release parts of its opinions referenced in the post!

  2. Walrus says:

    It would be a very poor investigator that cannot find something in any persons communications that can be used to destroy them.
    What is worse is that ultimately they will have whole of life data to screen.
    Will they wake up? Unlikely.

  3. confusedponderer says:

    Hmm … is it blatently lying when everything that you
    do is so heavily classified that the people asking the questions lack the necessary security clearance? Is then, in the interest of national security, not disclosing that classified information an obligation … ?
    … and then: Would disclosing that information then be a breach of secrecy which under Obama probably qualifies leakers for everything between extrajudicial execution to kidnapping and indefinite detention (I include in that 365 years in jail, with the posibility of parole after 150 years time served). Hello Mr. Snowden.
    I recall that under Cheney the Mad, they even went so far as to reclassify stuff that was already in the public domain, which, the remarkable inanity of the very act aside, has intereesting legal implications.

  4. Alba Etie says:

    Col Lang,
    What should be the consequences for DIA Director Clapper & General Alexander for outright lying to Congress. I will be sending Senator Wyden & Senator Rand Paul a letter of support in their attempt to get answers concerning the “Overlords of National Security Cult ” that are infringing every day our Constitution and personal freedoms . I am actively seeking ways to find common ground with others concerned citizens regarding the Big Brother mentality that has engulfed us all.Perhaps the first steps in ‘waking the f–k up ” is to support those elected officials that are trying to protect & defend the US Constitution .
    Snowden is a Patriot & God Bless him .

  5. Alba Etie says:

    oops this post was done by TTG not Col Lang – anyway still agree with all of it ..

  6. Jane says:

    Having the government know to whom and how long every American spoke to anyone else and to be able to retrieve what was said in certain instances for a period of years is not a reasonable search or seizure and certainly not what the Framers had in mind when they guaranteed the citizens “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

  7. Charles I says:

    The lobster may scream, but that’s the last gasp, its not waking up.

  8. Matthew says:

    Col: As Stephen Walt has written, our very power and actual security makes these extraordinary intrusions irrational. The Bill of Rights survived the assault on Fort McHenry, the Kaiser, and Pearl Harbor. I doubt there is any country on Earth where the citizenry believe in their system of government more than we do. Why won’t any politicians acknowledge this?

  9. turcopolier says:

    Charles I
    I have cooked many lobsters and never heard one scream. i suppose this is a measure of my insensitivity and brutalized nature. I think of lobsters as a hard shelled version of shmoos. pl

  10. marcus says:

    This is what the idiots that respond “I have nothing to hide” don’t understand.
    Besides this response being evasive of the point, anybody that doesn’t have something they don’t want made public has has not lived an interesting life. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”–is the point.
    Dianne Feinstein evades the same question by using fear tactics, and the idiots respond as well, “If we don’t give up our rights the terrorists will kill us.”
    Anyone thinks people in these agencies are not or will not scrutinize the private speech of any significant politician before election is a fool.
    Let’s hope a significant group of citizens can muster to resist these violations of our rights.

  11. Peter C says:

    If I was a CEO of a large Multinational Company, would it be just grand to view the most secret industrial secrets, expansion plans, and internal communications of your rival.
    I’ve been waiting for the revelations of how certain favored Multinational Companies have received information gleaned from these various programs.

  12. confusedponderer says:

    It is known that the NSA in the past has for instance tartetd Airbus, and likely does so still. With no other serious civilian aircraft manufacturer left in the US, it is a fairly safe bet to assume that Boeing gets fed at least some of the information.
    Iirc intercepted pricing information allowed Boeing to seriously underbid Airbus in an aircraft deal with some gulf potentate or another.

  13. Babak Makkinejad says:

    That was certainly the case after World War II in France; the Gestapo files on the French Jews were kept by the French Police; “A lot of a effort has gone into gathering them, would be a shame to discard them now.”
    I imagine that the Stsi files are also kept by the Federal Republic of Germany.

  14. Doug Tunnell says:

    Great thread !
    Thank you.

  15. MS2 says:

    If/when any semblance of constitutional government is lost, all of this info will fall into the hands of precisely the people who undermined the constitutional government. They will run the full analysis capabilities that are currently presumably latent. Therefore we should not do this, because it is far more useful to the worst enemies of national security (as understood by little people like me) than it is to a constitutional government.
    If there is some weasel argument as to how this does not violate the fourth amendment, let’s get an amendment underway to clarify the situation. I have no doubt about the will of the people on this. What they say when polled by someone on the phone can’t be trusted in an environment like this.
    The constitutional government is compromised by the act of unreasonably searching for all of this data. And not in some feeble technical way, but very fundamentally. Therefore the collection of this information is an ONGOING MATERIAL ATTACK on anything you could call a constitutional government, and anyone directing its collection is in fact an “agent” of that which is overthrowing the constitutional government. The FBI would be within its rights to shut it down and arrest the decisionmakers and funding sources regardless of their titles.
    Exactly who/what is sovereign in the US at this point?

  16. marcus says:

    We know now from these revelations that the Stuxnet virus attack was most likely a product of one of these secret agencies. If a state did this attack against us would we consider this an act of war?
    If we consider this an act of war who authorized this? Congress?
    How can we know what they are collecting if they are lying before Congress? If they are habitually lying before Congress they are rouge agents that should be stopped.

  17. Eric Dönges says:

    Yes, the German government keeps the Stasi files. You can request a look at your file by contacting the appropriate agency – in this case, the BStU, see http://www.bstu.bund.de. Most of the information there is in German, but there are some English pages as well. Note that as I understand it, you don’t have to be a German citizen to check if there is a file on you and what it contains, though proving your identity (which is required) could be a bit more difficult from outside of Germany.
    I think it is worthwhile to note that the people most likely to be negatively affected by the continuing existence of these files (i.e. all those people who secretly worked for the Stasi in one way or the other) would have thought pre-1990 that the files on them where probably no big deal, as they showed their loyalty to the DDR. This should give the “I have nothing to hide” crowd some food for thought.
    As a side note, I am eager to find out if the strong suspicion that the NSA spied on German citizens with the active collusion of the German government is going to have any effects on the upcoming federal elections.

  18. r whitman says:

    We may be worrying too much about this. Information technology is dynamic, not static. Right now we have this great big fat government target of billions of bits of data and hundreds of thousands of hackers trying to disrupt the system. My money is on the hackers to screw up the data.

  19. confusedponderer says:

    Stasi files have been made public, and are being handeld by the special administration for stasi files, and every citizen is entitled to direct at them FIA like requests.
    The Stasi complied all sorts of trivia. I read my dad’s stasi file for instance. For my dad, the file noted that he had travelled there to visit relatives, was catholic, had children, worked for the German IRS – and was a burgeois element. Some of the info in the file must have come from people that he visited in a partner parish ‘drüben’. Charming.
    Now thanks to the NSA, whatever you do likewise goes on your permanent record.
    However, iirc the US government got their hands on some Stasi archives, and I presume they are utilising them. The special administration for stasi files is demanding them back, to no avail so far. They are probably … classified.

  20. The Pelican says:

    “…Exactly who/what is sovereign in the US at this point?…
    Incremental one-upmanship rules this country.

