The Vindication of Edward Snowden May 12, 2015Posted by rogerhollander in Constitution, Criminal Justice, Democracy, Surveillance, Surveillance State, Whistle-blowing.
Tags: aclu, bulk surveillance, conor friedersdorf, constitution, edward snowden, nsa, nsa secrets, patriot act, phone dragnet, roger hollander, state secrets, surveillance state, whistle blower, whistleblower
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Roger’s note: I suppose, at least in theory, there may be a justification for a “state secrets” doctrine. I could picture an extreme circumstance where the democratic right of the people and their representatives to know could be trumped because making information public could aid and abet an enemy in an imminently dangerous way. Nevertheless, that doctrine has been used and abused over and over again to evade accountability; and I am not aware of a single case where it was used to avoid an actual danger.
But with respect to “legality,” I have often referred to a speech given many years ago by the notable civil liberties lawyer William Kunstler, which showed how some of the most noteworthy crimes in history — from the executions of Socrates and Jesus to the Nazi Holocaust — have been perpetrated under the color of “the Law.” My point is that men (sic) make the laws and the victors write the history. Take the issue under consideration in the following article, Snowden’s uncovering of NSA bulk surveillance. A federal appeals court says it is illegal. This will be appealed to the Supreme Court, which could well reverse with the result that was illegal one day becomes legal the next.
The Law and the judicial system are sacred and not to be taken lightly. But in the final analysis, it comes down who holds political and economic and military power. And in our world today those who own and operate monopoly capitalism are in the driver’s seat. Justice will not come about until they are dislodged.
A federal appeals court has ruled that one of the NSA programs he exposed was illegal.
Mark Blinch / Reuters
Conor Friedersdorf May 11, 2015 http://www.theatlantic.com
Edward Snowden’s most famous leak has just been vindicated. Since June 2013, when he revealed that the telephone calls of Americans are being logged en masse, his critics have charged that he took it upon himself to expose a lawful secret. They insisted that Congress authorized the phone dragnet when it passed the U.S.A. Patriot Act, citing Section 215, a part of the law that pertains to business records.
That claim was always suspect. The text of the law does not seem to authorize mass surveillance. A primary author and longtime champion of the law avows that Congress never intended to authorize the phone dragnet. And nothing like it was ever discussed during an extensive, controversy-filled debate about its provisions.
Now the wrongheadedness of the national-security state’s position has been confirmed.
A panel of judges on the Second Circuit Court of Appeals ruled last week that the program Snowden exposed was never legal. The Patriot Act does not authorize it, contrary to the claims of George W. Bush, Barack Obama, Michael Hayden, Keith Alexander, and James Clapper. “Statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here,” Judge Gerard E. Lynch declared. “The sheer volume of information sought is staggering.”
Other conclusions reached by the three-judge panel include the following:
“The interpretation that the government asks us to adopt defies any limiting principle.”
“We would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language.There is no evidence of such a debate …”
“Congress cannot reasonably be said to have ratified a program of which many members of Congress—and all members of the public—were not aware … only a limited subset of members of Congress had a comprehensive understanding of the program…”
“Finding the government’s interpretation of the statute to have been ‘legislatively ratified’ under these circumstances would ignore reality.”
Consider what this means.
Telling the public about the phone dragnet didn’t expose a legitimate state secret. It exposed a violation of the constitutional order. For many years, the executive branch carried out a hugely consequential policy change that the legislature never approved. Tens of millions of innocent U.S. citizens were thus subject to invasions of privacy that no law authorized. And the NSA’s unlawful behavior would’ve continued, unknown to the public and unreviewed by Article III courts, but for Snowden’s leak, which caused the ACLU to challenge the illegal NSA program.
Snowden undeniably violated his promise to keep the NSA’s secrets.
But doing so was the only way to fulfill his higher obligation to protect and defend the Constitution, which was being violated by an executive branch exceeding its rightful authority and usurping the lawmaking function that belongs to the legislature. This analysis pertains only to the leaked documents that exposed the phone dragnet, not the whole trove of Snowden leaks, but with respect to that one set of documents there ought to be unanimous support for pardoning his disclosure.
Any punishment for revealing the phone dragnet would be unjust.
Now that a federal appeals court has found that Section 215 of the Patriot Act did not in fact authorize the policy, punishing a man for exposing the program would set this precedent: Whistleblowers will be punished for revealing illegal surveillance. That’s the position anyone who still wants Snowden prosecuted for that leak must take, if the ruling stands. (Other federal courts have issued rulings pointing in contrary directions, and this latest ruling will likely be appealed.)
Does the PATRIOT Act Allow Bulk Surveillance?
Consider how this federal court ruling informs the debate over state secrets generally. Civil libertarians have long warned that secret national-security policies undermine both representative democracy and our system of checks and balances.
And that is exactly what happened with respect to the phone dragnet!
NSA Intercepting Laptops Bought Online to Install Spy Malware December 30, 2013Posted by rogerhollander in Civil Liberties, Constitution, Surveillance, Surveillance State.
Tags: fourth amendment, nsa, nsa hackers, right to privacy, roger hollander, spy malware, surveillance, surveillance state, tailored access, tao
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Roger’s note: I think George Orwell underestimated the problem. According to Glenn Greenwald, “The NSA can literally watch every keystroke you make.”
