Look Who’s Attacking Me Again

It’s Charlie Pierce, again, reacting to my Greenwald column from yesterday.

[T]he point is that, in all of human history, if you grant the government surveillance powers, it will use them and, in using them, expand them, and it will end up using them on its own citizens simply because that is always the path of least resistance. This is why James Otis got all up in the king’s grill about the Writs Of Assistance. This is also why we have the Fourth Amendment to the Constitution. It’s not because of what British soldiers already had done in Boston and in Philadelphia. It was about what, if they weren’t stopped by the force of law, they then would do later on. See also; Cointelpro, Plumbers, Committee To Re-Elect The President, Red Squads, CISPES, etc., etc., etc. This isn’t paranoia. Unless you watch them very, very closely, this is how intelligence services act. All intelligence services. Everywhere. And, no Bob, your funny ha-ha about cat memes and porn habits — some of which latter can really land you in jail, if the well-meaning but mistake-prone heroes of our intelligence apparatus happen to accidentally share information with the local cops — is also inaccurate. It’s no cat memes. It’s gamers.

Okay, first, on the video gamers story, isn’t this not unlike a virtual version of the use of undercover cops and sting operations?

Regarding “Cointelpro, Plumbers, Committee To Re-Elect The President, Red Squads, CISPES,” perhaps Charlie can point to something, anything resembling the illegalities of those programs (from 40+ years ago) in the Snowden reporting so far. And that speaks directly to my point. If Charlie hadn’t misrepresented what I wrote, he would’ve included when I wrote, “Sure, I suppose anything’s possible. I suppose NSA could target U.S. citizens for surveillance without warrants again, as it did during the post-9/11 years, or as it did in the years before the Church Committee when counter-intelligence programs such as MINARET and SHAMROCK were clear examples of intelligence overreach.” But he didn’t because it would’ve contradicted his argument.

“It was about what, if they weren’t stopped by the force of law…” But they were stopped. Recently, the FISA court stopped a questionable NSA program that inadvertently collected domestic phone calls. When the government oversteps there’s accountability. But the trespass has to be committed first.

Also, am I misreading Charlie or did he imply that NSA is, in fact, surveilling the porn habits of Americans without a warrant? For the record, it’s not. The porn story was about six — yes, six — terrorism suspects.

The whole slippery-slope argument is just as cheap and pathetic as Greenwald’s 1984 analogies. And in the process of accusing me in the pages of Esquire of missing Greenwald’s point, Charlie missed my point.

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  • JimmyAbra

    I still think that there is a disconnect to where people think ther right of privacy begins and ends as well as the difference between collecting info in “public space” and using said info against someone. I don’t see a breach in collecting and it seems that , as mentioned, a breach in using first has to happen to be punished.

    • blair houghton

      It’s not even “using against.” If they can identify the source of the info as someone not under investigation, they don’t even look at the info itself. They collect it mechanically then sort out what isn’t directly related to a warranted investigation. People are getting freaked out because data is collected by a machine that at the time it collects it has no means of interpreting anything other than the channel it’s coming in on. To the computer the content is a set of bytes completely free of semantics. And the intelligence agencies make it a violation of policy to even look at it without constitutional controls in place.

      • http://drangedinaz.wordpress.com/ IrishGrrrl

        Greenwaldians don’t believe that they are actually sorting the unsuspected people out. Even though that’s the policy and we have the agency telling us that’s what they do–how can you can convince someone who thinks everything you say is a lie?

  • Nick2000

    I do not understand why you seem intent on waiting for something to happen before regulating it. Maybe you are the half full glass guy and he is the half empty glass guy but you should know that all police (or police like) forces who get blamed if something bad happens (like a terrorist attack) will make sure to do everything in their power to prevent it even if they trample laws or rules. In a case of “ask for permission first” or “ask for forgiveness later”, they will always default on the later because things get done and since most people hush things up, you rarely have to explain yourselves. In short, it is very advantageous to game the system and there is never any real punishment for it.
    As I stated before, we (the people) need to decide what we are comfortable with and put it in place with real audits and real consequences. As for bad laws, I believe that George Washington stated that bad laws needed to be very firmly applied because it would speed up their removal or clean up by lawmakers.

    • ChrisAndersen

      I’d much rather have legislation based on the history of actual events rather then speculation about what might happen because the range of the former is limited and knowable while the latter is unlimited (especially in the minds of the paranoid).

      We already have far to many laws based on the fear of what might happen if we didn’t have them (the drug laws being the prime example).

    • http://drangedinaz.wordpress.com/ IrishGrrrl

      “I do not understand why you seem intent on waiting for something to happen before regulating it.”

      There is regulation in place and for the most part it is working. That is Bob’s point and that is what Pierce (and you) are missing. If the regulation seems inadequate, and it may very well be in some instances, then by all means lets be proactive and fix it. But we don’t need to be proactive about every possible violation that might occur because in truth, the possibilities are endless. We do regulate for the likely violations though. And that should be good enough until and unless we learn differently.

      • Nick2000

        As per the fisa court’s judge own opinion, it is plainly *not* working.

        I agree that we cannot regulate everything that will exist in the future which is why we should list what is *only* allowed. This is also how the constitution works. Note that I am not pre-judging what is or what is not allowed but it seems to me that the NSA now sets it’s own agenda and it is not even clear how much control the executive, let alone congress, has over it.

        • http://drangedinaz.wordpress.com/ IrishGrrrl

          “it seems to me that the NSA now sets it’s own agenda”

          I don’t think the NSA is functioning outside of it’s general mandate which is what the Executive expects of them. However, I would be more comforted knowing that the President (this one and any to follow) were more closely monitoring what they are doing. For example, I was not happy to learn that the President did not know about the surveillance program on our allies’ leaders. However, I was happy that the President responded with a review of all the active programs. Ultimately, to me, this means the system worked. Could it be better? Yes. If the Executive does decide to do more frequent reviews of surveillance programs, that would be an improvement. Will we ever know about that? Should we know about that? This is where the disagreement begins. What is enough transparency to satisfy the far left and libertarians? I suspect there will never be enough transparency to satisfy them. Libertarians think there shouldn’t be any government so who cares about transparency. The far left thinks that we should know enough to feel comfy with NSA activities. Of course, that kind of stance isn’t conducive to maintaining enough secrecy to maintain national security. I want both–transparency and national security. Too many on both sides of the debate refuse to acknowledge just how hard it is to maintain this balance. It’s all or nothing and that is not a practical working model.

        • Badgerite

          That a judge gets to review the program means that regulation is working. That is the point. Isn’t it. If there was no regulation, no judge would have knowledge of or oversight over the programs in question. That did occur, but it occurred during the Bush years. Not the Obama years.

    • http://vermillionbrain.blogspot.com/ Vermillion

      I do not understand why you seem intent on waiting for something to happen before regulating it.

      Right. So all those states that have enacted draconian voter ID laws in order to stop voter fraud that all evidence has shown to not exist, they are just fine and dandy.

      Basing laws around future crime is near impossible and quite silly. The law is already 10 years behind the advances of technology and globalization in the first place, and you want the prediction of future crimes left up to a legislative body controlled by a group of people that already think the future involves bowls of wrath and the Horsemen of the Apocalypse?

    • blair houghton

      It is regulated. Because it already happened. W put in place a system where there were no controls. Congress freaked and insisted they apply FISA to it. So we (the people) have in fact done exactly what you want. We elected the people who make the decisions for us, and they made the right decision. And until we elect another pinheaded sumbitch like W who simply wipes the controls away, the constitution will be satisfied.

      But, as W and Nixon show, it doesn’t matter what the Constitution and Law say. They have the monetary and physical and persuasive power to cause other human beings in and out of the government to do things that are illegal. And that will be true as long as we keep falling for their bullshit and electing human beings of low character to office.

      Hamstringing intelligence agencies in doing the things they are supposed to be doing preemptively is not going to serve us as well as doing our homework in elections will.

  • ChrisAndersen

    I found Mr. Pierce’s comment about the 4th amendment to be rather odd. Is he really suggesting that the impetus for including this amendment was *not* cases of actual infringement of colonist liberties by the crown but just the *fear* that it might happen?

    I seem to recall we had a revolution because of actual incidents, not speculation about possible incidents.

    • blair houghton

      apropos of that, you have to watch out for people who refer to the “founding fathers” in subsets.

      the constitution is the democratic product of voting by all of them. cherrypicking their individual opinions when there are conflicting examples ignores that fact.