  21. Peter C says:

    One of testimonies before Congress a few days ago (I don’t have link) stated that “before you can find a needle in a Haystack, you have to create a Haystack.” Now with a Haystack of unknown dimensions and continuing to grow exponentially by the nano second, and analytical software being funded to deal with the Haystack and deepening security apparatus to cyber protect the system is clearly a Cyber Arms Race of unknowable dimensions. I do think the Crackers and Hackers love to match wits with the Establishment, but they truly lack the funding to build redundant unlinked mega storage sites that the data resides.
    The programs are developed by Corporations and who knows who and where the data is stored. Privatized digital Cyber. The agencies have tons of bright loyal citizens that have built some very useful and powerful Cyber Systems that were negated in the rush to A-76 everything, and once the Twin Towers came down the whole thing was open season to sell crap software to Uncle Sam, for a Kings Ransom.
    Because of the secret nature of the whole Cyber Thing, we will never know what systems failed or in an ongoing F 35 like inertial upwards spiral of quick give me more money to see it the thing will fly because you have invested too much already, demanded by the Contractors.
    I can see coming to light in the not so distant future the revelation (spin) that China has hacked the systems and that more funding is necessary to counter the threat.
    Its a whole new wing to be added on to the Pentagon. I imagine there are gargantuan turf battle to see if the Air Force or Army gets the big ball of wax. As this Cyber Thing unfolds it will be Theater to watch what is said and who says what to feather their funding.
    I believe Dick Cheney said “never let a good crisis go to waist”

  22. Fred says:

    Just outsource your IT storage to a third party overseas. Server replacement? Of course the data on the server wasn’t compromised/copied/sold.

  23. zanzibar says:

    Thanks TTG for this important dissent.
    Edward Snowden has been charged and hounded while Clapper and Alexander remain above the law. This tells us all we need to know about the state of the rule of law in our country.
    As someone that has lived in the bowels of our intelligence apparatus, do you believe these confirmations of “Collect it all” imply that we are too far down the rabbit hole to return to the spirit and intent of the 4th amendment in the normal course?
    IMO, the state has now all the tools of tyranny. All it requires is the Man on the White Horse. All the elements of the state from the executive, legislature and judiciary are on board. The EFF lawsuits on these matters it seems have not gone anywhere because of legal technicalities.
    What struck me in the WaPo article you linked to was the sentence – “But even his defenders say Alexander’s aggressiveness has sometimes taken him to the outer edge of his legal authority.” This use of sophistry, technicality and playing with word semantics to essentially skirt the intent of the law. To act with impunity since there is no longer any accountability. This goes to a point that both you and Pat have raised here at SST and that is personal honor. Raising the hand to take an oath to protect and defend the Constitution is meaningless unless men are honorable. This is part and parcel of what we see all around – the continuing moral degradation of our society in general. In my readings of historical texts of great societies from Gibbons work on the Romans and Sir John Bagot Glubbs analysis of many empires, among others, it seems that moral decline parallels the general decline of that society.
    It could be argued that history has shown that the natural tendency is for increasing centralization of power. Thomas Jefferson noted that the only bulwark to this force is an engaged citizenry exercising their sovereignty. Unfortunately in my lifetime over the past several decades we have become less willing to be engaged in enforcing what made America unique.

  24. mbrenner says:

    The argument that the security of the United States is at stake is specious. This proposition is independent of the question of legality – something that cannot be established since the executive blocks all attempts to have it adjudicated in the courts and the courts have evaded their constitutional responsibility in defering.
    I respectfully request anyone who buys into the security argument, to any degree, to respond to these questions:
    1. What EXACTLY in tangible terms is this threat?
    2. What is the evidence that it exists?
    3. What precisely is its magnitude?
    4. How does it compare to other threats the country has faced over the past century?
    5. How do we measure the INCREASE in the threat, as you define it, from the actions we have been taking? Refer to evidence, e.g. statements of perpetrators and potential perpetrators.
    Until the questions are posed, and candidly answered, by the President and those who share his view, there is prime facie evidence that the country have been the victom of the biggest fraud/scam in the nation’s history – one with no precedents elsewhere as well – in the political realm.

  25. seydlitz89 says:

    Thanks for this thread. And thanks to Col. Lang for hosting it.
    Here’s a classic quote which I think explains a bit as to where we are now:
    “I call the citizens of a State secure when, living together in the full enjoyment of their due rights of person and property, they are out of the reach of any external disturbance from the encroachments of others, and hence I would call security, if the expression does not seem too abrupt to be clear, the assurance of legal freedom. . . Those whose security is to be preserved are, on the one hand, all the citizens, in perfect legal equality, and, on the other, the State itself. The extent of this latter object, or the security of the State, is determined by the extent of its aims. . . ”
    Wilhelm von Humboldt, The Limits of State Action, 1792
    If the aims of the state become unlimited, then the security of the state, rather than the security of the citizenry, becomes unlimited.
    That, and we have seen a steady drift towards what I would refer to as “Corporatism” or the reign of corporations who are allowed unlimited political influence, but have no political responsibility or accountability, much like the politicians/government officials they buy off . . . This in line with what Zygmunt Bauman describes as the divorce of politics from power. Any reform at this point in time will be exceedingly difficult, on the order of what NSA whistleblower Thomas Drake calls a “second American Revolution” . . .

  26. mbrenner says:

    It is unreasonable to have expected a response from folks who, for the most part, share my skepticism. And two hours is certainly not a reasonable period of time. Anyway, we will hear nothing from our masters since – in my view -there is no answer to be given. So, I’m going to jump the gun and address the really big issue; how do we explain this dereliction of historic proportions? Let’s concentrate on our leaders even though the citizenry as a whole are accesories – especially the political class.
    Theoretically, there are four conceivable motivations at work: a compulsive drive to accumulate power for some diabolical purpose; career ambition and/or greed; the instinct to go along with the herd; psychological disturbance. As to the first, there are few evil people discernible in and around our government. Lots of liars. unethical characters, and cowards – but no one of importance who seemingly has any idea of what to do with all the power (info included) that has been stockpiled. They’re like misers who enjoy counting their money without any plan as how to use it. Mediocrity of ambition is our saving grace.
    As to careerism and greed, here where find the source of the energy that impels the whole process. Titles, insignia of rank, offerings galore to the self-important and status deprived are made available in abundance. So is money. We give about $55 billion a year to private contractors out of the intelligence budget of a supposed $83 billion. Since 9/11, that comes to half a trillion. Even by current standards, that’s an enormous amount of potential corrupting power. Hell, you can buy a Chairperson of a Congressional committee for $50,000 donation into his campaign chest and a job for his girl friend/wife-in-waiting. Political ambition is another dimension. We’ve had two presidents since 9/11 who have accomplished damn little (for better or worse – although the structural financial crisis and the absence of any serious attempt to get on top of it is an indisputable sin) but who have extended their leases on the White House by milking the “war on terror” for all it’s worth.
    As to the go-alongers, they are legion and everywhere. They are the dead weight that adds to the momentum and inertia.
    When we turn to the psychological factor, things get more interesting – and more troubling. To argue the proposition that a significant fraction of our leaders are emotionally unbalanced, behaviorally off-kilter, or deficient in reason one needs lots of space. Still, the flight from logic, the systematic evasion of evidence, the phasing into virtual reality whenever convenient, – all accompanied by signs that this is only partially calculating – indicates that there is an element of psychopathology that should not be ignored. People who dwell in a world of delusion have something wrong with them – wherever exactly the source of it is located. President Obama is numbered among them. His speech on drones last month was unsettling is his address to the President in the 3rd person almost throughout. As was the contradiction between what ‘he’ said to that 3rd person and what he as President actually has been doing. This, by the way, is a sign of clinical narcissism. Now. after months of disappearing from the scene and ignoring deep seated crises at home (while following an avoidance strategy abroad)the White House plants a story in the NYT that in fact Obama has discovered the clever rick of influencing things via “the invisible hand.” Unknowable are the ways of the Lord. This is sick.
    There are other weird characters on the scene – but space allows only a notation. There is General Alexander who according to reports seems to have become a captain Queeg when it comes to compulsively amassing data for its own sake. There is Brennan, whose flights into fantasy go back years. But that is enough for now.
    Some of you may take this essay as itself pushing the envelope of reasonable analysis. So be it if, at the same time, the ideas expressed above are taken at least halfway seriously.

