New NSA Documents Shine More Light into Black Box of Executive Order 12333

https://www.aclu.org/blog/national-security/new-nsa-documents-shine-more-light-black-box-executive-order-12333

by mo • 12 years ago

255 44 12 years ago

I certainly don't understand why any such authority can be given.

efoto• 12 years ago

EO 12333 (http://www.archives.gov/federal-register/codification/execut...) is in place since 1981 - one of the peaks of the Cold War. In this context one can justify the provisions of the EO.

But regardless of the context, any bureaucrat would prefer ubiquitous surveillance. It's up to the concerned citizens to insist on their constitutional rights and press the government to restrict spying on their own people.

npkarnik• 12 years ago

Extralegal power has always been a mainstay of the federal government. For 20th century examples, the FBI was notorious for monitoring and blackmailing Civil Rights leaders (associating the movement with communism), especially MLK. Japanese internment during World War II was authorized by FDR's executive order 9066.

There is literally no legal basis for most of the NSA's activity. But there is plenty of extra-legal handwaving that justifies the NSA's behavior...executive orders, "secret court" FISA rulings, all culminating in the use of this intelligence to assassinate and indefinitely detain/torture those (citizens and noncitizens alike) who are a "continued and imminent threat" to the United States.

"Slippery slope" arguments used to seem weak and contrived. But I honestly can't help but feel we've reached pretty close to the bottom of that slope. In the sense that I feel like our government just kind of makes stuff up as it goes along and only occasionally responds well to the strongest forms of shame.

afarrell2• 12 years ago

I don't know why "slippery slope" arguments are considered a logical fallacy. It is a property of human institutions that movement in some direction makes movement further in that direction more likely. Saying it will definitely happen is still fallacious, but saying it won't make it more likely seems to ignore human tendencies in both individual and group decision-making.

afarrell2• 12 years ago

One amusing non-example of this: legal far marriage in MA led to legal sibling marriage in MA.

I've heard the claim that legalizing gay marriage would lead to legalizing incestuous marriage. I strenuously doubt that it would lead to an actual conscious choice to do so. The arguments against incestuous relationships (that they are likely to be abusive due to power dynamics and the inability to separate families via devorce) are totally separate from the arguments against gay relationships (I cannot actually think of any non-specious ones)

It is amusing to note that Massachusetts, has a law making it illegal to marry your sibling, parent, child, etc. so long as they are the opposite gender as you. When in 2004 gay marriage became legal, the law this failed to prohibit same-sex marriage between blood relatives. This wasn't a policy decision by anyone: The legislature simply failed to update the code.

xooxies• 12 years ago

It's only a fallacy if there is no basis for the caustivie chain that results in the effect we find objectionable. That is to say, if there is no clear way to get from point A to point B, it's a fallacy. If the chain of causility from point A to point B is quite clear, it's not.

tedks2• 12 years ago

I think saying it will definitely happen is pretty widely accepted within social psychology. This is called group polarization, and it's the default state that you'll hit without very, very involved countermeasures: https://en.wikipedia.org/wiki/Group_polarization

The wikipedia article is a very good summary of the phenomenon and the several factors that have a role in creating it.

rtpg2• 12 years ago

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

Article 1, Section 8 of the Constitution demonstrates Congress' authority to create an institution such as the NSA, whose main missions are (according to their website at least) Signal Intelligence and computer network protection. At least in the abstract, this isn't absurd

So much judicial precedent since the beginning of time has meant that people outside the US have less rights than those within it (I do not agree with this concept, but it is a core part of the judicial system as it is today).

Congress continuing to fund the NSA is the legal basis for their existence.

Mentioning slippery slope here is kind of funny since FISA is actually a counter-example! These things used to have no oversight at all! Now there is some minimal oversight (I stress minimal) from the judicial system.

The gov't is 3 separate bodies, each with their own way of viewing things. The judicial system has pushed back on the executive before on these issues, as has the legislative branch. Things are terrible but the system works, if barely.

tedks2• 12 years ago

Congress continuing to fund the NSA is the legal basis for their existence.

According to the rulebook, the Constitution trumps any and all laws Congress makes, and any unconstitutional law is unconstitutional from the moment it hits the books.

Conducting any form of surveillance without a warrant (the constitution doesn't talk about citizens) is illegal.

However, enforcing this requires something more than a rulebook. The USSR and the PRC had elections too; like any playground bully, the response of the state when caught cheating is always "Oh yeah? You and what army?"

In Egypt, just before the collapse of the Mubarak dictatorship (and just before the rise of another, slightly friendlier, military dictatorship), the Egyptian Army rolled tanks into Cairo. But the attitude there was far from confident. So much of the country was taking part in the demonstrations. Would the soldiers fire on a crowd that might include their brothers and mothers? The answer was no, and rather than have their subordinates turn on them, the military leaders turned on Mubarak.

