Coyote Blog

Less than 12 hours after CBS aired is horrid, uncritical infomercial for the NSA, a federal judge has ruled that the NSA likely violated the Fourth Amendment with its domestic wiretapping and data gathering.

Blogging has been light during the holidays, but here are some predictions I made back in 2007 I feel pretty good about (note these were made a year before Obama was elected)

What I will say is that folks who have enthusiastically supported the war should understand that the war is going to have the following consequences:

1. In 2009 we will have a Democratic Congress and President for the first time since 1994.
2. The next President will use the deficits from the $1.3 trillion in Iraq war spending to justify a lot of new taxes
3. These new taxes, once the war spending is over, will not be used for deficit reduction but for new programs that, once established, will be nearly impossible to eliminate
4. No matter what the next president promises to the electorate, they are not going to reverse precedents for presidential power and secrecy that GWB has established.  Politicians never give up power voluntarily.  [if the next president is Hillary, she is likely to push the envelope even further].  Republicans are not going to like these things as much when someone of the other party is using them.

1.  The prediction was 100% correct, and in fact even went further as the donkeys gained a filibuster-proof majority in the Senate, at least for a year.  Though the war likely had little to do with the outcome, which was driven more by the economy

2.  Dead-on.  Five years later Obama still blames the deficit on Bush.  This is no longer true -- Obama has contributed far, far more than Bush to the deficit -- but the Republicans' fiscal irresponsibility during their tenure have robbed them of any credibility in criticizing Obama

3.  Mostly true (and usually a safe bet with government).   Tax increases were deferred for four years due to an economy I had not foreseen would be so bad, but they are coming.  At the time, it seemed logical to blame a lot of the deficit issues on war spending.  Today, though, 1.3 trillion is barely 8% of the debt and is almost trivial to more recent money wasting activities.

4.  Absolutely true.  In spades.  The only thing I missed was I thought Obama might be less likely to go overboard with the whole executive authority and secrecy thing than Hillary, but boy was I wrong.  Obama has absolutely embraced the imperial presidency in a way that might have made Dick Cheney blush.  Accelerated drone war, constant ducking of FOIA and transparency, increased use of treason laws to prosecute whistle blowers, claiming of power to assassinate Americans on the President's say-so, accelerated warrant-less wiretapping, using executive orders to end-run Congress, etc. etc.  And I never guessed how much the media which so frequently criticized  Bush for any expansions in these areas would roll over and accept such activity from a President of their party.

Forget about the economy -- libertarians expect Democrats to be horrible statists in economic matters.  But we hope to get some protection of civil liberties in exchange.  But Obama has been simply awful in this area as well -- prosecuting marijuana sellers that are legal under state law, claiming assassination powers, the drone war, wiretapping, failure to address gay marriage, etc.

Here is but one example - the Orwellian defense of warrantless wiretapping.  You can't sue us unless we tell you there is a wiretap, and we are not going to tell you.

As part of its concerted campaign to prosecute whistleblowers and to classify state secrets, the Obama administration has taken a position in Clapper that makes the Bush administration pro-secrecy campaign seem pale in comparison: namely, that no one can challenge warrantless surveillance unless the government tells you in advance that you’re being surveilled—which national security interests prevent it from doing. When Bush administration offered milder versions of the same arguments, the civil liberties community rose up in protest. Verrilli, for his part, was met by vigorous skepticism from the Supreme Court’s liberal justices.

It’s unfortunate enough that the administration asked the Court to hear the surveillance case in the first place, after the U.S. Court of Appeals for the Second Circuit had ruledthat the plaintiffs —lawyers and human rights and media organizations whose work requires them to communicate with clients, sources, and victims of human rights abroad—had legal standing to bring the case. Although they couldn’t be 100 percent sure that their telephone communications were being monitored, the appellate held that there was a “realistic danger” that their telephone communications were being monitored under the FISA Amendments Act of 2008 (FAA), passed by Congress to codify some of the worst excesses of the Bush administration’s warrantless wiretapping program. This led the journalists and lawyers to suffer tangible injuries—such as having to fly to the Middle East to communicate with clients rather than talking by telephone, for example, or being more circumspect in talking to Middle Eastern sources, as journalists such as Naomi Klein and Chris Hedges alleged.

