Snowden's whistleblowing has embarrassed the administration because domestic spying in a Democracy is only effective if it is secret and under strict control. At least that is the premise of authorities before, and after, the word "democracy" becomes a joke due to abuses of spy powers. I was listening to Press Secretary Carney as he was asked about NSA spying. His carefully worded answer was that:
MR. CARNEY: "Well, I think the article eventually explained we have made clear that under FAA 702, the NSA may not intentionally target a U.S. person. In carrying out its mission, NSA collects only what it is explicitly authorized to collect. And while NSA analysts examine only a very small percentage of the world’s traffic, if communications of U.S. persons are incidentally collected the agency must follow minimization procedures that are approved by the U.S. Attorney General and designed to protect the privacy of U.S. persons. Specifically, these procedures require NSA to minimize the acquisition processing, retention and dissemination of information of or concerning U.S. persons."
His answer was no difference from what Bush's Press Secretaries were saying. This of course is talking about the National Security Agency. And the problem is that reporters are asking the wrong question. Carney is absolutely right. NSA itself is not supposed to spy on US citizens. It's job is to spy on foreign threats. For spying on US citizens you have to look to other agencies and other programs, which piggyback on FISA and work with NSA, so that technically it's not the main NSA FISA program doing the spying. Carney can say:
"The purpose of the program is to investigate and potentially prevent terrorist threats emanating from foreign sources. And the protections in place regarding the inadvertent collection of information of U.S. citizens ensure that there's a minimized -- a process of minimization that protects the privacy of American citizens."
...and be perfectly misleading. The reporter, of course, already knows this is not the whole truth, so asked for a redirect in plain language about NSA listening/reading private citizen messages:
MR. CARNEY: "It's not being read. The information that is targeted has to do with terrorist threats or potential terrorist threats emanating from foreign persons in foreign areas. And there are procedures in place -- as I just described and I'm sure ODNI and others, NSA, can explain to you in greater detail -- that ensure that inadvertently collected information is minimized and dealt with appropriately.
The right questions are "are there other programs, beyond what NSA does, that do sift through private messages? Does the DEA have access to the so called "Corporate Store?" But Carney is probably forbidden to answer that question. Reporters have to be savvy enough to ask the right questions. What NSA does as NSA is the wrong question. And really they just need to do their homework. The white house press corps is supposed to be the best of the best. So far they've just shown they are the toadiest of a pack of toads.
Civil Liberties problem or PR problem?
Obama is almost breaking relations with Russia because he's sheltering Snowden. The irony of this is that we used to regularly harbor dissidents from the World oppression, the Russian Gulag and the Russian surveillance state, and we'd get super ticked if anyone threatened us for it. Russia is a sovereign state, and Snowden seeking assylum there is appropriate given that it is probably the only country that still is willing to stand up to us, he really does face torture and mistreatment when and if he ever returns to the USA, and Snowden did break the law but IS a whistleblower. If is he were a simple spy the USA government would probably get ticked and otherwise go "ho hum" that's the spy game. They are ticked at Snowden because he did blow the whistle on some programs that directly violate the constitution, directly violate liberal (not libertarian --that is a brand rustling counterfeiter operation) traditions, and traditions of free speech and good government. If Snowden were so wrong the President wouldn't have felt it necessary to give a speech affirming respect for due process, privacy, and individual civil rights
So the President gave a speech where he "highlighted his commitment to the balance between “protecting our security and preserving our freedoms" and announced his plans for increased transparency and reforms in our intelligence programs, in order to give the public confidence that these programs have strong oversight and clear protections against abuse:
"The American people need to have confidence in them as well. And that's why, over the last few weeks, I’ve consulted members of Congress who come at this issue from many different perspectives. I’ve asked the Privacy and Civil Liberties Oversight Board to review where our counterterrorism efforts and our values come into tension, and I directed my national security team to be more transparent and to pursue reforms of our laws and practices."
He wouldn't have called for "appropriate reforms" of FISA and NSA if Snowden hadn't embarrassed him.
Infowars, Infragard, Fusion Centers and State Control
In his speech he agreed that the secret courts shall have a secret defense bar to represent those who don't know they are being spied on, probably as well as public defenders defend accused criminals in most states. Personally I'm not impressed. This looks like a PR move, and the center of abuses isn't at the Federal level anyway, it's at the State Level and it is centered on Fusion Centers and programs like Infragard, where these same national agencies work with State and local police, private and State agencies, and fight crime, "terrorism", "unrest", drugs, and whatever the pet Peeve of the local governor is; all with access to databases that originally were supposed to be for spying on spies only.
