Respectfully submitted by Lawrence E. Rafferty (rafflaw) Weekend Contributor
The instances of reported abuse of our country’s laws by our Intelligence services seems never-ending. The National Security Agency, or NSA is at the top of the list when it comes to violations of our laws and even its own rules and procedures that are allegedly designed to protect our privacy.
Pursuant to a court order in a case brought by the ACLU, the NSA is required to provide a list of its abuses on a quarterly basis. Of course, the NSA redacts most of what it puts in its own disclosures.
“Every quarter, the National Security Agency generates a report on its own lawbreaking and policy violations. The reports are classified and sent to the President’s Intelligence Oversight Board. It’s unclear what happens once they get there.
Those reports are now online dating back to late 2001.
The NSA has posted redacted versions of the documents to its website. “These materials show, over a sustained period of time, the depth and rigor of NSA’s commitment to compliance,” the agency’s self-congratulatory introduction declares. “By emphasizing accountability across all levels of the enterprise, and transparently reporting errors and violations to outside oversight authorities, NSA protects privacy and civil liberties while safeguarding the nation and our allies.”
These NSA characterizations are not credible.
Even the uninformed observer will be suspicious of the spy agency’s account upon learning that far from voluntarily releasing redacted versions of these documents, it was forced to do so by Freedom of Information Act requests filed by the ACLU. The NSA fought to continue suppressing these documents from the public, even though the redacted versions in no way harm U.S. national security. A court ordered the documents released.” Reader Supported News
Only in Washington, D.C., would anyone, let alone a government agency, claim it is being transparent in reporting its mistakes, when it refused to release a listing of those “errors” until a court ordered them to do so! This is the same agency that the New York Times disclosed in February of 2014 was caught spying on American attorneys working on behalf of a foreign government.
Professor Turley discussed this case here. It shouldn’t surprise anyone that this willful violation of the law was only learned through the Snowden document disclosures. So much for willing transparency.
The NSA has been caught violating a client’s right to discuss their legal case with their attorneys in private and numerous instances of spying on individual citizens and what repercussions have resulted? It is hard to find any substantial penalties or sanctions due to exposed or disclosed illegal activities by the NSA.
To further the point that the NSA seems immune to prosecution or sanctions for its illegal activities is one case that was uncovered in the quarterly reports discussed earlier.
“For the most part, the reports don’t appear to contain anything especially new, but I was struck by this particular violation:
The OIG’s Office of Investigation initiated an investigation of an allegation than an NSA analyst had conducted an unauthorized intelligence activity. In an interview conducted by the NSA/CSS Office of Security and Counterintelligence, the analyst reported that, during the past two or three years, she had searched her spouse’s personal telephone directory without his knowledge to obtain names and telephone numbers for targeting….Although the investigation is ongoing, the analyst has been advised to cease her activities.
Wait a second. She was caught using NSA surveillance facilities to spy on her husband and was merely told to cease her activities? Wouldn’t it be more appropriate to, say, fire her instantly and bar her from possessing any kind of security clearance ever again in her life? What am I missing here?” Mother Jones
While the idea of spying on a spouse or maybe a significant other might not be a danger to National Security, it is still an obvious violation of the law, or at the least, a violation of the NSA’s rules that this analyst was supposed to be working under. As the Mother Jones link above suggests, shouldn’t this analyst be fired or maybe, God forbid, be prosecuted for illegally spying?
Who can forget the case Professor Turley discussed in 2009 when it was discovered that the NSA was illegally attempting to wiretap members of Congress? Of course, Congress was outraged, just like Sen. Diane Feinstein was outraged when it was discovered that the CIA has been spying on the Senate’s computers.
Of course heads rolled when the CIA admitted hacking into Senate computers, right? Uh, no, just a few apologies and the Senate moved on. The same immunity to the law and to common sense can be found at the NSA.
What do we have to do to bring the NSA into legal bounds and prevent illegal and unauthorized spying on ordinary citizens and other agencies and branches of the government while at the same time acknowledging our need to spy on legitimate enemies?