The NSA’s TAO hacking unit is considered to be the intelligence agency’s top secret weapon
Germany’s Der Spiegel is reporting Sunday that the US National Security Agency (NSA), working with the CIA and FBI, has been intercepting laptops and other electronics bought online before delivery to install malware and other spying tools.
According to Der Spiegel, the NSA diverts shipping deliveries to its own “secret workshops” to install the software before resending the deliveries to their purchasers.
Elite hackers working for the NSA’s Tailored Access Operations (TAO) division are considered to be the intelligence agency’s top secret weapon.
The NSA’s TAO reportedly has backdoor access to many hardware and software systems from major tech companies such as Cisco, Dell, and Western Digital and others. The NSA exploits Microsoft Windows error reports to find weak spots in compromised machines in order to install Trojans and other viruses.
The Der Spiegel report also notes that the NSA has successfully tapped into some of the massive, under-sea fiber-optic cables that connect the global data infrastructure, in particular the “SEA-ME-WE-4″ cable system.
“This massive underwater cable bundle connects Europe with North Africa and the Gulf states and then continues on through Pakistan and India,” Der Spiegel reports, ”all the way to Malaysia and Thailand. The cable system originates in southern France, near Marseille. Among the companies that hold ownership stakes in it are France Telecom, now known as Orange and still partly government-owned, and Telecom Italia Sparkle.”
From Der Spiegel:
To conduct those types of operations, the NSA works together with other intelligence agencies such as the CIA and FBI, which in turn maintain informants on location who are available to help with sensitive missions. This enables TAO to attack even isolated networks that aren’t connected to the Internet. If necessary, the FBI can even make an agency-owned jet available to ferry the high-tech plumbers to their target. This gets them to their destination at the right time and can help them to disappear again undetected after even as little as a half hour’s work.
Responding to a query from SPIEGEL, NSA officials issued a statement saying, “Tailored Access Operations is a unique national asset that is on the front lines of enabling NSA to defend the nation and its allies.” The statement added that TAO’s “work is centered on computer network exploitation in support of foreign intelligence collection.” The officials said they would not discuss specific allegations regarding TAO’s mission.
Sometimes it appears that the world’s most modern spies are just as reliant on conventional methods of reconnaissance as their predecessors.
Take, for example, when they intercept shipping deliveries. If a target person, agency or company orders a new computer or related accessories, for example, TAO can divert the shipping delivery to its own secret workshops. The NSA calls this method interdiction. At these so-called “load stations,” agents carefully open the package in order to load malware onto the electronics, or even install hardware components that can provide backdoor access for the intelligence agencies. All subsequent steps can then be conducted from the comfort of a remote computer.
These minor disruptions in the parcel shipping business rank among the “most productive operations” conducted by the NSA hackers, one top secret document relates in enthusiastic terms. This method, the presentation continues, allows TAO to obtain access to networks “around the world.”
Even in the Internet Age, some traditional spying methods continue to live on.
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Ongoing NSA work August 30, 2013Posted by rogerhollander in Barack Obama, Civil Liberties, Constitution, Media, Surveillance, War.
Tags: candidate obama, chemical weapons, constitution, glenn greenwald, illegal surveillance, journalism, laura poitras, Media, nsa, president obama, press freedom, roger hollander, surveillance state, Syria, war
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Roger’s note: Watch the video at the bottom of this article, it is precious. Do you still love Obama?
Anti-journalism journalists, US/UK attacks on press freedom, and candidate Obama on non-authorized military attacks
For the past seven-plus years, I’ve written more or less every day. That pattern has obviously changed over the last three months, during which time my posting has been more infrequent. That’s because I’ve been prioritizing my work on these NSA documents and articles, which take a fair amount of time to process, report and then write. I’m currently working on several NSA/GCHQ stories at once right now that I expect to be published shortly, so daily writing will likely not resume for a couple more weeks or so.
I’ll try to post something new here at least once every 3 days, if for no other reason than to ensure that the comment section remains open. In the meantime, here are several items worth considering:
(1) The New York Times’ David Carr has an excellent column on what drives the very odd phenomenon that the leading advocates for attacking and even criminalizing journalism come not from the government but from . . . certain journalists.
(2) In Der Spiegel, Laura Poitras has a column on the “blatant attacks on press freedoms” coming from the UK and their superiors in the US national security state.
(3) NYU Journalism Professor Jay Rosen has a great essay on the lessons about journalism revealed by the NSA stories, concluding: “Journalism almost has to be brought closer to activism to stand a chance of prevailing in its current struggle with the state.”
(4) In 2008, President Obama, when he was a candidate for President, had this question-and-answer exchange with the Boston Globe:
“Q. In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites — a situation that does not involve stopping an IMMINENT threat?)
“OBAMA: The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.
“As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent.”
Given that not even the most ardent interventionists for Syria contend that the bombing is necessary for US national security, how can a military attack on Syria without Congressional approval possibly be reconciled with that position? When the same issue arose with Obama’s war in Libya in the absence of Congressional approval (indeed, after Congress expressly rejected its authorization), State Department adviser Harold Koh was forced to repudiate Obama’s own words and say he was wrong back then. Who will play that role this time? As is so often the case, there is a much starker debate between candidate Obama and President Obama than there is between the leadership of both political parties in Washington: