From Civil War Balloons To The Patriot Act and Massive Data Mining

Professor Lowe in his balloon

Stereograph showing Professor Thaddeus S. Lowe observing the battle from his balloon “Intrepid” while soldiers in camp hold the balloon’s ropes in Fair Oaks, Virginia. Published: Hartford, Conn. : The War Photograph & Exhibition Co., No. 21 Linden Place, 1862 May 31. To me this photograph is both funny and a fascinating bit of history. Since I climbed trees as a kid I can appreciate the professor’s line of sight, he is at about tree top level. Why not pick a especially tall tree and get a young recruit to climb up. On the serious side he was establishing the importance of air power and technology, the ability to track adversary movement and intelligence gathering.

In case anyone missed it, some of the basics of the NSA’s surveillance program, What You Need To Know About The Government’s Massive Online Spying Program

PRISM appears to closely resemble the warrantless surveillance orders issues by President Bush after the September 11th, 2001 terrorist attacks rather than a dragnet data collection operation, but the NSA has the capability to search through the company’s servers for whatever it likes. To collect data, analysts in Fort Meade key in search terms designed to produce an “at least 51 percent confidence in a target’s ‘foreignness.’”

FaceBook and Google are both denying that they simply hand over any and all data or provide direct access to their servers at the mere request of government officials.

back when Bush was found to have enacted his very own massive surveillance program without telling Congress or going to the FISA Court for warrants, conservatives thought that was great. In their view any violation of the law was justified in the supposed cause of national security. One example from a far Right conservative site that is alleged to represent the height of conservative intellectual thought and constitutional expertise, called American Thinker, NSA surveillance and the contrapositive By Greg Richards

We can apply this to the NSA anti—terrorist wiretaps.  President Bush’s political opponents and some civil libertarians are upset that he approved wiretaps without a court order.  AT and other blogs have already demonstrated that doing so is (a) well within the letter of the law and (b) is in accord with practices of previous presidents.  But for those still not convinced, let’s try the contrapositive:

President Bush receives information from the NSA or the CIA or the FBI or some other source that a conversation is very likely to be carried on between a suspected terrorist and a foreign source.  Suppose the President does not approve this wiretap, or, what amounts to the same thing, suppose he applies to a FISA judge for a court order and the order is refused.  What does President Bush do then?

AT and Richards would gladly give Bush dictatorial powers, even though presidents take an oath to uphold the Constitution. Laws passed by Congress supersede presidential directives. That is case law. Period. See President Truman versus U.S. Steel as a prime example. Even in a war time emergency preferential power is not unlimited. At the time Bush violated the law, and was thus guilty of high crimes that merited impeachment, the patriot Act did have a spy first get a warrant later provision. The NSA or FBI could perfumer any surveillance they liked for 72 hours and then get a warrant. Conservatives back during the Bush years were very prone to using thriller spy novel scenarios to justify any trampling of the law by the executive branch. Something the Constitution was written to guard against. In our over two hundred years of assistance there have been very few years we were not engaged in some kind of combat somewhere. Which brings us to a history lesson from Michelle Malkin. Which is like taking lessons in how to make your marriage work from Rush Limbaugh, History lesson: The crucial differences between Bush and Obama’s NSA phone surveillance programs

It is certainly schadenfreudelicious to see Al Gore and assorted Democratic tools going bonkers over news of President Obama’s radically expanded phone call data collection program — which he, ahem, inherited from the Bush administration and has apparently now widened far beyond anything Bush ever enacted or proposed.

But unlike Gore and company, I am not going to engage in a full, NSA-bashing freakout. Some of us have not regressed completely to a 9/10 mentality.

I will instead provide you with a sober reflection on why I supported the Bush NSA’s work and why Obama’s NSA program raises far more troubling questions about domestic spying than his predecessor.

As longtime readers know, I supported the NSA’s post-9/11 efforts to collect and connect the jihad dots during the Bush years. When left-wing civil liberties absolutists were ready to hang Bush intel officials, I exposed the damned-if-you-do-damned-if-you-don’t hypocrisy of Bush-bashers who condemned the administration for not doing enough to prevent the 9/11 jihadi attacks and then condemned it for doing too much. Bush defended himself ably at a press conference in December 2005 — refresh your memories here.

Malkin still cannot write, make an argument without using a straw man liberal. Malkin is also a great case against using the falsehoods she used before to justify her new argument. Bush’s program was ruled illegal because, as mentioned before, he thought being president was the same thing as being absolute ruler. Or as John Yoo argued, still a respected constitutional legal scholar on the far Right; if the president does it, it is legal. Liberals never argued – one or two obscure liberal bloggers don’t count – that Bush could not take full advantage of FISA, they generally argued that he could not break laws passed by Congress or violate the Constitution. The difference between the Bush program and the Obama program is that president Obama is not violating the law as far as we know, today. That is the history lesson. If anyone dislikes what President Obama is doing, and doing within laws passed by Congress that’s fine. By all means don’t like what you see as over reach on national security – and do something about it with my full support. Though do not forget that Congress – with almost all conservatives and quite a few Democrats passed the laws that allowed this president or any president to conduct this type of surveillance. Rep. Jim Sensenbrenner (R-WI) makes a good poster boy for the faux outrage and shameless hypocrisy of pundits like Malkin and AT. here’s a history lesson, Author Of Patriot Act Now Seeks To Limit Government Surveillance

Rep. Jim Sensenbrenner (R-WI), who helped draft the PATRIOT Act, is exploring options to narrow a provision of the law that allows the National Security Agency (NSA) to obtain telephonic metadata on nearly all Americans.