  27. Jane says:

    The idiots who respond “I have nothing to hide” apparently have very little historical knowledge. At least it does not seem to have occurred to them that there were centuries in which Protestants and Catholics were persecuted simply for being Protestant or Catholic.
    It not what you think about the morality of what you are doing that matters, it’s what the powers that be think about what you are doing that makes this information collecting such a threat.

  28. Mark Logan says:

    All we have to do is elect people who swear to revoke the Patriot Act, even though it’s got a name which will give their next opponent a wonderful sound bite.
    It was renewed almost unanimously in the Senate, and just a couple votes shy of a veto-proof majority in the House. When we “WTFU” we can expect our government to, not before. As far as “they” know we like the laws they way they are. I find it hard to blame “them”.

  29. marcus says:

    Great writing, really appreciate your thoughts and analysis.
    The only other item I would consider is the potential of an “invisible hand” behind the scene controlling our politicians. A hand that knows every “youthful indiscretion”, racial slur, sexual partner… A simple whisper in the ear after the oath of office would suffice.
    And if you want to push the “envelope” maybe the “influence” has already occurred.

  30. robt willmann says:

    To make matters worse, on 17 July, the federal Second Circuit Court of Appeals (New York, Vermont, and Connecticut) handed down an opinion in the case filed by Chris Hedges, Birgitta Jonsdottir (a member of Iceland’s parliament), and others that challenged section 1021 of the National Defense Authorization Act of 2012, that permitted the indefinite military detention of people without trial “until the end of the hostilities authorized by the Authorization to Use Military Force” (AUMF) (the one right after Sept. 2001). The court of appeals vacated and cancelled the permanent injunction issued by the trial court that had blocked the use of section 1021. Here are the 60 pages of the “reasoning” by the court of appeals–
    The common duck and dodge was used … the people bringing the lawsuit had no “standing” to file it, meaning that they did not have a sufficient connection with the subject matter of the case, or were not harmed enough by it, or any harm to them was not apparent or imminent. Thus, the court of appeals did not even consider whether section 1021 was constitutional.
    Since the written law of a government deals only with words, anything is possible. Section 1021 is internally contradictory, as it duplicates the AUMF, but then expands its scope, but then says that nothing in section 1021 is intended to limit or expand the scope of section 1021. How does the court of appeals “write around” that intractable problem? Well, it is as easy as pie. Just read pages 33-38 of the opinion for a pathetic example of sophistry.
    Section 1021 claims to not change “existing law or authorities relating to the detention of United States citizens”, but the court of appeals does not say what all of that existing law is, and admits that the “existing law” can have quite different interpretations, but the court is not going to say what those possible interpretations are and is not going to try to resolve them. In other words, keep guessing folks, and roll the dice on your possible detention without trial.
    Getting back to reality, it is quite impossible for you to have “standing” to file a lawsuit challenging section 1021 of the NDAA on the basis of the imminent or impending danger of being detained because you will not know that your detention is coming, since the government will plan it in secret before snatching and grabbing you … at 4:00 a.m., of course.
    And by the way, section 1021 does not require the government to say that they have detained you indefinitely or where you are being detained. In other words, you can be “disappeared”, unless “existing law” requires such a disclosure and notice to the public. Do the judges with their lifetime appointments so they can be “independent” and “courageous” deal with this issue?
    What do you think?

  31. joe brand says:

    Adding substance to the case against James Clapper, the deputy director of the NSA told the House Judiciary Committee this week that the agency does “triple-hop analysis” of phone and email metadata when it identifies a potential terrorist:
    “For the first time, NSA deputy director John C. Inglis disclosed Wednesday that the agency sometimes conducts what’s known as three-hop analysis. That means the government can look at the phone data of a suspect terrorist, plus the data of all of his contacts, then all of those people’s contacts, and finally, all of those people’s contacts.
    “If the average person calls 40 unique people, three-hop analysis could allow the government to mine the records of 2.5 million Americans when investigating one suspected terrorist.”
    So Clapper told a Senate committee that the NSA stores everyone’s data, but only opens files and looks at it in association with particular, narrow suspicion. Not mentioned: that supposedly particular, narrow suspicion leads the NSA to open and analyze the personal data of a few million people.

  32. Alba Etie says:

    Its ‘Brave New World & 1984 ” knocking at our door – if not already in our living room .

  33. Alba Etie says:

    How much money did Booz Hamilton & KBR make in Iraq ( these are but two examples of many corporations profiting from ill conceived ‘wars ‘ re-Iraq & GWOT ). Which Congress Critters got money from KBR & Booz Hamilton for their respective reelections ? But for the window dressing sophistry of the SCOTUS Citizen’s United ruling -much of this abuse of power looks to me to be exactly what Congressman Cunningham got sent to jail for – bribery plain & simple. Corporations rule our government , and no Corporations are not people whose free speech needs to be protected .

  34. seydlitz89 says:

    Professor Brenner-
    Interesting analysis and I always enjoy your writing, but I can’t help but think you are more describing the symptoms than the causes. As a Clausewitzian strategic theorist, I would focus on the political relations and how they have changed. Changes in our political institutions would reflect this.
    Who exactly are the “citizenry” of the US currently? People who can vote, or rather people who exercise political influence? I suspect that for those who exercise political influence the dominate emotion/trait/reflex is fear . . . fear especially of “the people” should they finally realize how fundamentally the system has changed/been rigged against them . . . ?

  35. shepherd says:

    If they didn’t want to be cooked, they shouldn’t have gone and decided to taste so good with melted butter.

  36. marcus says:

    Add to the list of NSA offenses the chilling of First Amendment rights. How else to explain over twice the comments in response to the Martin/Zimmerman case than the possibility of hundreds of million of Fourth Amendment violations by the NSA?
    Do people not realize the gravity of the offenses or are they afraid to go on a List of potential terrorists? “You are either with us or with the terrorists.” Chilling statement.
    A separate issue: Do you really think they are just collecting “meta data” and not recording all conversations? Would that surprise or upset you?

  37. Fred says:

    Senator Stabenow of Michigan assured me and other that she would work to overturn this piece of legislation. That was in 2006.

  38. Fred says:

    Yes, the terrorist called the same pizza joint you did. Obviously you were having a combined pizza/terror planning party.

  39. robt willman! I agree with your righteous indignation! The judiciary has never fully evaluated the changes wrought by the Executive Branch post 9/11/01! Even the LAWFARE blog now supported by Brookings fails to be independent analysis since many of its contributors hoping for more chances at the gold ring in the National Security State.
    The ultimate corruption of the legal profession is now fully represented by a President that once purportedly taught Constitutional law but failed to read closely and understand that Constitution.
    Instead the fine line-drawing by the Judiciary is now largely devoted to protecting the Corporate Socialist state in all its finery.
    IMO a largely corrupted Congress maintained by legal fictions that have false premises and gerrymandering undermining the power of the voter is largely to blame.
    Vote the ins OUT!

  40. robt willmann says:

    Haste makes waste, as my fingers and alleged brain were not in sync in the third paragraph, second sentence of my comment, where I put, “Section 1021 is internally contradictory, as it duplicates the AUMF, but then expands its scope, but then says that nothing in section 1021 is intended to limit or expand the scope of section 1021”. It should read–
    Section 1021 is internally contradictory, as it duplicates the AUMF, but then expands its scope, but then says that nothing in section 1021 is intended to limit or expand the scope of the AUMF.

  41. The Twisted Genius says:

    Alba Etie,
    You asked “What should be the consequences for DIA Director Clapper & General Alexander for outright lying to Congress?” Fire them both. Let them retire, but revoke their security clearances. That last step will be like denying them oxygen.