In the United States, what will happen when we have our own Tahrir Square? Armed with the finest of "less-lethal" weaponry, from LRADs (sci-fi sound cannons that for those not in the loop about cool new police tech) to tasers to pepper spray to tear gas to drone surveillance, and just maybe weaponized drones, will the police, faceless and uniformed, be willing to launch tear gas into a crowd containing their families?

Personally, I think the answer is yes, because the American government is simply better at doing its job than the Egyptian government, and that is why Mubarak had tanks while Obama has LRADs.

Get ready for the boot on your face, HNers. If it's not already here it'll arrive soon, and it won't go away.

79523• 12 years ago

It is perfectly possible that the NSA really do need to damage human rights in order to fight terrorism. Just because they are acting improperly doesn't neccessarily mean that their arguments are entirely specious. The internet is hugely powerful for terrorists and the only answer the government have is to take away even more privacy. It is a slippery slope because the danger is real.

Edit. My comment was not excusing the actions of the NSA. I think that human rights should be protected at all costs and the spying should stop. I just think that a real threat probably does exist and this creates a catch 22 in a political sense.

chton2• 12 years ago

The internet is a communication method. It's powerful because it's widespread and fast, but it's not a 'tool for terrorism'. The internet doesn't make bombs or create extremism. People do that. Claiming that violating privacy is the only way to fight terrorism is ludicrous. If their goal was to make the US a lesser target of terrorism, they'd be changing foreign policy, monitoring financial flow and looking for equipment and materials. The TSA, for all their paranoia-fuelled craziness, is a much fairer way to stop terrorism than wide-spread monitoring of a communication channel.

As an aside, terrorism as a general thing isn't new. The US was founded with an act of what would now be considered terrorism (the Boston tea party). Americans are so hung up on their constitution, but they don't believe the founding fathers considered these situations when drafting it? Or did 'talking to each other more efficiently' so radically change things in ways they couldn't foresee?

ObviousScience• 12 years ago

It's much more likely, based on their behavior and activities that they've been caught doing, that they have no intention of genuinely using these powers for fighting terrorists, and instead intend to suppress domestic dissent and enhance policing powers.

It's just that they're counting on people like you to routinely show up when people point out their criminal actions and go "But what about the terrorists?"

Terrorists over the last decade (let's call it 15 years, to include 9/11) have killed fewer Americans than the lies of the president backed by secretive intelligence agencies fabricating evidence to shape politics.

They've also killed fewer Americans than trigger happy police officers.

They've killed fewer Americans - by two orders of magnitude! - than car crashes. In fact, in 2001, about an order of magnitude more people died in car crashes than in the 9/11 attacks.

The danger to the US is not terrorists, because they have a very limited capacity to cause actual harm. Instead, they rely on cowards who can't deal with being hurt without flying in to a blind panic/rage harming themselves as an after effect.

People making the arguments that you raise here do vastly more harm to the nation than terrorists ever directly could, and in fact, were a key portion of Osama bin Laden's plan to dismantle the United States - a feat he could never have hoped to accomplish directly, but which he seems to have made substantial progress at through the combination of public panic, the arguments raised by you here, and the short-sighted power grab of politicians.

Congratulations: you're raising an argument that's part of a trio of forces destroying the US at the behest of a terrorist. Far from your line of thinking stopping terrorists, you're enabling them to win, something that they could never have hoped to accomplish without assistance.

pjc50• 12 years ago

Damaging human rights is itself a form of harm that should go on the other side of the scales from fighting "terrorism". Ferguson reminded people that in many places the average person on the street is far, far more likely to be killed by a cop than a "terrorist".

Terrorism and police brutality are both law enforcement problems, and the solution is the same: enforce the existing law, impartially, publicly and universally.

The additional problem of terrorism is trying to fight it in other people's countries, where the enforcement brutality is even more of a problem. If you count the Iraq war as "anti-terrorism", then the effect of US anti-terrorism has been to kill, injure, abuse or displace far more people than Al-Quaida. ISIS are more deadly still, but they should be regarded as a hostile state rather than a terrorist group.

xnull2• 12 years ago

to fight terrorism

Most of what the NSA does is geopolitical in nature. They are barely involved in CT activity (they do only minor amounts of CT).

https://news.ycombinator.com/item?id=8370973

https://news.ycombinator.com/item?id=8264533

zaphar• 12 years ago

You don't need slippery slope arguments to disagree with these policies though.

You just need to believe that the line you should not cross is "activities that violate our constitutional rights, no matter what the threat to our personal safety might be". and "Changes to those constitutional rights should only happen in the open under a vote by the nation not in secret."

api• 12 years ago

It's far worse in many other countries: China, Russia, even the UK and parts of the EU.

