Monthly Archives: August 2013

In National Security, Obama Minimizes Role of Courts

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In matters of national security, the Obama administration’s disrespect for the courts can be seen in three examples.

  1. In 2012, the relatives of two United States citizens killed by drones filed a lawsuit charging that the deaths were unconstitutional. Defending the government in court, deputy assistant attorney general Brian Hauck argued that the courts have no role to play in judging political assassinations. Americans’ right to life, he claimed, cannot be enforced either before or after the targets were killed.  He further argued that “Courts don’t have the apparatus to analyze” issues such as political assassination, and that such decisions must be handled entirely by the executive branch. As Glenn Greenwald put it, you have rights, “It’s just that nobody can enforce them or do anything to us (the government) when we violate them”.
  2. In July 2012, Senator Ron Wyden (D-Ore.), a member of the Senate Intelligence Committee, learned that the FISA court had ruled at least part of the administration’s surveillance to be unconstitutional.  When the Electronic Frontier Foundation filed a Freedom of Information Act request for said court opinion, it was given the run-around by the DoJ.  The DoJ took four months to respond to the request, and their eventual response was that the opinion was classified.  Apparently even when the administration is caught red-handed doing something unconstitutional, the American people aren’t allowed to know what it is.
  3. If the NSA wants to gather information on a target, they have to go through the FISA court—but they can determine for themselves when the court’s requirements have been met.  They submit the general guidelines for their request—not including the specific targets—and the FISA court then approves those guidelines.  The NSA then determines, for itself, whether or not its investigation stays within the bounds of the guidelines.  Now it’s possible that they are Constitutional hawks who stay strictly within the bounds of the FISA court’s guidelines.  But, given the Obama administration’s willingness to redefine key legal language, I’m inclined to doubt such a claim.  And it seems unlikely the NSA will be coming forward anytime soon to add more transparency to their dealings.

I’m not going to venture into hyperbole and start calling our president “King Obama”.  I’m not penning any sort of broad expose of the relationship of the executive branch and the judicial branch.  But these three cases do indicate that, when it comes to national security, Obama prefers to keep the courts out.

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Three Degrees of NSA

Screen Shot 2013-08-01 at 8.07.01 PMIn the wake of Edward Snowden’s NSA-related links, defenders of the program are claiming that the program’s narrowly tailored and only targets terrorists and associates.  For instance, Marc Thiessen of the Washington Post described the NSA’s surveillance as putting together a “field of dots”, where each dot represents a person.  “If you are not communicating with (a) terrorist”, he writes, “your dot is not touched”.   This same claim has been repeated a dozen times by different defenders of the program.

But statements like these are only true if you’re willing to radically redefine “communicating with”.  Testifying to Congress, National Security Agency Deputy Director Chris Inglis discussed how the NSA might use a “three-hop” query to decide who to investigate.  What this means is that the NSA can examine people who communicate with the terrorists (one hop) and then everyone who communicates with that person (two hops) and then everyone who communicates with anyone in that second circle (three hops).

Here’s how that might play out in the real world.  Let’s say your buddy’s a journalist who interviews—not a terrorist—but the friends and family of a dead terrorist (as the New York Times did when they ran a story on Samir Khan).  That right there is two hops.  So they’ll automatically investigate your buddy’s data, even though he didn’t actually talk to a terrorist.  But because the NSA uses a three-hop system, they would then examine your data, as well as that of anyone else your buddy happened to call, email, or IM.

But let’s take this farther.  Let’s say that your buddy happened to actually interview a suspected terrorist.  That’s one hop.  You’re the second hop, along with everyone else your buddy spoke to.  The third hop is all of your friends and family, and the friends and family of everyone else who ever spoke to your buddy.

Washington’s Blog lays out the math: “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”.

This is like that old game “Six Degrees of Kevin Bacon”: it’s “Three Degrees of NSA”.  Only, if you win, you get to have your phone calls (and emails, and Facebook chats) monitored by the government.  Is the NSA’s dragnet spying a program we want to live under?