  • Badgerite

    Well, we did expressly grant the government the right to conduct a reasonable search in the 4th Amendment. What constitutes a ‘reasonable search’ is a matter of legal interpretation and changes with the times and the technology. Thus the government was allowed to covertly listen in to phone conversations and otherwise over hear and record private conversations if they could establish probable cause that a crime was somehow implicated in that conversation. Jeffrey Rosen gets all misty eyed over the Brandeis dissent but the bottom line is that the intrusions already signed off on by the Supreme Court are the basis for the current NSA programs. The rally cry now, therefore, is an individual warrant that states probable cause. That restriction does indeed only apply to American citizens and its protections do not extend to foreign communications. This and the technical difficulties associated with separating, under current technologies, the foreign communications from those protected communications of American citizens are the basis of the grant of authority to the NSA under the 2008 Foreign Intelligence Surveillance Amendments. The term ‘reasonable’ has to take into account the type of technology that has to be dealt with. That is really what this is all about. A new technology that takes some and probably eventually all communications outside of the venue where communications can be easily identified as associated with a foreign communication or a domestic communication.
    And any governmental power can be abused. That does not mean that power does not need to exist. It means you perfect oversight so as to prevent rampant abuse.

    • http://drangedinaz.wordpress.com/ IrishGrrrl

      Adding to your excellent comment, that we also do not need to be proactive to the extent that we create regulation to cover every possible permutation of potential abuse.

    • Nick2000

      I agree and oversight is plainly not working

      • http://drangedinaz.wordpress.com/ IrishGrrrl

        And that’s where we disagree.

        • Nick2000

          President Obama jump started a review of it so he at least agrees that things need to be looked at. We’ll see the results hopefully but you cannot provide oversight of something you do not know about (example of lack of oversight by congress members other than maybe Mike Lee and Dianne Feinstein who both anyway have conflicts of interest…)

          • blair houghton

            There was a narrow gray area, and some of the mechanical controls were faulty. That’s what’s being reviewed. In no case has anyone’s liberty been affected. Worst-case, if you get popped on evidence they wrongly collected, your lawyer waves the 4th Amendment and the judge makes your problem go away.

  • http://drangedinaz.wordpress.com/ IrishGrrrl

    It’s possible that an asteroid may hit the Earth some day (less than 1% for example) but are we going to put in place an exorbitantly expensive and extremely advanced satellite early warning and asteroid destruction system in orbit around Saturn? No, clearly not. It comes down to whether we want to put in place rational and sufficient proactive regulation for plausible and likely surveillance violations and then adjust as we learn more or whether we want to regulate everything that might potentially ever happen that could go wrong.

    It always seems to come down to two viewpoints: Progressives generally want to work with what we have and are okay with incremental change. GG and Pierce seem to be advocating that if we can’t regulate it all properly in a proactive way, then we should stop all surveillance until we can. Pragmatism versus Idealism. Nothing ever changes, does it?

    • Draxiar

      Perfect is the enemy of good.

      • blair houghton

        And that attitude is the enemy of perfect.

        But it doesn’t apply here. You’re not entitled to preemptive protection of your rights. Just to your rights, some of which you can only protect in court, sometimes only after you’ve been convicted and jailed for decades.

    • Nick2000

      Actually I am more interested in working auditing and reporting tools in addition to a separate oversight department than new regulation at this point. We need to make sure that the current rules are actually applied.

      • Badgerite

        Now you have said something I can agree with. What’s more, this was something that John Poindexter actually proposed in his TIA program but that went by the boards when it was transferred over to the NSA and its budget was cut. As I understand it, this is expensive to develop but I think it needs to be done.
        Couldn’t agree more.

    • Badgerite

      And even if the Congress were to adopt the Greenwald and Pierce approach, that is no guarantee that the American democracy would improve or stay intact. They act as if this is the only issue that will determine the future. I think they are quite wrong about that.

  • roxsteady1

    I’m really tired of all of these paranoid people who are shitting their pants about the NSA. I turned Jon Stewart off last night right after I turned it on to find him whipping this latest bullshit story complete with the “If you like your NSA Spy, You can keep your NSA spy” weak ass punch line. I stopped reading NSA stories because I don’t give a shit. There are many things going on in my own life that are much more pressing than this issue. I’ve also enjoyed a lot of Charlie Pierce’s stories but, this is clearly not one of them.

  • http://www.politicalruminations.com/ nicole

    I saw that yesterday. Pierce has long had one leg in the firebagging paranoid conspiracy theory camp.

    Look, the right wing has spent decades removing teeth from the government. And, they haven’t done so because they fear a government crackdown on liberty/privacy, they’ve done it because they work for big business, and big business doesn’t give a rat’s ass about anything but money.

    The government is damn near toothless at this point, and I for one fear big business far, far more than I fear the encroachment of the gov on my privacy.