  42. no one says:

    It’s not just the NSA. Local LE is up to some of the same tricks. They know every where you’ve been and they keep those records for more than a year (I imagine the length of time the data is kept will increase as more and cheaper storage capacity is obtained). http://dailycaller.com/2013/07/17/aclu-decries-the-use-of-license-plate-scanner-systems/
    The next step will be for the locals to supply this data to the federal level to be tied in with phone, email and other data. It will happen. DHS incentivizes local LE to participate in data sharing with generous grants for all sorts of paramil. toys and funds that can put $ directly into the pockets of the local higher ups.

  43. Chantose says:

    When I awoke, the Dire Wolf
    Six hundred pounds of sin
    Was grinnin at my window
    All I said was “come on in”
    Don’t murder me…

  44. Charles I says:

    au contraire my Renaissance man, I think I have some measure of your extraordinary sensitivity and civility. Its testament to my enduring facility at repeating anything non-lawyer/criminal I have ever heard when the mangled metaphor demands.
    Cue the violins, I AM allergic to shellfish so as usual I really don’t know what I’m talking about.
    Still I don’t think the regime is going to be rolled back. Might be completely bought out, but never voted out.

  45. Charles I says:

    gotta love the cloud, I still don’t even use wireless

  46. Charles I says:

    France’s services are notorious for serving industry but surely every one is at it these days, actual politics being so meaningless.

  47. Charles I says:

    Bit different than targeted collection of the victim d’jour but a lot of Stasi material is open to the public. One can go and see who informed on who the mundane drear of communist existence Been a few political scandals and comeuppances, but the sad, somewhat reassuring fact is that virtually everyone informed on everyone just to get along.

  48. Charles I says:

    Um, compare reactions to never-ending criminality and and a day long internet outage and its a no brainer. The people are sovereign and they’ll let you their status soon as the web’s up.

  49. Charles I says:

    not enough, the specific types of collection must be made illegal but much more importantly defunded.

  50. Charles I says:

    only a tiny fraction of those hackers have your interests at heart, and they have no interest in destroying the golden goose of backdoor access.
    They will cause little incidents that in no way discomfit the directing minds of these ops.

  51. Fred says:

    Incentivize local law enforcement, isn’t that how we one the war on drugs?

  52. Fred says:

    Yes, soon your personal identifying info will be raining down from ‘the cloud’. I wonder how long it will take until congress passes along corporate sovereign immunity to keep them from getting sued into bankruptcy over said toxic rain.

  53. The Pelican says:

    Socialism for the Corporations, “free-market” asset-stripping for the rest of us.

  54. Medicine Man says:

    Come on now, Fred, the War on Drugs has worked out wonderfully. Nary an abuse of person, property, or personal liberty to be found.

  55. Thomas says:

    “The ultimate corruption of the legal profession is now fully represented by a President that once purportedly taught Constitutional law but failed to read closely and understand that Constitution.”
    Well, you have to take into account that the classes were at Neo-U.

  56. Mark Logan says:

    Charles, thereby hangs a heck of a topic, how much privacy can anyone expect on the internet?
    The more I look into it, the more I tend towards the belief it can never be private. What makes it so useful is its essential nature of being a giant bulletin board, one cross referenced, indexed, and data-based to an astonishing degree. I can’t think of a way to bar the government, with any degree of security, from collecting the same data that Coca-Cola can about us. We (personally) never miss a chance to remind our teenagers that everything on-line needs to be considered an open book, and point out examples of people who make the mistake of thinking otherwise constantly.
    It appears we set up a system of laws within the Patriot Act that regulated this to a degree, but it also appears the government was abiding by that law.
    To what extent do we wish to de-fang our sheepdogs? Not all of them are out to “get us” and there be some wolves here and there.
    Here’s one interesting story which is being voluntarily suppressed by the press in order not to encourage copy-cats and let the sheepdogs work unmolested by sensationalism.
    (I’m kinda taking a Devils Advocate position here)

  57. r whitman says:

    The NSA is in possession of a tremendous amount of data. The best way of searching, analyzing and manipulating this info would be with a quantum computer (see Wikipedia article on quantum computers). Has the NSA developed a working quantum computer?? Did Snowden make off with the roadmap and blueprints that got the NSA there?? I would like to see some speculation on this from both the ex-intelligence people as well as the IT types on this blog.

  58. Peter C says:

    Fred, the war on drugs was won. The Drugs and all the governmental apparatus won. Could not resist responding to your humor! Isn’t interesting that the U.S. possesses the most powerful cyber gathering operation coupled with the most powerful remote sensing capabilities, drones, satellites, vehicle ID optical scanners at borders and inland from borders, coupled with local and federal humit.
    How can such a multinational supply chain exist that can move the tons of product needed daily across the borders with out detection? Your guess is as good as mine.

  59. The Twisted Genius says:

    r whitman,
    The IC’s answer to getting meaningful intel out of the mountain of data it’s collecting lies in software rather than hardware. Quantum computing will be better suited for encryption and decryption as they come online. Perhaps as quantum algorithms and programming advances, they will be able to reason and think through those mountains of data at breathtaking speeds. I don’t think they’re there yet.
    The software the IC needs now would be able to formulate the right questions, test multiple hypotheses, work through partial and deceptive data, learn on its own and be capable of making a leap of faith. That last bit was said to me by a Soviet trained, Polish cyberneticist and AI researcher in the early 90s. IBM’s Watson is moving in this direction, but it’s not there yet. The software algorithms will probably make use of geometric algebra. There are damned few people in the world who can create working algorithms with geometric algebra. I know one of them. He’s also a freaking genius hacker and quirky beyond belief. Snowden did not run in these circles. I’d bet money that Gus Hunt at the CIA does.

  60. Fred says:

    Which NSA contractors, unlike Snowden, are simply doing like the Johnny Cash song and taking bank account #s, passwords, SSN, etc, home a ‘piece at a time’ and selling them off. Or looting them (bank accounts)? Surely there are some folks with old fashioned greed in the ranks of the contractors.

  61. Charles I says:

    Quantum computing is just getting up and running and one of its fruits is the increasing ability to fathom the potential of biological computing just at a time having noticed fractals and the discovery that we can confidently manipulate bio platforms at the molecular, even atomic level.
    We will learn to insert data and biology will do the rest in a fantastic synergy of evolution, math, physics, mass bio-processor broad scale brute force computing, fractal algorithms, and the will to power.
    A petri dish of smart slime will take a single uniquely encoded data point and render infinite hop plots of a single entity’s every interaction back through several generations over a global scale. It may become much much more possible to confidently predict the future, though surely there’ll be some sorta heisenbergian blowback there too that the goo will neglect to tell us.
    Anyway, a gooey server full of every single thing, possible, impossible, mutants excepted but expected, is a current ambition. And that’s just of the scientists who only want to do it cause its neato. But for the whackos who need to know everything just in case there’s a nickel or a secret in it, bio computing’s gonna be the leg up on analysis quantum computing metal processors are going to provide – and then never match again.
    Gonna take a couple few generations but I’d bet on the goo over Ray Kurzweil soon as I can find a public bit to buy. It’ll be like owning Google early!

  62. Fred and r Whitman! What do you think of the notion that Bill Clinton’s signature in 1994 of the COMMUNICATIONS SECURITY ACT OF 1994 opened the barn door wide on all government surveillance?

  63. r whitman says:

    I think govt surveillance is a continuing thing that would have happened with or without a politicians signature. I can remember FBI domestic inquiries when I was an undergraduate in the early 1950’s. Again in the late 1960’s and early 1970’s the FBI was all over the place with surveillance. Even local police forces had files on “subversives”. None of these efforts were ever sanctioned by law.