In his Supreme Court brief and in the oral argument yesterday, however, Verrilli alleged that these harms were too speculative to create legal standing to challenge the law, since the lawyers and journalists couldn’t be sure they were being surveilled under the FAA rather than under some other warrantless wiretapping authority. Essentially, the Obama administration was arguing that targets of surveillance could only challenge the law after they knew they were being surveilled, though the government would never tell them they were being surveilled before bringing a case against them.

I am sure we would all like a ruling that we cannot be sued unless we give the plaintiff permission to do so, essentially what the Obama Administration is claiming here.

Update:  From the Washington Times:

Bloomberg News reported on October 17 that Attorney General Eric Holder “prosecuted more government officials for alleged leaks under the World War I-era Espionage Act than all his predecessors combined, including law-and-order Republicans John Mitchell, Edwin Meese and John Ashcroft.” :

The Justice Department said that there are established avenues for government employees to follow if they want to report misdeeds. The agency “does not target whistle-blowers in leak cases or any other cases,” Dean Boyd, a department spokesman, said.“An individual in authorized possession of classified information has no authority or right to unilaterally determine that it should be made public or otherwise disclose it,” he said.

However, when leaks to the press benefit the administration, prosecutions from the Jusitce Department are absent. For example, AG Holder was not prosecuting anyone over who leaked information about the killing of Oasma bin Laden. The Justice Department has yet to charge anyone over leaking information regarding the U.S. involvement in cyberattacks on Iran as well as an al Qaida plan to blow up a U.S. bound airplane. In fact, the Justice Department ended up appointing one of two attorneys to the cyberattacks investigation who was an Obama donor.

Part of the problem is that if this (or any other) Administration has its way, information that embarrasses the Administration get's classified, on the dubious logic that embarrassing the Administration embarrasses America.  With this definition, all whistle-blowing becomes "espionage".

Update 2:  More on Wiretapping from the EFF

To the contrary, there’s no indication that the still-active warrantless wiretapping program—which includes a warrantless dragnet on millions of innocent Americans’ communications—has significantly changed from the day Obama took office. With regard to the FISA Amendments Act, the Obama Administration has actively opposed all proposed safeguards in Congress. All the while, his Administration has been even more aggressive than President Bush in trying to prevent warrantless wiretapping victims from having their day in court and hascontinued building the massive national security infrastructure needed to support it. ...

Some have suggested it’s possible when Obama said “safeguards” on the Daily Show, he is referring to some unspecified secret administrative rules he has put into place. Yet if these “safeguards” exist, they have been kept completely secret from the American public, and at the same, the administration is refusing to codify them into the law or create any visible chain of accountability if they are violated. But given the ample evidence of Constitutional violations since Obama took office (see: here, here, and here), these secret safeguards we don’t know exist are clearly inconsequential.

Police officers long for the days when they can make up any facts they wish about an encounter with the public and make them stick.  That is why, even if the public were required to videotape police, my guess is that officers would still find a reason to arrest them for wiretapping.

Today, here on Cape Cod, where every car has an Obama sticker, I was struck by two cars which had Obama stickers as well as this same slogan, a paraphrase of a Ben Franklin bon mot:

Those who give up their liberty for more security neither deserve liberty nor security.

I have absolutely no problem with this bumper sticker in its original context, which I presume was to protest things like the Patriot Act, indefinite detentions, and wiretapping during the Bush Administration (and all retained, so far, by this Administration).

But my question back to them would be -- do you still support this statement in the context of pending health care legislation, which is yet another example of trading individual liberty for security, albeit security of a slightly different type?

