ACLU vs. NSA

Dan Solove comments (two posts) on the recent ACLU vs. NSA decision regarding the NSA's illegal wiretapping activities.

Posted on July 12, 2007 at 7:38 AM • 20 Comments

Comments

AnonymousJuly 12, 2007 7:53 AM

I recall in the summer of 1966, as a new Air Force recruit, all basic trainees were split into small groups and placed in a room with headsets for each recruit. We were asked to listen to several sets of (a made up) language. Instructed to write down anything we understood.

Those that complied were cut short of training and never seen again outside of NSA assignments around the world.

John DaviesJuly 12, 2007 8:18 AM

As has been commented here several times - if you got anything that needs to be kept secret then encrypt it.

Relying on one branch of government or the judiciary to police another branch of government is just being hopelessly optimistic.

DamonJuly 12, 2007 9:17 AM

Okay, so I'll start by saying that I think that NSA program is illegal under current law.

I suspect that the NSA doesn't want to admit to automated wholesale scanning of vast swaths of US phone communications. Maybe they're scanning for keywords or particular languages or emotional intensity. Whatever.

I doubt any such search could ever produce enough true positives to outweigh the cost of the many false positives that are sure to result. Also, this would never catch those smart enough to encode their conversations.

However, I am also sure that we'll never be able to convince the NSA that such a program is worthless. They'll have to convince themselves. I only see one of two practical solutions:

1. Investigate and prosecute anyone involved in such a program. Teach the institution that breaking FISA will result in prison. This solution must wait for a new administration to escape Pardonmania.

2. Pass a new law giving the NSA the legal authority to perform wholesale scanning with the added restriction that *any* conversation which gets tagged for further review must get a FISA warrent before being heard (or read via transcription) by any human being.

Of course, I'd prefer Option 1, but Option 2 could be done now.

For RealJuly 12, 2007 9:27 AM

I have no doubt that the Cheney government violates law the and the constitution repeatedly and that a chilling effect on the American citizens and world citizens is created.
The ACLU is a bad case to fight this on because there are legitimate reasons to monitor some specific[ people in the ACLU who are at the higher levels. The ACLU is a prefect conduit to pass money (and perhaps orders) to descenting groups and individual people all over the world. It is naive to think The ACLU is a totally "good" organization and that might be no reason at all the monitor some people in group the is not the case. Terrorists are NOT the only valid target for scrutiny .
Assuming that there is the political power to force Cheny and all his crowd out, how do we clean this mess up?

For RealJuly 12, 2007 9:31 AM

@ Damon, where is the political power to do anything about the NSA and other institutions. Nixon was almost impeached for that to happen.

AnonGuyJuly 12, 2007 9:45 AM

@Damon

Pardonmania, are you kidding me. Bill Clinton pardoned more people in a few hours (http://en.wikipedia.org/wiki/List_of_people_pardoned_by_Bill_Clinton) than Bush has his entire presidency (http://news.yahoo.com/s/usatoday/20070705/cm_usatoday/ourviewonjusticeandthewhitehouselibbyuproarishypocriticalbutitdoesntpardonbush;_ylt=AuGpLzqhdrYjmd_7fl8TZ5D6B2YD)

Huh?July 12, 2007 9:48 AM

Judge Batchelder seems to make clearly conflicting statements in support of his ruling. One might suspect he was either "leaned on" or paid off. Or maybe he just needs to find a new profession, because if he didn't purposely ignore the laws in question, then I'm not sure he understood them.

Frank Ch. EiglerJuly 12, 2007 10:09 AM

> [...] recent ACLU vs. NSA decision regarding the NSA's illegal wiretapping activities.

Bruce, your talents are countless - you can pass unambiguous legal judgement on a matter that real judges have a hard time with.

AlphaPrimeJuly 12, 2007 10:14 AM

@For Real, if you can monitor the ACLU without impunity, what's to keep you from monitoring the press or political opponents? I'm not saying they should not be monitored, but the process should be through the courts, with a non-secret reason for the wiretap.

DamonJuly 12, 2007 11:17 AM

@AnonGuy: Presidential pardons are party favors handed out just as people are gathering their coats. Wait until Bush leaves office to make your comparison.

@ For Real: I have to hope that the judicial and legislative branches will rein in the executive branch out of self-interest. The stool of government is becoming more like a unicycle every day.

Our government's strength is in transparency and accountability. Checks and balances are just the most formal manifestations of these two principles. The Freedom of Information Act (FOIA) was a giant step forward for our civilization. Sarbanes-Oxley is FOIA for corporations.