  64. Charles I says:

    I agree in general and have pretty well given up tilting at windmills. I don’t want the power grid crashed, but then neither does the government that wants to know everything about me.
    The very essential qualities you note indeed both compel and insulate the astoundingly complex network from some kind of accountable overt authority. Some of the most egregious broad based domestic government potential can surely at least be better legally monitored and constrained by budget and accountability measures to offer a measure of accommodation and accountability to the population.
    Most people don’t even think about it, or even care so long as they can log on, are told they are loss protected, and are not an identifiable target. Still, inevitability should not default to going quietly into the good night. IMHO the Patriot Act and the GWOT have proven themselves to be one gigantic unconstitutional scam that has critically wounded your republic, all of us, as has the war on drugs. That’s an intellectual arena I’m not ready to abandon yet, just out of habit. The prima facie legality of these laws is not sufficient to pass unchallenged. Having been a criminal and a lawyer in that order, I have some reserve fear of unchecked surreptitiously informed power the hoi polloi seem inured to. Just how many coincidental reasonable and probably grounded “traffic stops” leading to 100 pound drug seizures is reasonable? As someone noted above, a three hop analysis of your 40 or so contacts affects millions, whereas a serendipitous trunk full of dope is a nothing.
    In the city I’m on the web 24/7 saying and doing the most I can to get on many lists I’m sure. On the other hand as a tin foil hatter, I have a laptop plugged into a cable that has only a locked homepage browser that is used solely for completely encrypted banking and trading.
    Not rational in all my noisy circumstances, but it makes me feel better, as does not giving up the fight just yet. Even if futile protest is unseemly and imprudent.
    We all go along we are not human, we are sheep.

  65. David Habakkuk says:

    “The software the IC needs now would be able to formulate the right questions, test multiple hypotheses, work through partial and deceptive data, learn on its own and be capable of making a leap of faith. That last bit was said to me by a Soviet trained, Polish cyberneticist and AI researcher in the early 90s. IBM’s Watson is moving in this direction, but it’s not there yet. The software algorithms will probably make use of geometric algebra. There are damned few people in the world who can create working algorithms with geometric algebra. I know one of them. He’s also a freaking genius hacker and quirky beyond belief. Snowden did not run in these circles. I’d bet money that Gus Hunt at the CIA does.”
    I trust that your ‘Soviet trained, Polish cyberneticist and AI researcher’ was taking the mickey.
    All this takes me back to the disastrous study of Pearl Harbor by Roberta Wohlstetter – who together with her husband Albert may have done more damage to American national security than any other couple in your nation’s history.
    Her book on Pearl Harbor is full of guff about the difficulty of distinguishing ‘signal’ from ‘noise’.
    Intelligence is, very much of the time, a matter of formulating the right questions, in the right order – in a way no computer in existence or in prospect can do. If the relevant questions are intelligently formulated, the ‘data set’ which needs to be considered may be quite small.
    So, in relation to Pearl Harbor, a critical question was: do the Japanese believe that they can attack the Dutch and British possessions, without making war with the United States inevitable?
    In turn, this begs the question as to whether an attack on the Dutch and British possessions would, as a matter of objective fact, make war with the United States inevitable. Only when one has attempted an answer to that question can one assess the credibility of alternative hypotheses. Among these, two obvious alternatives are that the Japanese rationally consider they can get away with expropriating the Dutch and British possessions without risk of war with the United States, and that they – irrationally – are capable of involving themselves in an all-out war with the United States without realising what they are doing. Different answers have radically different implications for how the United States should act.
    Irrespective of how one answers that question, it is likely to be necessary to ask whether the Japanese might consider that they have a viable strategy to secure victory, or at least avoid defeat, in the event of war with the United States. This is in part a question about their psychology, and in part a question about military technicalities which is extremely likely not to have a stable answer over time. So, for instance, questions as to whether torpedoes can effectively be used in the shallow waters of Pearl may generate radically different answers about the likelihood of the Japanese risking war, depending on the precise state of the technologies involved. A small change in the evaluation of a technical issue is capable of drastically changing the evaluation of the whole strategic situation.
    Depending on one’s answer to the questions I have outlined, one might conclude that the immense shadow of American potential power will act as an effective ‘deterrent’ to the Japanese. However, one might be driven to ask whether the possibility of dramatic initial successes might convince them that they have a possible strategy to force the United States into accepting a massive increase in their country’s power. Equally, one might ask whether a whole range of considerations making the abandonment of the Japanese imperial project difficult might cause the country’s leadership to engage in what any objective evaluation would suggest would be a suicidal course.
    Mindless accumulation of data is irrelevant to confronting these questions. What is important is to have people with the relevant intellectual capabilities and experience confronting them. In a wide range of situations, then as now, what is required is a combination of an – intelligent – appreciation of military issues, ‘area studies’ expertise, and a lot of time, simple ‘horse sense’.
    One does not need either ‘area studies’ or military expertise to have some sense both of the complexities of concepts like ‘national honour’, and also of the possibility that people who have boxed themselves into a dead end may take refuse in fantasy.
    Such considerations were completely beyond Roberta Wohlstetter, as they are beyond so many policymakers in today’s Washington, New York, and London.

  66. Fred says:

    I second rWhitman’s comments. Local law enforcement is busy with data collection, lots of it outsourced. Jus think speed and traffic cameras. All the photos of license plates are collected by third parties. There’s nothing showing they aren’t recording all the plates going through an intersection and only reporting the infractions. Where was your car, how many people were in it and when?

  67. MS2 says:

    That says something about where people’s attention is, not whether they are sovereign. What spooks me is that such a database of information is precisely what you would need to suppress any future situations where the de jure sovereign people actually try to do something de facto.

  68. confusedponderer says:

    One of the weird things that have always struck me as weird in the saga of administrative law and US security is for one the secrecy, and then the absence of legal recourse.
    That struck me first when I read the absurd process involved with challenging having gotten on a no fly list.
    At first, when travellers asked why they were not allowed to fly, they were only told that they were on a No Fly list. Who put them there, however, was secret. However, one could direct a request to be removed, to the authority that put one on the list …
    From a German administrative law point of view that is unacceptable and ridiculous: Having been put on a no fly list is undoubtedly be a “Verwaltungsakt”, an administrative act, under German administrative law, and quite naturally can be challenged in court.
    Just so you get the idea (and excuse the translation): The legal definition of a “Verwaltungsakt” is that it is (a) a ruling that creates a legal consequence for the addressee, and must be declared directly to the addressee, (b) by any organ of the executive branch exercising state power, that (c) regulates a single case and (d) has external effect [advising third parties, like airlines, not to serve the addressee instead is a circumvention that has equivalent effect]. If (e) a person is directly and personally affected by that administrative act, that person has standing to sue.
    Having been put on a no fly list meets all the criteria from (a) to (e).
    Yet it was only ruled a year ago that No-Fly list can be challenged in court, and without the likes of the ACLU it probably would have taken five more years. And the 11 years before that, the practice was unchallengeable in court, and lawmakers didn’t bother to enact legislation to that effect?! And it needed six years from 2001 for DHS TRIP to come into existence to at least offer at least some form of intra-administrative recourse – while maintaining the secrecy? Geez.
    The US approach to recourse in security matters routinely violates the following basic, if simplified, set of thumb rules – be it a No-Fly list, compelling librarians to turn over of library records or phone companies to turn over wire tapping or something of that sort.
    So, here are my thumb rules. I propose that, if an act scores two out of five, it is probably illegal if not unconstitutional for violating basic due process considerations.
    * An administrative act must not be secret; the affected party must know about it.
    * The body issuing an administrative act must not be secret.
    * The rules based on which the administrative act is being made must not be secret, so that they can be challenged on their criteria.
    * The evidence used to make the decision must not be secret, because to challenge it it must be known.
    * The affected party must not be gagged, since that greatly limits the ability to seek counsel and recourse in such matters.
    I could go on, but, since I don’t want to get angry during breakfast, I won’t.
    In university, once upon a time, we had a US guest professor boasting to us in lectures that the US had the BEST legal system in the world. In light of stuff like this, his earnest and enthusiastic statement comes across as a deluded joke. The US system is good in some ways, inferior in others, has fallen way behind in some crucial matters and has become profoundly unfair, if not outright Orwellian whenever terrorism charges and national security are involved. Permanent self-congratulation on the greatness of the founders and the like is not going to change that.

