Tag Archives: government

Some Thoughts on the PRISM “Fact Sheet”

Posted on by
Reply

DNI James Clapper, over the weekend, declassified and released a Fact Sheet on the just revealed PRISM project.  PRISM is represented as an internal government IT program whose purpose is to gather

foreign intelligence information from electronic communication service providers under court supervision, as authorized by Section 702 of the Foreign Intelligence Surveillance Act….

under which

All such information is obtained with FISA Court approval and with the knowledge of the provider based upon a written directive from the Attorney General and the Director of National Intelligence.  In short, Section 702 facilitates the targeted acquisition of foreign intelligence information concerning foreign targets located outside the United States under court oversight.

As some might expect, I have some thoughts on the program as described in the Sheet.

The Fact Sheet first addressed in general terms the collections themselves.

The “provider” (Yahoo!, Facebook, et al.) is required to provide the data, but the source of the requirement is confusing to me.  FISA Court approval (I’ll elide how we know, given the secrecy of the Court and associated proceedings, that the Court approved, or under what parameters), but direction of the AG and the DNI, is my point of confusion here: is the requirement a Court order requested by the AG/DNI, or is it an order by the AG/DNI that is merely sanctioned by the Court?  In the open world of police work and prosecuting attorneys, neither the police nor the prosecutor can direct a man to submit to a search that has been sanctioned by a court.  The search has to be pursuant to a warrant explicitly issued by the court, albeit in response to request for one by the police/prosecutor—and supported by a showing of probable cause.

Next, must the AG and the DNI jointly request/order delivery of the information, or can either do this?

On the matter of targeting (there’s that term…) individuals:

The Government cannot target anyone under the court-approved procedures…unless there is an appropriate, and documented, foreign intelligence purpose for the acquisition (such as for the prevention of terrorism, hostile cyber activities, or nuclear proliferation) and the foreign target is reasonably believed to be outside the United States.

What level of proof must be offered the FISA Court to support an allegation of a foreign intelligence purpose?  Just the bald claim?  Probable cause (which must underlie that other search warrant)?  Some other standard?

Next, what is the definition of “reasonably believed?”

On the matter of oversight:

[T]he notion that…activities are not subject to internal and external oversight is similarly incorrect. Collection of intelligence information…is subject to an extensive oversight regime, incorporating reviews by the Executive, Legislative, and Judicial branches.

How do we know the degree or efficacy of the oversight?  It’s secret.  Note, though, that the dishonesty of the present administration only emphasizes this concern.  It’s government secrecy here that raises the question, not Obama “transparency.”

The Fact Sheet then moved on to the FISA Courts.

All FISA collection…is overseen and monitored by the F ISA Court, a specially established Federal court comprised of 11 Federal judges appointed by the Chief Justice of the United States.

It’s a Federal court whose judges are not vetted and approved by the Senate, as Constitutionally provided.  They seem, then, not to be Article III judges.  How, then can they be Federal judges?

No risks here.

On “targeting” approvals:

The FISC [FISA Court] must approve targeting and minimization procedures…prior to the acquisition of any surveillance information.

How do we know the limits are being honored?  It’s a secret process.

On those minimization procedures:

Minimization procedures [require that] the dissemination of information about US persons is expressly prohibited unless it is necessary to understand foreign intelligence or assess its importance, is evidence of a crime, or indicates a threat of death or serious bodily harm.

Whose judgment of necessity?  Is the FISA Court involved in this subsequent determination, or are these judgments left to the Intelligence community?

The Fact Sheet then moved to the other government branches’ involvement.

On Congress’ involvement:

The DNI and AG provide exhaustive semiannual reports assessing compliance with the targeting and minimization procedures.

How do we know the reports are truthful?  The underlying data are classified.  Moreover, given the blatant stonewalling of this administration concerning the provision of data and testimony concerning the IRS, Fast and Furious, the free press attacks, the Benghazi disaster, and so on, on what basis do we conclude the underlying data would be available to a classified Congressional hearing in a timely manner?  Note that the stonewalling of the present administration only emphasizes this concern.  It’s government secrecy here that raises the question, not Obama “transparency.”

On the Executive Branch leadership involvement:

The Executive Branch, including through its independent Inspectors General, carries out extensive oversight…which includes regular on-site reviews of how…authorities are being implemented.