Fact is, as I alluded to the other day in "Bush's Loogie", General Hayden, Bill Casey, and others envisioned a public-private security capability that could focus on domestic spying and operate under fewer restrictions than Government agencies operating under supervision of courts and officials afraid of their shadow. but of course, courts need judicial oversight too;
The real problem is not the government going after Al Qaeda or actual terrorist groups. It is when they use the resources of a spy/police state to attack citizens trying to live within their lives and pursue their private affairs. Not everyone is a criminal, but for police and spy types, everyone is suspect until cleared. When prosecutorial forces are allowed to run free, the burden of proof for criminality becomes "can you prove your are innocent" or not. And since no human being is completely innocent, that means that no human being can be secure from a spy state. Spying Metastasizes. Moreover, spy states become so single mindedly obsessed about enemies and potential enemies that they will shut down or attack anything that gets in the way of their operations. And they will use their powers of official secrecy to criminalize efforts for such institutions to defend themselves from them. This is going on here. Yesterday, Lavabit, an internet email supplier shut down rather than comply with a secret court order:
http://www.theguardian.com/commentisfree/2013/aug/09/lavabit-shutdown-snowden-silicon-valley Greenwald writes (it's also in Forbes and other articles):
"A Texas-based encrypted email service recently revealed to be used by Edward Snowden - Lavabit - announced yesterday it was shutting itself down in order to avoid complying with what it perceives as unjust secret US court orders to provide government access to its users' content. "After significant soul searching, I have decided to suspend operations," the company's founder, Ladar Levinson, wrote in a statement to users posted on the front page of its website. He said the US directive forced on his company "a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit." He chose the latter.
And so, will it really save us from the security forces if the secret courts have a secret defense, secret court orders, gag the ones they serve, and make it criminal to complain?
"CNET's Declan McCullagh smartly speculates that Lavabit was served "with [a] federal court order to intercept users' (Snowden?) passwords" to allow ongoing monitoring of emails; specifically: "the order can also be to install FedGov-created malware." After challenging the order in district court and losing - all in a secret court proceeding, naturally - Lavabit shut itself down to avoid compliance while it appeals to the Fourth Circuit.
So, here we have secret courts (presumably FISC court, but possibly just district courts) ordering secret behavior aimed, not at going after Foreign operatives, but going after an alleged "spy", Snowden, who most people would label more a whistleblower. And from the record around this, they probably were trying to force Lavabit to put in malware that would give them access not just to Snowden's email, but to all email clients of Lavabit. We are used to hearing of "black hatted" hackers sticking malware on our computers, but here it is the government doing it.
"This morning, Silent Circle, a US-based secure online communication service, followed suit by shutting its own encrypted email service. Although it said it had not yet been served with any court order, the company, in a statement by its founder, internet security guru Phil Zimmerman, said: "We see the writing on the wall, and we have decided that it is best for us to shut down Silent Mail now."
And Glenn Greenwald comments (which I agree with):
What is particularly creepy about the Lavabit self-shutdown is that the company is gagged by law even from discussing the legal challenges it has mounted and the court proceeding it has engaged. In other words, the American owner of the company believes his Constitutional rights and those of his customers are being violated by the US Government, but he is not allowed to talk about it. Just as is true for people who receive National Security Letters under the Patriot Act, Lavabit has been told that they would face serious criminal sanctions if they publicly discuss what is being done to their company. Thus we get hostage-message-sounding missives like this:
He then shares this from Lavabit:
I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what's going on - the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests."
So between court gag orders and congress gagging those who they force to cooperate. Do we really have anything less than a police state? Forbes reports:
“As a Dallas company, we weren’t really equipped to respond to this inquiry. The government knew that,” said Levison, who drew parallels with the prosecutorial bullying of Aaron Swartz. “The same kinds of things have happened to me. The government tried to bully me, and [my lawyer] has been instrumental in protecting me, but it’s amazing the lengths they’ve gone to to accomplish their goals.”
Putting courts over spy programs actually just corrupts the courts, as long as secrecy is the rule. Separation of powers becomes a joke when Judges, prosecutors, and spies are all part of the same enterprise. Rule of law becomes less protective of privacy and rights than a string thong at at a mens club.
That is enough for this post. I drafted it yesterday. But the information is too depressing. Aaron Swartz was driven to suicide by a prosecution that was going to put him in jail for the rest of his life for challenging a private company's (JStore) usurpation of information that belongs in the public domain (and libraries). And "that's not all!". More to come.
Further Readings and links used in this post:
- Sources and Further Readings:
- http://www.whitehouse.gov/the-press- office/2013/08/09/press-briefing-press-secretary-jay-carney-882013
- http://www.whitehouse.gov/blog/2013/08/09/protecting-our- security-and-preserving-our-freedoms
- Bush's Loogie: http://holtesthoughts.blogspot.com/2013/08/bushs-loogie.html
- Forbes Editorial:http://www.forbes.com/sites/kashmirhill/2013/08/09/lavabits-ladar-levison-if-you-knew-what-i-know-about-email-you-might-not-use-it/
- Forbes Lavabit article: http://www.forbes.com/sites/kashmirhill/2013/08/08/email-company-reportedly-used-by-edward-snowden-shuts-down-rather-than-hand-data-over-to-feds/
- Guardian Articlehttp://www.theguardian.com/commentisfree/2013/aug/09/lavabit-shutdown-snowden-silicon-valley