It seems obvious to this observer that the internal controls that are in place at the NSA are ineffective at best and likely useless at worst. Can The NSA or any intelligence agency investigate itself? Are internal agency watchdogs a waste of time?
Would a civilian agency or board set up to oversee these rogue intelligence agencies be useful in bringing these agencies into compliance, and is that even possible in our current political climate?
A quick review before the pop quiz; the NSA admits to spying illegally and not doing anything about it and there are no repercussions. How stupid are we to allow this to happen?
Additional Source: Bloomberg
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Paul:
If the U.S. Supreme Court corrects it’s 4th Amendment rulings it created during the 1970’s War on Drugs (which could be likely post-9/11) – grab the popcorn!
In my view the high court’s faulty ruling on the 4th Amendment in the late 1960’s and 1970’s is in the league of errors like legalizing racial segregation and Citizen’s United. The dissenting USC opinions during the late 1960’s and 1970’s are excellent reading and predicted many of our problems today.
Anyone, lawyer or layman, that reads the letter & spirit of the 4th Amendment would disagree with those previous rulings. It’s wording is very clear and precise unlike other amendments. Instead of perverting the meaning of the 4th Amendment in the late 1960’s/70’s – opponents should have tried to amend it instead.
The 4th Amendment was never intended as a machine to “manufacture” probable cause where none previously existed. That exercise is called a “fishing expedition”. Trying to manufacture evidence not based on a real crime.
My prediction is that the U.S. Supreme Court will be correcting it in the near future due to the post-9/11 abuses.
What’s the most significant difference between the 18th and 21st century American? IMO the 18th century American understood unalienable rights and the fundamental purpose for government. We have been piling up our own list of grievances as we ‘progress’ towards the pre-declaration state of oppressive government but generally lack the enlightenment necessary to do anything about it. What good is equality if we are to experience it under the thumb of a tyranny?
Is this truth self-evident?
“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
Paul:
In all law, including constitutional law and international law, there is a centuries old legal tradition called the “Fruit of the Poisonous Tree Doctrine”.
It is actually similar to the construction of a building – if the “foundation” of the building is not solid and has no integrity – everything built upon that flawed foundation will tilt over or fall down also. It’s tainted in other words.
That is essentially what the so-called War on Terror is all about – domestically it’s not built upon probable cause and internationally it’s not built upon solid evidence. That’s the reason most Guantanamo prisoners have been released without charge and are asking for compensation. One former torture victim is merely asking for an official apology.
The national security agencies have wanted these unchecked powers for several decades. The predicament they have created for themselves is using post-9/11 “TERRORISM” laws on pre-9/11 “NON-TERRORISM” cases.
It get’s worse: Some of those pre-9/11 “NON-TERRORISM” cases date back to the 1980’s or earlier and involve U.S. citizens on U.S. soil with no links to terrorism at all. In other words likely the biggest criminal cases since the 1980’s are now tainted by the DOJ and local police agencies since they exploited terrorism laws.
My point with your earlier post was we would have never been torturing in the first place if the national security agencies had done their jobs before 9/11. It seems appropriate to put first things first and fix the dysfunctional bureaucracies which created the torture policies in the first place.
Ross – Fruit of the Poisonous Tree only works if you are using the evidence in court, not if you are using the evidence to track down terrorists.
Paul:
The fact is the 9/11 attacks could have (and should have) been totally prevented with existing intelligence and existing authorities. In fact the NSA was spying illegally about 6 months before 9/11 and those are the powers they claimed were needed to be made legal – they were already doing it illegally (testimony by Joseph Nacchio of Qwest Communications/Washington Post).
This “foundation” is what justified torture, Patriot Act and our unconstitutional preemption doctrine in the first place.
Best case: Good intentions of agency employees with a gigantic and dysfunctional bureaucracy. Solution – don’t make it bigger with greater authorities.
Worst case: Intentional fraud and criminality by agency leaders.
Either way: big, dysfunctional and unconstitutional bureaucracies are our greatest threat to American government, American values and the American people – not punishing the wrong people.
As Amnesty International has documented: a careless drone policy killing grandmothers and children outside of a war zone does indeed create more enemies and ill will toward Americans. We are creating more terrorists every day who were not our enemies.