  69. ConfuseedPonderer! SCOTUS about 1803! Little v. Bareme holding that any citizen the subject of official action was entitiled to know the legal authority under which the federal action was taken and the specific delegation of authority to the person taking that action.
    A unanimous opinion of SCOTUS unlike the 5-4 show of egos and hubris by SCOTUS now.
    N.B. SCOTUS ignored most of the 19th Century jurisprudence of SCOTUS that held corporations were NOT citizens. They even failed to mention this entire jurisprudence in deciding that corporations were citizens and money and its expenditure was “free speech”!

  70. confusedponderer says:

    SCOTUS about 1803? Law has a funny way, when common principles are concerned, to come to a similar conclusion. The position I describe is Germany from 1949 to present, reinforced with experience from East Germany. I am very glad that our law is the way it is, it is ‘right’ that way.
    If you want to judge how good a legal system is, look at procedural law and legal recourse. The less recourse for aggravated parties it offers – be it in administrative or civil law – the less fair and less free a society is. By that standard, America does not look that good.
    In America, assessing this is being made more difficult by many functions exercised by the state in Europe being handled by privates.
    But even so – the way unjustified foreclosures were being executed on anyway by private parties, with owners being unable to do much about it, sends a chill down my spine. Here, inevitably, a court would have looked at it first.
    I see it as an example of how corporations, with their greater leverage, steam roll weaker parties – apparently acceptable for it’s “efficiency”.
    Or that outrage that Halliburton had its employees sign contracts that barred them from going to court and to go to mandatory (and worse, exclusive) arbitration instead – illegal here, because of very very the obvious conflict of interest that emerges when arbiter is being appointed by the corporation – not to mention the telling cut-off of legal recourse itself – again for the sake of “efficiency”.
    In matters of recourse you don’t want “efficient”; you want transparent, speedy and above all, fair. Considering the scarcity of angels, fairness is only achieved through process in the rational discourse that a trial represents.
    In light of such follies, I see the export of US law practices with some concern.
    A while ago I installed a US program (it was a computer game) and for once bothered to read the mandatory EULA – a galling experience – as I learned that I had to submit to US law, and not hand over the program to parties under US sanctions and stuff like that. Assuming I’d do so anyway – as it seems under the CFAA – such a violation the terms of a service agreement would constitute a federal felony. What the hell are these people thinking?!
    Tyranny comes in form of executive action or decree, i.e. administrative law. To allow recourse against such actions is crucial. It is no accident that Nazi Germany abolished administrative courts in 1939 and replaced them with an internal review process (think TRIPS).
    Laws and regulations are “deeds” and they speak volumes.
    And to come to that other question – corporate citizenship is the indeed a nadir of US jurisprudence. A corporation is an intellectual construct. To act and express itself it needs human actors that it employs. On itself it is a dead thing, an intellectual construct. It’s actors have interests and rights, and they can express them individually – do deny the corporation the same right does not by any means infringe upon that. To amplify that by giving them the added leverage of a corporation is just foolhardy as it has the folks on the board in a sense ‘vote twice’. Not quite census suffrage yet, but you’re getting there.
    And of course, the decision was deliberately made the way it was precisely to enable individuals to yield that bonus leverage through their corporations also. Disgusting.

  71. MS2 says:

    Re: confusedponderer’s rules of thumb and legally extralegal arbitration contracts:
    Has anyone ever managed to set up and maintain an empire without breaking those rules? By empire I mean a state or city-state that nearly always achieves its interests in jurisdictions where the affected people have no de facto ability to affect the state.
    Re: allowing extralegal arbitration: This is the road to the rationalization of fascism: that to create a powerful society, the state should _help_ the more aggressive and domineering elements of society more effectively lord it over the rest, so long as the domineering elements don’t (1) threaten the state (2) make the rest too rebellious or worn-out. (What constitutes “too rebellious” depends on the evolving technical ability to identify and suppress rebelliousness.) This produces a concept of what the state is chartered to do that is antithetical to the 18-19th century liberalism that is our reference point. Glibly, fascism’s critique of the liberal approach is simply that it makes a society disproportionately powerful, and weakness is vice. Godwin’s law or not, this is the heart of the matter: instances of fascism were crushed, but the ideological roots are too appealing to a certain kind of technocratic mindset to ever really wipe out; and we seem to feel we need to nurture this particular mindset because when it is given free reign in the private sector, it produces wealth, and actually at least appears effective in lots of organizations. At the public school/ pop culture level in the US, we just write off fascism as a cartoon from the past; and if there are circles where there is a less self-righteous exploration of how/why highly developed countries have chosen to do away with 18-19th century liberalism, I have not been in them. Ironically the pop culture lesson of fighting the old instances of fascism seems to be “we are at our best when we quit bitching, line up, and kick some ass” which is completely ironic.

  72. ConfusedPonderer!
    In the USA the foundation of the Administrative State was largely during the NEW DEAL years and erected by Judge Keneshaw “Mountain” Landis and others capped by the Administrative Procedures Act of 1947! The largest amendment to that Act was the Freedom of Information Act enacted in 1966.
    Whatever you views of the size of the federal government those statutes helped to make the federal government accountable and transparent at least to some degree.
    But the erection of the National Security State largely unaccountable and not transparent occurred in period following WWII. Now that NSS heavily influences the entirety of the federal civil establishment that covets the power, influence, waste, fraud, abuse and secrecy of the NSS. Failing to understand military civil relationships in the deepest sense and to any depth the current and former BABY BOOMER Presidents, all lawyers with real military service with its unique culture and accountability have almost destroyed Constitutional norms.
    Freedom, liberty, justice, and equality are earned daily not imposed from above or acquired or protected without earnestness and hard work. Question as to whether serious men have been elected to office in the USA in recent years.

  73. Corection: IMO none of the Boomer Presidents had any real military service–training perhaps!

  74. confusedponderer says:

    I am very much in favour of administrative law. It is IMO the most interesting field of law, insofar as it is the most important one since the utter majority of people-government relations are governed by it. My problem with the size of government is in respect to the US only that the prevalent privatisation in the makes comparisons more complicated.
    Administrations – just, merely benign or tyrannical – usually act through administrative law, that is what I meant with “Tyranny comes in form of executive action or decree, i.e. administrative law.”
    The only alternative would be the ‘Realakt’, the fait accompli – for instance Obama coming and blowing your house up.
    But in contemporary tyranny that is not how it works: If you were classified as bourgeois, your kids couldn’t go to university in East Germany. When you were a Jew in Nazi Germany, you couldn’t be a doctor or attorney. When you’re anything but a Jew in Israel you cannot buy land. Obama’s killing of peasants in faraway lands by drone strike based on pattern watching is the result of a presidential finding or guideline under administrative law. If you’re, rightly or wrongly, labelled a flight risk you cannot fly in the US. If you’re accused of terrorism, rightly or wrongly, you have no rights whatsoever because everything can happen to you from kidnapping, rendition to a torture regime, torture by the US itself in some hell hole under Bush, a drone strike under Obama etc. pp. – all of that, unchallengeable in court.
    The combination of an overriding concern for national security (and/or regime preservation) with administrative law is what characterises tyrannical regimes.
    What is eating at America’s soul is that doomsday lovers like Cheney see everything through a national security lens. I can’t retell all instances, but there is essentially nothing at all that is not being considered a part of national security in the US (because that’s where the money is?) – starting with water quality, the environment, unions, dissent, economic issues, health issues and probably herpes and hurricanes also.
    Just one example – I literally read that obesity is a national security problem because fat people are not recruitment material. Now what a boon that finally the US have gotten drones so physical criteria are not as much a concern as they were before …

  75. Mark Logan says:

    Thanks for your reply.
    Watched some of the hearings and spotted one area that definitely needs fixing: The limits the NSA and the FISA courts advocates are swearing they are currently abiding by are not spelled out in the law, they are simply the current interpretations of the court.
    It was comforting to see the people who created the laws feign outrage at how they have been “abused”. I suspect there will be changes.