CITOKATE: Criticism Is The Only Known Antidote To Error (David Brin)

AnonymousJuly 12, 2007 11:23 AM

"Bruce, your talents are countless - you can pass unambiguous legal judgement on a matter that real judges have a hard time with."

Simple reading of the plain English in the law shows the programs are slam-dunk illegal. That it took a judge to make an ass of himself in the performance of his duty to say otherwise is the "talent" here, not Bruce Schneier speaking the truth.

TJuly 12, 2007 11:24 AM

@AnonGuy

It has become common for presidents not running for re-election to pardon their cronies at the end of their term. It is eminently reasonable to assume that Bush would do the same.

@Frank Ch. Eigler

The question the "real judges" have been dealing with is standing, not legality.

For RealJuly 12, 2007 12:28 PM

@Damon
"I have to hope that the judicial and legislative branches will rein in the executive branch out of self-interest. "
Yes, that's how political power is exercised in the US. Congress and Judiciary have no power in and of themselves, it is derived from the population. But they must fight back.
If they fought, the population would support them..

Andre LePlumeJuly 12, 2007 12:31 PM

So, Clinton pardons a crony named Marc Rich, and that makes it OK for Bush to commute Libby's sentence?

Whatever happened to "two wrongs don't make a right?"

BTW, I don't recall Marc Rich having revealed any national security secrets and endangered the lives of undercover operatives and intelligence assets, either.

Lucky for Rich, he seems to have had a talented attorney....a guy by the name of Scooter Libby.

AnonGuyJuly 12, 2007 12:59 PM

Clinton pardoned over 140 people as he was leaving office. The other 300+ were before he was leaving (http://en.wikipedia.org/wiki/List_of_people_pardoned_by_Bill_Clinton)

Bush has pardoned a total of 113 (significantly less than the 300+ from Clinton). Right now that is one of the fewest amount of pardons by a president in history.

My point wasn't that these pardons are only thrown around by one particular party, just providing a little more facts. Calling it pardonmania sounds makes it sound like the President is pardoning people like it's going out of style while the facts show that the reality is totally opposite.

AnonGuyJuly 12, 2007 1:09 PM

@Andre

Libby wasn't found guilty of revealing national security secrets or endangering the lives of undercover operatives. He was found guilty of perjury, obstruction of justice and making false statements. Richard Armitage was Novak's source for the leaks (http://www.cnn.com/2006/POLITICS/08/30/leak.armitage/index.html)

I find it funny that the same people that got fired up about this (even thought it turned out to be inaccurate) didn't seem to care when Sandy Berger stole national security documents (http://www.cnn.com/2005/POLITICS/09/08/berger.sentenced/) and was only fined.

So if you steal national security documents (and lie about it) you get fined, but if you backtrack on yourself you get a $250,000 fine, 30 months in prison and are listed as a felon?

DamonJuly 12, 2007 1:17 PM

@AnonGuy

I'll concede that using "Pardonmania" was premature. I suspect that Bush is going to going to go on a pardon spree in January 2009, but I should wait until it happens to use such a term.

Another suspicion of mine is that many people in the Bush administration know of illegal programs like NSA wiretapping, but are not blowing the whistle because of the promise of a presidential pardon.

Anon-31July 12, 2007 1:58 PM

@AnonGuy

Frankly the difference between Clinton (and other past President's) cronyism and that of Bush is that Bush commuted the sentence of someone who worked in the Executive branch when he broke the law. Marc Rich didn't, he got a pardon because of connections. The dangerous precedent in the Libby case is that the guy at the top (Bush) can order people to do anything he wants, anything at all, legal, illegal, immoral whatever, and the implication is that they will get pardoned. Takes away alot of the incentive to follow the laws in the country.

And if you don't like the sentence imposed on Berger, take it up with the judge - at least he had to deal with the sentence.

Richard BraakmanJuly 13, 2007 6:22 AM

Anon-31, that's not a new precedent. The other Bush pardoned many of the people involved in the Iran-Contra scandal. Because they were patriots, you see.

Eh NonymousJuly 20, 2007 6:45 PM

"Huh?", commenter at 9:48 a.m.:

You seem very subtle, very aware of how things really work, reading such clever meanings behind Judge Batchelder's opinion.

Perhaps too obvious for you, however, was that Her Honor's first name is Alice, and therefore the pronoun "he" is, er, wrong.

Or were you just assuming all judges are male? Like you assume there are better explanations for rulings than the ones the judges write down?

Come to think of it, you seem to be aggressive enough about judges being unable to understand the laws, maybe this strengthens (to you) your argument: are you as sexist as you are tendentious?

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