When Bush disbanded the entire Iraqi government including the rank & file military and civil servants – that act alone created a huge number of American enemies and terrorists that didn’t previously exist. The documentary “No End In Sight” is composed almost exclusively of Republicans that served in the Bush Administration, this is not a liberal documentary but the testimony of conservatives about what happened.
Ross – stick to one subject at a time. Which do you want to discuss?
One huge point the mainstream press organizations have missed is it has allowed the surveillance industry to portray “domestic spying” as passive and harmless.
What do you think happened to innocent Americans and others on these watch-lists starting on September 12, 2001? It still mostly stamped “SECRET” but we do know from the unclassified reports that innocent people and their families were destroyed financially and even killed without charge, trial or guilty verdict.
These blacklists are shared with local, state and even international intelligence and police agencies. These dossiers in the computer age are a life sentence of punishment without charge, trial or guilty verdict.
How do you think a local “Barney Fife” (not properly trained) has been treating his neighbors and fellow citizens since September 12, 2001?
This is the danger of mission-creep with excessive secrecy. Most press organizations and even most federal judges (watchdogs) seem totally uninterested in this genuine tyranny.
Re would I use torture to save an innocent member of my family…?
Absolutely not. This strawman question assumes that the torturer KNOWs his prisoner can save them and that torture will somehow reveal the answer. I consider this sloppy thinking because such a situation could never actually occur so is hardly a valid justification. Would you torture hundreds of innocent people on the chance that one might reveal some useful information? How will you know when this prisoner is telling the truth?
Re torture worked for the Nazi’s and the Stazi…
In what way did it “work” for these failed states? Are these really models we want to emulate?
Peter S – the statement was that torture never works, which is not true. Torture does work, but the results are inconsistent.
@Paul S
While some argue it “works” in isolated cases, as a policy it’s still a disaster. Is stopping one “terrorist” at the price of creating 10 more a policy that “works” to fight terrorism? Even in the most isolated cases, the claims that it “works” are rarely if ever supported by evidence. It was Ronald Reagan who signed the treaty bannning torture. Does lawlessness work at spreading peace and democracy?
psichel – the creating of ten more terrorists is just anecdotal. They were already terrorists. The idea is to get actionable intelligence. Actually ‘bad cop, good cop’ is a form of torture. Or threatening to sent the prisoner to Gitmo if they do not give up intelligence, or saying they will never see their children again, etc.
Issac said…
What the first war should have explained to the three stooges was that the country was crying out for getting out from under Saddam’s boot heels.
Your opinion mirrors that of the Iraqi refugees that live near me. What else can I say?
Father Mike/Canon for Vets said …
the 4th INFANTRY DIVISION had to go all the way around …
True enough, thanks to the Turks. However, elements of the 173rd Airborne Combat Brigade parachuted in to northern Iraq none the less…out of Italy. Light infantry again doing the job of heavy infantry. Were I the enemy I’d much prefer the regular grunts compared to “The Herd.” Last thing any enemy should hope for is a visit from “The Herd.”
I cannot talk about Rumsfeld or Cheney, and their concept of military operations, and not make myself out to be a foul mouthed jerk.
Paul
The war was fine up until a week or two after they won. From then on it was total incompetence from the three stooges. In the first place the war was not necessary. The world’s strongest military against one of the world’s weakest; it was not the invasion and take over that is at question it is the brackets: the fact that before the fact it was just an arrogance and after the fact it was totally bungled. There was no plan.
What the first war should have explained to the three stooges was that the country was crying out for getting out from under Saddam’s boot heels.
as mentioned earlier. There are two Sec Defs who should have been sent to prison.
Re. GWII , Rummy kept going through generals over how much and how many it would take to win and keep the win. Finally a general took the reigns, somebody had to try to make the best of it. Then something happened that messed even the final plan….the 4th INFANTRY DIVISION had to go all the way around to get to the fight, but the fight was on, and through no fault of their own, they were late to the fight. A whole division!!!
Remember we sent Hummers without armor and convoys without escorts. Bradley’s were made for the purpose but they were too expensive to procure in numbers necessary. So sergeants doing what sergeants do, started finding anything they could to slap on the sides of the Hummers.