  76. ConfusedPonderer!
    Perhaps a short brief on the Administrative Law State in the USA would make clear why the National Security State in the USA does not want to be part of the Administrative State and in fact fears that State to the Nth degree.
    The Administrative State built in the USA since the 30’s is based on the avoidance of arbitrary and capricious behavior by those who govern. You can be arbitrary and you can be capricious but not both. Why? Administrative law requires the creation of a reviewable of the administrative record with those who created the record accountable and responsible for it and that record be available for review by those vested with decision making authority. You now see why you could be arbitrary but your decision must be reviewable by the courts in particular based on what is in the record. Was the subject fully considered and was that record made complete by those compiling it and not censored or secret from review. And were those compiling the record and treated by the courts as expert [who is an expert in the administrative state would require another post and comment too lengthy for here just as would the treatment of the courts of “science” involve more]!
    If the administrative record is ignored or incomplete then the administrative decision is arbitrary and should be sent back for further review not simply voided. It is that completely compiled administrative record that is the key and that is exactly why the NSS fears that record and its compilation so much.
    In the middle 80’s a distinguished professor of law sought my advice as to whether a National Security Law text focusing on the domestic side of the NSS should be created? I said yes. And now in its 6th or 7th edition that text is one of many and National Security Law is no longer viewed as a subset of International Law solely but it is of course that always.
    My focus is and has been on what I label civil security in a democracy not necessarily what some call Homeland Security. Administrative law is clearly a basic necessity to civil security. The real question is the National Security State fed by enormous tax dollars and enjoying secret law a threat to civil security. Personally I believe it is as currently constructed.

  77. confusedponderer says:

    thank you for your explanations for which I am grateful, since, to my chagrin, my knowledge of US administrative law is quite cursory. My view is that National Security Law is administrative law all the same, never mind the other label. Maybe in that a mischievous streak shows.
    It is as straightforward as it is probably idealistic in the US context. It is however a rather orthodox point of view in Germany. And I also think that in its current form the US national security state, largely free of oversight and restraint, is destined to lead to excess.
    When the definitions fit the criteria of administrative acts, I’d kid myself if I ignored that (after all, what quacks like a duck …) – and from there it follows that there must not be exceptions from the procedures mandated by administrative law also, and if, then only to the extent that they are absolutely necessary.
    Speaking of such exceptions – compromises in the interest of national security – FISA in that regard appears to be an utter failure, considering that in 30 years they have apparently refused less surveillance requests than I have fingers on my hands. The NSA cannot be so sainted as to have not in three decades forwarded that few unjustified surveillance requests. Ludicrous.
    Now of course I see that the cult of those who pursue national security as a creed fears nothing more than transparency, judicial oversight and the shackles of administrative law – if the creed is national security über alles, then all of the three are severe security risks.
    Collecting everything, to create a haystack to search for needles is just an expression of that – even when instead they could just try to find, hire and train people that are good at looking for needles where they are most innocuous, pincushions for instance, or in the hand of a seamstress. Strictly metaphorically speaking of course * …
    But that is not a tech fix, and since to a hammer every problem looks like a nail, to the NSA there apparently is no problem that cannot be solved by more intercepts and increasing algorithms, storage and computing power.

  78. Confusedponderer!
    I should probably have mentioned the Regulatory State in the USA which is derivative of the Administrative State.
    Congress in giving regulatory authority under the Commerce Clause to some department or agency through the President or otherwise essentially delegates authority. The challenges to the New Deal were over excessive delegation of regulatory authority not actual administration of federal financial assistance programs although in some cases it did include that effort.
    Congress tries to have it both ways and often does, but the lobbyists always have it their way. How? If a regulatory body regulates in some way whether health and safety or financially the game is whether that specific regulation was authorized by the statutory delegation. If the lobbyists like it it was delegated. If not then it was not delegated. No person even one who tries to follow the issues closely can cover all regulatory actions, even those impacting health and safety. Thus the lobbying industry is free to “assist” Congress by providing draft legislation and reviewing draft legislation. The lobbyist also now have major staffs in all key states where significant decisions on their financial future or public health and safety may be made.
    As deceased Senator Robert Byrd was wont to say “they never sleep down there” referring to the Executive Branch. Congress simply outgunned by the modern world IMO! Worse deeply corrupted and unable to do its job.

  79. Perhaps I should disclose that I had a role very minor in drafting both FISA and the Classified Information Procedures Act both enacted about 1978!
    Both were labeled reforms. FISA because a brilliant lawyer now long deceased at DoJ was the real predecessor to FISA.
    MARY LAWTON! She was the key review point on surveillance issues for private communications mainly by the FBI!
    The second statute was enacted because DoJ was totally frustrated in trying and hopefully gaining convictions of spies. The defense attorneys had long learned to argue that only with the full release of classified information could their clients be defended. Sometimes it was true and sometimes not.
    Both statutes had and do still have inherent limitations. But when enacted they were viewed as positive reforms. Reforms in Washington sometimes play out very differently then when enacted.
    The hold on Dempsey by McCain is over the authority of Dempsey to speak his mind as Chairman based on tenuous language IMO in the National Security Act of 1947.
    That NSA of 1947 was also viewed as a reform. I have argued for its complete and comprehensive revision to advisors to both Clinton and Obama. Neither had the interest or the guts to take on the NSS IMO.

  80. confusedponderer says:

    from my point of view the differentiation between the national security state, the regulatory state and the administrative state is quite artificial – if, and I may be mistaken, they are being regarded as separate fields of law. To me they are not since they are all just different aspects of administrative law.
    Legislation that gives an administrative body guidelines and a legal mandate to enact detailed rules and regulations are quite common, and probably the most effective way to put these guidelines into practice, leaving the details to the subject matter experts. I don’t see that as much as a problem, since judicial review can tackle the issues resulting from it.
    If one looks at mining safety leaving the details to subject matter experts makes perfect sense, and it has been under the influence of lobbies that, at least under Bush, yes-men were posted in oversight positions – with led to mining corporations staying in operation despite a hundred safety violations and things like the Massey Mining disaster as a consequence. To abandon such forms of regulatory oversight, and denounce them as “red tape”, is a folly that has gotten people killed and likely will continue to get people killed, and the only explanation for such folly is blind greed.
    The institutional problem on which I fully agree with you, is the problem of formulation of guidelines under lobby influence. We have that here, too, but in the US you have at the state level groups like ALEC that have ‘conservative’ wish lists, eh, laws, ready made on the shelf, not to mention the big lobbying Washington that do the same on a federal level.
    If one looks at it in an abstract way we have basically four separate realms of law based on who is dealing with whom – state to state (international), private to private (civil law), state to state (constitutional) and state to private (administrative and as a special subset of that, criminal) – with some overlap.
    The laws on surveillance and the like all fall safely in the set of state to private relations, in which the private party is usually subordinate to the state (hand over records, you must not fly, let me search your computer, do this, don’t do that [act, tolerate, comply, cease]).
    The government covertly gathering data is just avoiding to have to do the former – telling the subject directly to comply with them listening to your calls and reading your meta data. But it doesn’t make the very nature of the act, the law they operate under and the power relations behind it any different.
    So I don’t buy at all that the national security state so special that it ought to be exempt from all the safeguards and obligations that for good reason have been put into place in administrative and criminal law, given the scarcity of angels and all that.