Apparently the  NSA is under some heat for proposing to monitor the communications of a member of Congress thought to be meeting with terrorist suspects:

While the N.S.A.'s operations in recent months have come under examination, new details are also emerging about earlier domestic-surveillance activities, including the agency's attempt to wiretap a member of Congress, without court approval, on an overseas trip, current and former intelligence officials said. . . .

The agency believed that the congressman, whose identity could not be determined, was in contact "” as part of a Congressional delegation to the Middle East in 2005 or 2006 "” with an extremist who had possible terrorist ties and was already under surveillance, the official said. The agency then sought to eavesdrop on the congressman's conversations, the official said.

The official said the plan was ultimately blocked because of concerns from some intelligence officials about using the N.S.A., without court oversight, to spy on a member of Congress.

I have a counter idea.  Why don't we monitor all the communications of all of Congress all the time and post it on a web site.  If they want to exercise ultimate power over us, we can then exercise ultimate scrutiny over them.  Unfortunately, in the world of the future, Congress is likely to be the only group exempted from monitoring.

I am headed off to Wyoming and my family's ranch for a while:

Since data rates go down substantially when the cows are chewing on the phone line (really- the phone line is draped for miles on a fence) I am not sure how much I will blog.

In case I am offline for a while, I would like to offer this serious thought for world improvement.  We don't need more progressive taxes, or larger government, or more wiretapping, or more government control of mortgages, or mandatory service.   All we really need is ... more cowbell.

I would prefer not to see warrantless searches without judicial oversight be legal under any circumstances, so I am happy there are roadblocks in the FISA extension.  What I am unclear about, though, are the exact issues surrounding telecom immunity from lawsuits which is apparently what has the thing held up.  By no means do I wish to give telecoms some blanket immunity from the consequences of their handling of private data.  However, it seems odd to want to hold them liable for complying with what would be, under the new law, a legal government order.  Or, is the immunity issue all retroactive to past compliance with government orders when it wasn't so clear if the government orders were legal?

I must say I have some sympathy for businesses, particularly those that are highly regulated as telecom, who bow under government pressure and then get sued for doing so.  For example, as I wrote before, I am required by Arizona law to take actions that the Feds consider illegal.  Its a frustrating place to be.

Anyone who can provide clarity on the issues here (not the FISA issues or wiretapping issues but narrowly on the immunity issue) is encouraged to do so.

This weekend, the Democrats in Congress passed legislation legalizing the Administration's previous grab for new wiretapping powers.  Further proving that the minority party in the US government does not really object to power grabs, they just get in a huff that the other party thought of it first.  Other examples of such behavior include the Patriot act, currently supported by Republicans and opposed by many Democrats, but most of whose provisions were originally proposed by Bill Clinton and opposed by a Republican Congress  (opposition led by John Ashcroft!)

I really don't want the president, of either party, listening to my phone calls without a warrant, and that answer does not change if I am talking  to my friends in Arizona or my friends in London.

John Scalzi has a great post reacting to the line in the article above where Democrats vow to, at some time in the future, "fix" the flaws in the law they just passed.

They wouldn't have to "fix" it if they hadn't have passed it.
Once again I am entirely flummoxed how it is that the Democrats, faced
with the president more chronically unpopular than Nixon, and so
politically weakened that the GOP candidates for president can barely
bring themselves to acknowledge that he exists, yet manage to get played by the man again and again.

If the Democrats honestly did not feel this version of the bill
should have been passed, they shouldn't have passed it. I don't see why
this is terribly complicated. And don't tell me that at least it has a
six-month "sunset" clause; all it means at this point is that in six
months, the Democrats are going to allow themselves to get played once
more, and this time they'll have given Bush the talking point of "well,
they passed it before."

My only objection to this statement is the implication the this is just a matter of the Democrats getting played.  I actually think it's exactly what the Democrats want -- they want to retain a reputation for caring about government intrusiveness without actually reducing government powers (just like Republicans want a reputation for reducing economic regulations without actually doing do when they were in power).  After all, the Dems expect to control the administration in 2 years, and they really don't want to take away any of the President's toys before that time.