At least with a fiberglass jet boat PBR, YOU COULD GUN THE ENGINES AND GET OUT, Trundle down a road in line in a thin walled vehicle and take RPGs and AK fire?
GWII was Rummy’s. GBII was at the helm officially. Powell was furious. Cheney? Whole ‘nother story.
Rummy knew how to ask the question in a manner that he could then take the answer to his boss that the generals have what they need. It is akin to —- this is what you need, you have that…now… Do you have what I told you you need?
Something I have not seen mentioned re.
The WMDs.
1. We are now treating many of our soldiers who have been poisoned by the buried caches they have come across. Old ones…but still caches..
2. Records revealed that Saddam could not see a way to comply with the WMD demands. If he had, that meant Iran would know and Iran was so equipped. Saddam’s military was very adept at the deception…it had to be. Now who would have even dared to get in the middle of that street fight? Anybody who knows Saddam’s background knows him to be a merciless monster and so were his sons. He was a more up to date version of Satan. Better than Hitler or Stalin. Looked like a very modern man, well groomed, well dressed, and absolutely evil personified. Not like the guy in “Legends.”
In some sense the WMD thing reminds me of the pre-D Day balsa wood and inflatable division (can’t remember the exact nomenclature…Army, Corps or Division) under Patton’s pretend command across from France to draw Panzer defenses north of Normandy. Indeed, the Germans could not fathom the sidelining of Patton…taking him out of the war had to be a ruse.
Wherever one stands on the yellowcake and all that? That monster was trapped and he built it. Watcha gonna do when they come for you?
Paul
Aside from not having to invade Iraq, when they did, they stalled with no concept of how to follow up. Hospitals were ransacked while US forces looked on, gangs of looters roamed the streets while US forces were told to hold the intersections only, Bagdad fell into chaos during an eight month period when the geniuses back in Washington were trying to figure out what to do. It was this chaos and during this time that the insurgent problem was born. This was the time then the Mullahs created their militias to take over in the void created by the three stooges. Neighborhoods became enclaves and then impossible to control. It’s all there in the newspapers, reported as it happened.
Then to top that Brenner or some other idiot disbanded the army. Now a potential policing force was eliminated, all 500,000 of them. Instead 500,000 men were out of a job and armed to the teeth, lose on the streets. Smart eh? It is clear and will become historically clear, not hindsight, that the three stooges had not thought this out very well. They ignored all of the advice of those experienced from Viet Nam. They bungled the war. The result is theirs.
Now if they had of taken the advice and done a proper job straight away as was described by those experienced from Viet Nam, in Afghanistan the resulting level of success would have set a precedent for Saddam. Khadafi got the message and halted his threats. You can say the Khadafi saw what happened to Iraq but what if he had seen the result of an intelligent success instead of a chaotic rampage.
If, as was suggested before and during the Afghanistan debacle, the three stooges had simply extended the no fly zones to cover all of Iraq, surgically bombed the military objectives, the objectives that supported the military leaders, the military leaders would have had the incentive to wax Saddam. You are forgetting that that is how Saddam came to power, Khadafi came to power, Gamel Nasser came to power, etc. The US with or without GB could have easily set the scene for a coup. If that didn’t work they could have escalated and even invaded. Between the arrogant incompetence of invasion with no plan and allowing the local leaders to develop their militias, the whole Iraq debacle was one of the worst conceived, worst executed fiascos in American History.
Furthermore there is little to slap the back for in the taking of a beat up country by the world’s foremost military power. Iraq’s air force was pretty much scrap. The hundred or so airplanes that made it into the air beat it to Iran to hide out. They were all fourth and fifth level fighters. The US could have taken them out in a matter of days.
Saddam’s million man army was already disillusioned by the whooping they took in the first war after they beat it out of Kuwait. The mob they turned into could have been rolled back into Bagdad and the government overthrown but for greater global politics. What was done the second time could have been done the first time. There were dozens of countries involved.