[  ]…Section 215 of the Patriot Act allows the government to order businesses to turn over “the production of any tangible things” if it can prove that “there are reasonable grounds to believe” that the tangible things sought are “relevant to an authorized investigation .. to obtain foreign intelligence information… or to protect against international terrorism or clandestine intelligence activities.” The government has been obtaining metadata records from telephone companies for years and has used three-month secret warrants fromt the Foreign Intelligence Surveillance Court (FISA) court since 2006. ( Malkin conveniently leaves out that what she is so outraged about and so vvvery different from a program started under Bush)

So the brilliant mastermind Jim Seensenbreener is now saying that the law he helped draft is so  vaguely worded that someone like the president might not keep within limits that Jimbo meant to include but forgot.

Then we have Congressional reps who are saying, yea well, he might be obeying the law, but President Obama has not kept us fully informed as to the details of the program. let’s say that Sen. Jeff Merkley (D-Ore.) – a pretty decent guy – is not completely bullsh*ting everyone. And even if he is might have part of a point. Why hasn’t Congress kept it’s foot in the door and demanded regular reports on the details of PRISM or any other activities authorized by the FISA Court. This is the Congress we’re talking about,  Mad about NSA’s overreach? Blame Congress. There’s plenty of fault to go around, from Bush to Obama to NSA itself. But the legislative branch truly failed us

Did you notice the word I used in each of the other cases? The key word: law. As far as we know, everything that happened here was fully within the law. So if something was allowed that shouldn’t have been allowed, the problem is, in the first place, the laws. And that means Congress.

As the Washington Post reports, two laws in particular. The Protect America Act of 2007 passed the Senate 60-28; Democrats split with 17 voting in favor and 28 against, while Republicans were unanimous in support. In the House, Democrats opposed it by a wide 41-181 margin, while Republicans vote for it 186-2. However, Democrats can’t simply pass the blame; they had majorities in both chambers and could have brought different measures to the floor. And then the next year the FISA Amendments bill had a similar partisan breakdown, although with a bit more Democratic support. The latter was then extended last year. This time, a majority of Senate Democrats voted for it, with only 20 dissenting, and they were joined by three Republicans; in the House, most Democrats still opposed it, while all but seven Republicans voted yes.

Of course, if Democrats had really wanted to change the law, they could have done so during the 111thCongress early in Barack Obama’s presidency, but they did not.

The point isn’t so much which party in Congress is responsible; it’s that both parties have more than enough responsibility to go around. Republicans simply flat-out favored pretty much a blank check, with only a handful of exceptions; Democrats were legitimately split, but overall failed to draft good laws. Give those Democrats who did oppose surveillance, along with the tiny GOP civil liberties caucus, the credit they deserve – but overall, this policy happened because Congress wanted it to happen.

One of the worse kinds of framing that the media does, and too many Democratic voters go along with is the if four conservatives do it and two Democrats, both sides do it and both sides are just as bad. Numbers matter. Not thinking everything the president does is legal just because he is president matters. Not everyone is guilty – the champions of civil liberties are still most left of center, the party that at least stays within the law is Democratic, not conservative. If Congress changes the law and severely curtails surveillance by any government agency, this president will at least abide the law. Though let’s step back and take a breath. Clearly conservatives are being dishonest and disingenuous – they should shrub their archives from the Bush years if they do not want to end up looking ridiculous – oh, its too late. There will be lots of noise, more congressional hearings, and nothing to very lintel will change because America decided 12 years ago to trade liberty for some imagined security. These screen captures below are from a satire Twitter account, but the tweets are real,

Nothing to Hide'

Nothing to Hide1

Nothing to Hide

Nothing to Hide 2

Those people are ridiculous. They should be taking a serious interests, beyond seat-of-the-pants notions about privacy, before they tell the world how naive they are. Why Privacy Matters Even if You Have ‘Nothing to Hide’.

On the surface, it seems easy to dismiss the nothing-to-hide argument. Everybody probably has something to hide from somebody. As Aleksandr Solzhenitsyn declared, “Everyone is guilty of something or has something to conceal. All one has to do is look hard enough to find what it is.” Likewise, in Friedrich Dürrenmatt’s novella “Traps,” which involves a seemingly innocent man put on trial by a group of retired lawyers in a mock-trial game, the man inquires what his crime shall be. “An altogether minor matter,” replies the prosecutor. “A crime can always be found.”

One can usually think of something that even the most open person would want to hide. As a commenter to my blog post noted, “If you have nothing to hide, then that quite literally means you are willing to let me photograph you naked? And I get full rights to that photograph—so I can show it to your neighbors?” The Canadian privacy expert David Flaherty expresses a similar idea when he argues: “There is no sentient human being in the Western world who has little or no regard for his or her personal privacy; those who would attempt such claims cannot withstand even a few minutes’ questioning about intimate aspects of their lives without capitulating to the intrusiveness of certain subject matters.

Maybe, fingers crossed, everyone will thoughtfully consider changing the Patriot Act ( the most ironic name for legislation since Bush’s Clear Skies Initiative) and reign in the worse excesses. Obama is right when he says we have to have some compromise between privacy and security, but some of us think that compromise may have drifted too far into compromising our civil rights and spending too much on massive, and mostly worthless data mining.

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