I think it was George Carlin (?) who used to ask "Do you know what the worst thing is that can happen when you smoke marijuana?" His answer was "Get sent to prison".  The implication, which I have always agreed with for most drug use, was that it is insane as a society to try to save someone from doing something bad to himself by ... doing something worse to him.

I think of this whenever I get in a discussion about security responses to 9/11.  The worst thing that can happen to this country as a whole  (as differentiated of course from the individual victims of 9/11) is to turn the country into a police state to combat potential future terrorist actions.  I personally would greatly prefer to live with a 1 in 100,000 chance of being the victim of terrorism than find myself living in an America that has abandoned its constitution.  I wrote more on this topic here.

To this end, though I tend to be slow to believe these type of stories, this one (via Reason) about domestic NSA wiretapping is pretty frightening:

AT&T provided National Security Agency eavesdroppers with full
access to its customers' phone calls, and shunted its customers'
internet traffic to data-mining equipment installed in a secret room in
its San Francisco switching center, according to a former AT&T
worker cooperating in the Electronic Frontier Foundation's lawsuit
against the company....

The source is just one low-level guy, so this story is still pretty soft.  I hope the investigation is allowed to play out.

There have been any number of stories about how provisions of the Patriot Act are used more routinely to proecute drug cases than to pursue, you know, terrorists.  Note, however, this provision in the Patriot Act that has nothing to do with national security (via Overlawyered).

Quietly slipped into the reauthorization of the Patriot Act:
first-time-ever authority for the Justice Department to engage in
wiretapping and bugging of private premises for purposes of going after
antitrust violators.

Given the fact the the feds regularly prosecute companies with large market shares for A) raising prices (i.e. monopoly pricing); for B) lowering prices (i.e. predatory pricing); and for C) keeping prices the same (ie price fixing), this becomes an open mandate to listen into any private conversation at any company with a non-trivial market share.  Have fun at your next staff meeting over there at Microsoft or Exxon. 

From the Incredible Bread Machine by G.W. Grant:

"Now let me state the present rules,"
The lawyer then went on,

"These very simple guidelines,
You can rely upon:
You're gouging on your prices if
You charge more than the rest.
But it's unfair competition if
You think you can charge less!
"A second point that we would make
To help avoid confusion...
Don't try to charge the same amount,
That would be Collusion!
You must compete. But not too much,
For if you do you see,
Then the market would be yours -
And that's Monopoly!

While I bloviated for many screen-inches on wiretaps, detentions, and separation of powers (and here, and here), George Will nails what I was trying to say in about a paragraph.

But, then, perhaps no future president will ask for such congressional
involvement in the gravest decision government makes -- going to war. Why would
future presidents ask, if the present administration successfully asserts its
current doctrine? It is that whenever the nation is at war, the other two
branches of government have a radically diminished pertinence to governance, and
the president determines what that pertinence shall be. This monarchical
doctrine emerges from the administration's stance that warrant-less surveillance
by the National Security Agency targeting American citizens on American soil is
a legal exercise of the president's inherent powers as commander in chief, even
though it violates the clear language of the 1978 Foreign Intelligence
Surveillance Act, which was written to regulate wartime surveillance.

Will seems to think the wiretapping a reasonable approach, and thinks Congress should authorize it, but its very reasonableness or even necessity does not justify executive circumvention of the Constitution:

Besides, terrorism is not the only new danger of this era. Another is the
administration's argument that because the president is commander in chief, he
is the "sole organ for the nation in foreign affairs." That non sequitur is
refuted by the Constitution's plain language, which empowers Congress to ratify
treaties, declare war, fund and regulate military forces, and make laws
"necessary and proper" for the execution of all presidential powers . Those
powers do not include deciding that a law -- FISA, for example -- is somehow
exempted from the presidential duty to "take care that the laws be faithfully
executed."