We’ve seen the…effectiveness…of two of the Executive Branch’s Inspectors General: State’s vis-à-vis Benghazi and Treasury’s vis-à-vis the IRS.  Moreover, on what basis do we believe that IG reports on a classified operation or series of operations will be readily available, even to a classified Congressional hearing?

The Fact Sheet concluded with a short series of claimed successes under PRISM (without providing any substantiation for the claims).  Suppose, though, the claims are true.  See this for some thoughts on surveillance vs freedom.

In the end, though, it comes down to trust, since some activities must be carried out at the expense of individual liberty—those search warrants, for instance—and some activities must be done in secret in order to avoid tipping off the enemy.

Trust is a terrible thing to have wasted.

The Wall Street Journal’s Embarrassing…Naiveté

Posted on by
Reply

In a Friday op-ed, the editors of the WSJ had this to say, among other things, about the government’s invasion of American privacy in the name of “security.”

The effectiveness of data-mining is proportional to the size of the sample, so the NSA must sweep broadly to learn what is normal and refine the deviations.  A nongovernment analogue might be the credit card flags that freeze payment when, say, a New Yorker goes on a shopping spree in Phoenix.

This is beyond naïve, it’s disingenuous.  The “analogue” has nothing to do with what the government is doing.  The credit card company that does such flagging—data mining—is a private enterprise away from which any and all customers easily can walk should they disagree with the data mining.  Americans can’t walk away from our government without emigrating.  And waiting for the next election lets the government’s damaging invasion continue apace in the interim.

Moreover, that credit card company is data mining a single customer, albeit it’s likely doing this for each of its customers.  It’s not routinely aggregating, by…credit card number…those data with every other customer’s data.  But wait—the government, in its Verizon data mining isn’t collecting personally identifiable data—only phone numbers called and called from.  Please.  The point of the government’s data mining is to find out who and to whom—phone numbers aren’t the terrorists.  It’s breathtakingly easy to attach a name to a phone number.

Then they write this:

The Washington Post also revealed Thursday that NSA has a parallel metadata program for Internet address packets called Blarney.

If the NSA’s version of a computer science department operates like the rest of FISA, the government is cautious to ensure that its searches are narrowly tailored and specific protocols are reviewed by FISA judges.

On what basis does the WSJ make their assumption of that monumental “if?”  Do they really think a government (not just Obama’s administration) that has the present IRS, the present DoJ, the present HHS, the present EPA, etc can be trusted to honor secret limits?

Further, the Washington Post led their article with this:

The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs….

That’s content, not just address packets (the Internet’s analogue to phone numbers).

Given all of this, and the associated secrecy, I have to wonder who else is being investigated.  Conservative Americans, perhaps?  Americans who disagree with this government’s policies?

Finally, and this can’t be emphasized enough: we have no security without our individual liberties.  Ben Franklin understood this; it’s unfortunate that this conservative newspaper has made this mistake.

Holder’s Defense

Posted on by
Reply

On 15 May, Attorney General Eric Holder testified under oath before the House Oversight and Government Reform Committee that

With regard to potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved in, heard of, or would think would be a wise policy.

Yet he had already been consulted concerning, and subsequently approved, a search warrant application to search the personal emails of an individual reporter (James Rosen of Fox News), a warrant that said in part

Because of the Reporter’s [Rosen’s] own potential criminal liability in this matter….

A three-page Department of Justice letter to the Chairmen of the House Judiciary Committee and that committee’s Subcommittee on Crime, Terrorism, Homeland Security, and Investigations is cynically unresponsive (quite aside from the fact that while the chairmen had addressed their concern on the “disconnect” to Holder, the latter didn’t deign respond, instead having an underling do so).

The letter devoted two and a half pages first to piously proclaiming Holder’s reverence for the role of a free press in American society and then to outlining the way getting warrants to search members of the press is supposed to work.  The underling then proclaimed that there was and is no disconnect between the facts of Holder’s testimony and the fact of the warrant’s accusation.  That’s it—just a bald, unsubstantiated pronouncement.  The underling offered not the least shred of evidence to support that claim.  The underling did, though, include this shocker in his penultimate paragraph:

At no time during the pendency of this matter—before or after seeking the search warrant—have prosecutors sought approval to bring criminal charges against the reporter.