    I find it interesting that Mr. Pierce has fallen for this trope.

  • muselet

    Charlie Pierce has made one good point since the first document dump from Edward Snowden: Tell me what is being done in my name.

    Fair enough. I agree. The problem is how much detail should be made publicly available. Is oversight by congressional committees and courts sufficient? Pierce seems to think not (and if that’s a misrepresention, I apologize and respectfully request that he clarify his position).

    It is hopelessly naive to think that every country in the world isn’t spying on every other country in the world (yes, I just called Edward Snowden hopelessly naive). It’s hopelessly naive to think that potential criminal enterprises should not be surveilled, at least long enough to determine whether an actual threat exists (yes, the notion that terrorists could be communicating and laundering money through World of Warcraft is daft, but it had to be checked out in case it was true). It’s hopelessly naive to think that, without oversight, the intelligence community wouldn’t run amok yet again.

    So yes, the Intelligence Committees have to start taking their oversight responsibilities far more seriously. Yes, the FISA court has to become an adversarial venue (someone has to play devil’s advocate). And absolutely, the public has to become more engaged in a discussion of the level of surveillance/spying/call it what you will that is acceptable.

    None of those things are made any more real—or even possible—by prominent bloggers missing the points being made by (sorry, Bob) less-prominent bloggers. If Pierce really wants to advance the necessary debate, he should outline what he would consider an acceptable oversight regime.

    –alopecia

    • http://drangedinaz.wordpress.com/ IrishGrrrl

      Excellent summary. Right now all I’m hearing from the far let is “Eeeek!”, the libertarians “See I told you we can’t trust government”, and the rest of us liberals “Let’s look at the facts and determine a real course of action”.

  • D_C_Wilson

    Pierce does make a few good points. Unless there is real indication that terrorists are exchanging plans in between orc raids, monitoring WoW players is probably a waste of time. And the remark about agents accidentally spying on each is remiscent of the Conintelpro days where so many agents had infiltrated certain “radical” groups that the informants outnumbered the real activists.

    But I think people need to just accept that the internet is an open forum. If you post it online, it’s there for all the world to see, including the government and your employers. And that includes email since anyone you send an email to can always forward it to someone else. Just accept that it is an inherently non-private communications medium and behave accordingly.

  • mrbrink

    The “NSA” is the new “September 11th” in terms of fear mongering on slippery-slopes. The government are now the terrorists who hate us for our freedoms. It’s political escapism.

    And Charlie Pierce is butting into a debate between Bob and Greenwald that has been years in the making. Studying Greenwald’s questionable-at-best methods over this time has revealed much more than Charlie Pierce understands.

    But the ‘NSA-is-Obummer’ zombies need more brains!!

    Don’t want the government sifting through your checked baggage? Don’t fly. But don’t act like anyone gives a shit about your humongous vibrator. Unless of course you intend to use it in public.

    The video game revelation is another misleading slippery slope argument to rile up the apathetic 14-40 white boy hipsters who stand in line for hours to get a copy of ‘Black Ops.’ It’s like To Catch A Predator: International Edition. Same tactics. I’m sure we would all love to live in a world where some dumb ass with a 4-pack of wine coolers and a lifetime supply of condoms never comes walking through the door. X-Box Live, for instance, operates in 41 countries, including Saudi Arabia and the UAE. Operates in the U.S., too, of course, but you still need to obtain a warrant to play with us! NSA bitchez!(a frustratingly recurring omission throughout all of this). I realize I called the NSA “NSA bitchez.” I apologize. But I stand by it.

    To quote the original article:

    According to the minutes of a January 2009 meeting, GCHQ’s “network gaming exploitation team” had identified engineers, embassy drivers, scientists and other foreign intelligence operatives to be World of Warcraft players — potential targets for recruitment as agents.

    Gamers need to know about this! Right after they level up. And take out the garbage. And take a bath.

    If this were about prosecuting the neocons and their Rovian appointments and their appointments doing these things and thinking up imaginative new ways to fuck us all when it was truly lawless and Nixonian and Katrina and 9/11 and Bush…maybe I’d care as much as the fiercely misguided peer-pressure currently calls for, but I’m not interested in prosecuting James fucking Clapper(pardon my language, sir) or the president or Eric Holder or whomever while the actual criminals of Freedom Jesus Military Industrial Complex Enterprises Inc. walks free. Paints pictures. Works for FOX news. Operates think tanks. Gets brand new hearts every six fucking months.

    The propping up of NSA outrage is calling for some heavyweight torque these days.