  81. confusedponderer says:

    Re: “Congress simply outgunned by the modern world” – as far as surveillance goes, technology has overtaken law, and legislation has not caught up.
    I wrote that the eavesdropping is the equivalent of an administration ordering you to search your computer – I didn’t bring it to the end:
    Technology has made it possible that they don’t need to tell you this any more, because they can, instead of searching you, go to the people who store and process your data.
    This what is making it difficult for affected parties to get standing in the US, as courts have routinely dismissed such cases on grounds that the eavesdropping was between, say, AT&T and the NSA, and that the data on the plaintiffs are just accidentally in the requested data. That is of course nonsense – the very point behind the NSA demanding the from the Telecoms was to get all there is.
    Universal surveillance is indeed a paradigm change over the traditional search.

  82. Confusedponderer!
    In response to your point that the Administrative State, the Regulatory State, and the National Security State are all the slice of the same pie, perhaps?
    But except for defense and sound administration of the federal fisc the Administrative State is not an adversary one.
    The Regulatory State often viewed as an adversary process even when dealing with health and safety issues by those regulating and regulated.
    But clearly the National Security State is at least nominally dealing with adversary’s of the USA, military or otherwise. Protection of the Constitution not high on the NSS list of duties despite the oaths taken. What seems to have happened is that the culture of the NSS in dealing with foreign adversaries, and even some domestic, has now turned in full fervor to deep mistrust and fear of the average citizen and resident of the USA who must be tracked completely to discover what they are up to doing. Little in the way of training or sensitivity to what made the USA great in the past. Domestically of course I always watch military involvement in civil life, including disaster response, as I worry that dealing with victims and survivors of disastes, those employed by the military will view them as the “enemy” and not worthy of any other consideration but FORCE PROTECTIOM upon which the military now spends billions each year. The events at Ft. Hood may put into question military internal security procedures. As more and more civilians are allowed to carry concealed weapons perhaps some review of Base weapons possession policy might be impacted. Off duty and off base conduct often problematic.

  83. confusedponderer says:

    I can see the reasoning behind the Classified Information Procedures Act. The practice it meant to address continues still, and is iirc called greymail. That would be one of the things where a reasonable compromise between due process and legitimate security concerns can be made. Do you think it has been a success in that regard?
    Also, in retrospect, would you say that FISA is a success? Does it strike a reasonable balance between privacy and security? The impression I have gotten from reading about the court is that it is generally not an obstacle to surveillance. They are either accommodating or the intelligence services are saints, or the reality is more nuanced and I just get it wrong. Or is it so that whatever FISA forbids is done out of the loop, and doesn’t reach the court anyway?

  84. MS2 says:

    FWIW Edit: the “Glibly…” sentence has “powerful” where it should have “weak”. If it’s going to be on a bunch of hard drives, it might as well be corrected. Anyway the less strident way of saying what I said above is that the notion of fascism as a cartoonish evil from the past is flawed and its underlying mindset is better understood as something akin to gut bacteria that had better stay confined in certain places. I think it was Toland’s biography of Hitler that had a Viennese ask him “did someone crap in your head and forget to flush?”

  85. confusedponderer says:

    That quip really sounds like something a Viennese would say. They have that way with words.

  86. CP! If you will allow that abbreviation. The real problem is that those very few cases that reach the Judiciary don’t allow that Judiciary to develop expertise with regards to their NSS issues and policies. The FISA court was an attempt to alleviate that lack of expertise. But Judges can be lazy also.
    My guess is that stories like that on leak prosecutions in today’s NYTimes may well sensitize the FISC! Perhaps am wrong.
    It would be difficult to see how that court could be any more friendly to the NSS as it is now.
    I am hoping some academic [law professor perhaps?] will write up both FISA and/or CIPA and analyze their impacts, successes and failures.

  87. Clywdshire says:

    Perhaps that which threatens our constitution also undermines our intelligence:
    Medical researchers have worried quite a lot about “collecting too much data” in considering the consequences of running tests with high numbers of false positives. A test that is, say, 98% effective, seems pretty good when you look at the percentage, but when applied to a large population, the costs for the whole medical system, for follow-on medical services, and costs to individuals falsely identified as having a disease are absolutely appalling. One of the costs of such errors is always that other serious medical problems that are treatable are missed. The “big data” approach to finding terrorists must be very inefficient compared to routine medical testing, and in some ways the costs of the false positives found in that process might be estimated using the medical models for various diseases. Misdirected attention and misdirected resources are a big problem when you collect too much data. Perhaps an insider could do the math, and tell us what this actually costs.
    Secondly, the staff necessary to service the kind of data that is being collected by the surveillance apparatus, including contractors of various sorts, has grown huge. Big enough to be some kind of sample of the population of the country as a whole. They are probably hiring at lease one possible Ed Snowden every month (and that’s a good thing, in my view), and they are surely hiring a dozen idiots every week. Even if you ignore or overlook the corruption inherent in the contracting system, the sheer size of the staff with security clearances that this system has created makes the system itself part of the business community in this country. I think of myself as living a long way from Washington, geographically, and in every other sense, and still there are people in my own (mid-western) state who identify themselves in corporate life with their history of work within and connections to this apparatus. It will soon be hard to investigate the problems of the “big data” approach to chasing terrorism, without seeming to be anti-business. My guess is that a deep penetration of the profit motive within this kind of intelligence gathering tends to exaggerate its importance and its successes. .
    Perhaps computers can find correlations in large batches of data that, while invisible and incomprehensible to humans, may help predict the future actions of human beings. This dream always seems to come from a marketing department that expects that someone who has visited a website devoted to a dead starlet will buy purple socks. If someone identifies you as a terrorist on the basis of some set of correlations, you have no defense, because these are not the same as intentions, planning, or actions, that you can ask be proven. Besides endangering our constitutional rights, then, the technological apparatus that studies big data will swamp our attempts to understand the real world with trivia. I expect that some day its masses of data will be sold in the same bankruptcy sale that disperses reality television, the Federal Reserve, and bubbles in the stock market and real estate.

  88. The Twisted Genius says:

    Excellent points, Clwdshire. Cyber is the new GWOT among both the beltway bandits and the empire building bureaucrats that inhabit the swamps of D.C. Eventually they will feel obliged to showcase some kind of success to justify further investment. Just like the FBI fabricates terror plots from easily manipulated sad sacks, the big data people will create terror plots using some form of six degrees of Kevin Bacon software.

  89. In a very close vote [217-205] the US House of Representatives refused to adopt restrictions on surveillance by NSA of American citizens and residents. Yesterday late on the 24th of July.

  90. Reading a book and found an interesting reference to a WSJ editorial pre-Murdoch for which I have no link:
    “More Domestic Spying-Now we learn that NSA sought records of every phone call in the Country. What else don’t we know?” 2006 Editorial Wall Street Journal 12 May, A20.

  91. Late this PM [August 9th] the WH used the late summer Friday PM ploy for release of a White Paper on why collection of all private phone conversations is Constitutional and authorized by statute. The WP relies on the fact that the contents of all private phone calls [N.B. not the fact they were made] as being business records of the providers. Hey, who knew?

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