DoJ and writers of the Left have made much of that word “potential,” saying that there was no prosecution after the fact, as though this non sequitur eliminates any potential.

Yet Holder did not testify “with regard to prosecution;” he testified explicitly to its potential.  And the warrant he’d already approved at the time of his testimony spoke explicitly about that potential.

It’s clear that Holder still has some tap dancingexplaining to do in order to reconcile his sworn testimony with the content of the search warrant he’d approved prior to his sworn testimony.

But there’re an additional couple of questions in my mind that goes to Holder’s fitness as the US’ chief prosecutor.  What kind of prosecutor accuses a man of criminal activity—that warrant—in order to obtain a search warrant while, at the time of the accusation, having no intent of prosecuting that man should the warrant produce the relevant evidence?

Did Holder lie to the judge in his warrant—he didn’t consider the reporter to be “potentially” criminally liable at the time?  Related to that, is it normal DoJ practice to deliberately mislead a judge with such ruses in order to get a warrant to conduct a search?  And: if the warrant is unobtainable without such shenanigans, how legitimate can the warrant be?

The DoJ letter can be read here.  The Rosen search warrant can be read here.

A Thought on the IRS

Posted on by
Reply

Peggy Noonan wants an investigation into the IRS and its behavior over the last few years.  She has ample justification for one:

We do not know who ordered the targeting of conservative groups and individuals, or why, or exactly when it began.  We don’t know who executed the orders or directives. We do not know the full scope or extent of the scandal.  We don’t know, for instance, how many applicants for tax-exempt status were abused.

We know the IRS commissioner wasn’t telling the truth in March 2012, when he testified: “There’s absolutely no targeting.”  We have learned that Lois Lerner lied when she claimed she had spontaneously admitted the targeting in a Q-and-A at a Washington meeting.  …  We know the tax-exempt bureau Ms Lerner ran did not simply make mistakes because it was overwhelmed with requests—the targeting began before a surge in applications.  And Ms Lerner did not learn about the targeting in 2012—the IRS audit timeline shows she was briefed in June 2011.  She said the targeting was the work of rogue agents in the Cincinnati office.  But the Washington Post spoke to an IRS worker there, who said: “Everything comes from the top.”

And, she points out that we know about Catherine Engelbrecht.  We also know that the weight of the targets do not support the premise of this being simply an inability by low-level IRS employees to interpret the relevant tax law—”they” interpreted it, in Noonan’s words, “with a vengeance.”  And we know who “they” is: as a worker in the IRS’ Cincinnati office told the Washington Post,

Everything comes from the top.  We don’t have any authority to make those decisions without someone signing off on them.  There has to be a directive.

“The top” would include Lerner, who after denying any wrong-doing then pled the 5th in an effort to prevent anyone questioning whether that was true.  “The top” would include the ex-IRS Commissioner Douglas Schulman, who lied to the House of Representatives when he testified that there was no targeting going on—even as it then was going full tilt.  “The top” would include soon-to-be ex-Acting IRS Commissioner Steven Miller, who actively stonewalled, if not outright lied to, the House during his own testimony.

Noonan wants an investigation, a dead serious one:

The IRS has colorfully demonstrated that it cannot investigate itself.  The Obama administration wants the FBI—which answers to Eric Holder’s Justice Department—to investigate, but that would not be credible.  The investigators of the IRS must be independent of the administration, or their conclusions will not be trustworthy.

An independent counsel, with all the powers of that office, is what we need.

As she says, if the IRS isn’t stopped now, it never will be.  But an independent investigation also will meet with stonewalling and delay—and we have two critical national elections coming up in 2014 and 2016, short one and three years away.

What’s needed is a complete elimination of the IRS and a new agency put into its place— with today’s IRS incumbents, at all levels, ineligible to apply for work there.  (Separately, but just as critically, a total reform of our tax code into a simple flat rate, no exceptions system is necessary—which would dovetail nicely with replacing the present IRS with a much smaller, simpler tax collection agency.)  Unfortunately, this both is no more likely to happen than a serious investigation, and it also will take time.

Which puts a premium on getting started.