The blame is not on the military. The blame is on the vacuous arrogance of the three stooges. Cheney and Rumsfeld and of course Bush being a straw man went along, thought that every Iraqi had an American flag rolled up under their bed. The key words were shock and awe. The problem is that how long can you keep up the shocking and awing? Just as in Viet Nam the leaders of the greatest military the world has ever seen simply thought with their di*ks or perhaps just didn’t think at all.
The advice from the knowledgeable was ‘know your enemy, take over completely, rebuild quickly, and know when and how to leave.’ The three stooges in their arrogant incompetence ignored all of this. Voila, the mess.
issac – the war was fine, better than fine. The peace was a shambles because Brenner made just about every mistake you could make. And the deal with the first war was they just pushed Iraq out of Kuwait. That was the deal with the Arab partners.
Psichel,
Would you deny the use of torture to save an innocent member of your family if EVERY other legal option had been exhausted? Yes or No?
Re: “Sometimes ya gotta do what ya gotta do”
As a ratified treaty, the ban on torture has the same legal standing as the constitution itself. The law is clear, no coercive means what-so-ever are permitted. The reason the ban is so total and unequivocal is that our long experience shows that torture does not work. It provides bad information and is counter-productive.
1. Torture doesn’t work. Detainees will say what the interrogator wants to hear. Since the interrogator doesn’t know if there really is a ticking time bomb or if the information is accurate, they will escalate the treatment in an attempt to gain better information while disregarding important clues already available. The CIA’s own investigation concluded that torture did not work in 1989 long before the events of 9/11.
2. Torture is corrosive, sadistic, and counter productive. As interrogators push for better information, they go beyond established guidelines and cross the line into sadistic and cruel treatment. It can’t be controlled. The CIAs own records show that some detainees were tortured for no reason before other interrogation methods were even tried. Torture is counter productive because: (1) It provides bad information while distracting from more valuable clues; and (2) as Clausewitz observed, war is politics by other means. Torture does not fight terrorism, it creates more terrorists. You can kill the hater, but you can’t kill the hate.
There can be no political stability in any part of the world without building trust and consent from those who would be governed. Enhanced interrogation and the lawless mis-treatment of prisoners at Abu Grahib undermined our entire mission. We lost the wars in Iraq and Afghanistan in no small part due to our own criminal stupidity.
3. Torture is against our values and invites further terrorism and abuse of our own people.
4. The reason national leaders resort to torture is because they are frightened and desperate to give the appearance of being tough when they don’t know what to do. Ironically, their desperation reveals them to be weak. A truly strong leader does not need to hide behind lies and brutality. Torture is the weapon of the weak used by cowards.
In a political culture dominated by lies and deception, it’s easy to understand how many opinions on torture could be ill informed or clouded by emotion. The CIAs own internal documents reveal there is no evidence that enhanced interrogation played a significant role in preventing even a single attack. There are a lot of shills for the CIA (some in legal jeopardy) who will claim torture was justified, but there is no evidence to support this. What we do know is that Iraq no longer exists and cannot be put back together. ISIS is stronger than ever, and that the global war on terror has caused enormous suffering while making us less safe.
Torture should not be debated, it should be condemned like slavery and rape as one of the worst crimes any human can inflict upon another. Until we reject such abuses, they will continue.
psichel – torture does work, it just can be unreliable. The Gestapo made good use of torture as did the Stasi and KGB.
Olly … re: political courage. I honestly do not know. I hope so, but have reservations. Institutionalization in the teaming mass of the federal bureaucracy gives me great pause. “Sausage Making” may derail real progress.
“Of course, the most important set of actors in returning to constitutional governance is the American people. Hamilton’s words remind us that we, too, are to be guardians of the rule of law: “Until the people have, by some solemn and authoritative act, annulled or changed the established form [of the Constitution], it is binding upon themselves collectively, as well as individually . . .” This is our responsibility, but also our greatest security–against the abuses of our leaders . . . or the majority.”
http://thefederalist.com/2015/01/05/when-constitutionalism-is-a-dangerous-thing/
Aridog,
We’ll see how this Congress approaches their “purse” responsibilities. The people have spoken by vote or by abstention; will that give Congress the political courage to do what is constitutional?