But the alarming thing to me is that totalitarian oligarchy seems to be the direction the whole world is moving. I can't think of any major nation or region in the world that isn't moving toward more concentration of power in fewer hands, less accountability, a more opaque system of government, more concentration of wealth, and less transparency.

For reasons that are not entirely clear to me, the world seems to have given up on the enlightenment -- or at least on the political aspects of it. We're going to keep the scientific and technical aspects, but politically we're going back to the dark ages. In the long term I think we're facing the very real potential of a technocratic dark age, which when it comes down to it is what Orwell, Huxley, and other prescient writers were warning us about.

xnull2• 12 years ago

But I honestly can't help but feel we've reached pretty close to the bottom of that slope. In the sense that I feel like our government just kind of makes stuff up as it goes along and only occasionally responds well to the strongest forms of shame.

In 2010 the Obama administration added an American citizen (Anwar al-Awlaki) to the CIA kill list, circumventing all due process. In a year they were able to strike and kill him with with a drone. They also hunted and killed his son, a 16-year-old US citizen, a couple of weeks later.

The Obama Administration, when challenged, claimed that it has the right to kill in 'dire situations requiring an immediate action to save lives'. However, they were not able to provide, for al-Awlaki or his son, evidence that there was such an immediate threat. First it's an absurdity because they hunted him, and had him on a kill list, for a year. Furthermore, the US had tried a drone strike on al-Awlaki before but missed. In this case there is no question that there was no immediate threat.

Finally al-Awlaki is not known to have participated in any violent action. Rather he was a radicalizer. As an imam, he preached about Islam and about the West. He was popular online (some called him the 'Osama Bin Laden of the internet') where he would exercise free speech (however extremist) but US government partnership with online companies such as Youtube were able to mostly silence him.

al-Awlaki's father even tried - before his son was killed - to get him removed from the kill list. But he was blocked in court.

You mention MLK. There are some parallels - his carrying a radical message and evangalizing others, and his status as a religious and spiritual leader. I do not mean to draw equivalence - only analogy.

Because I wonder what would happen to the next MLK. If al-Awlaki is any precedent then I worry that our guarantees of a fair and speedy trial - jury of peers and all of that - won't be respected when it isn't convenient.

As an addendum I'd like to note that we're seeing more of this. Snowden is allowed to come home and face trial - on the condition (imposed by the US government) that it is not a trial by a jury of peers.

alandarev• 12 years ago

But it seems to be absolutely OK to spy on all the people who use Celsium?

kbart• 12 years ago

Yeah, all I've seen in this article was "Americans, americans, americans..". I though we have already found out that NSA is a world wide problem and, among other adversary effects, poses a serious threat to literary break Internet into regional networks, not that "NSA is bad because it listens to the phone calls of americans".

tehmaco• 12 years ago

The only people who can make the NSA stop/change the way it functions is Americans though.

lawlessone• 12 years ago

Well if you're not american you're guilty until proven innocent regardless. You should have thought of that before you decided to not be born in America.

Down vote all you want it's true. A lot of you are only mad and arguing about it because the same spying you have no problem applying to the rest of the world is blowing back in your face.

quantumcoffee• 12 years ago

Well, that's sort of the point of having a spy agency. It's supposed to invade the privacy of other countries' citizens for the benefit of its own. What country do you live in? I'd bet good money that it has its own signals intelligence service too. Spying on foreigners is a tool of statecraft, and statecraft is a shady business.

justcommenting2• 12 years ago

John Napier Tye tried to change these policies and practices before resigning from the State Department earlier this year. His story is spine-chilling for anyone who cares about these issues and is well worth reading in full, e.g.:

"Before I left the State Department, I filed a complaint with the department’s inspector general, arguing that the current system of collection and storage of communications by U.S. persons under Executive Order 12333 violates the Fourth Amendment, which prohibits unreasonable searches and seizures. I have also brought my complaint to the House and Senate intelligence committees and to the inspector general of the NSA."

http://www.washingtonpost.com/opinions/meet-executive-order-...

higherpurpose• 12 years ago

Yet the administration keeps saying with a straight face that all of the mass surveillance they are doing is "perfectly legal", all while trying to hide it even happens, or trying to dismiss cases against them in Courts through bogus ways.

DanielBMarkham• 12 years ago

It's almost like "we'll just keep repeating this over and over again until you news guys leave us alone. After all, this is old news, right?"

Dangerous stuff.

justcommenting2• 12 years ago

The opening paragraphs of the above-linked piece make this shockingly clear:

"The speech was about the impact that the disclosure of National Security Agency surveillance practices would have on U.S. Internet freedom policies. The draft stated that “if U.S. citizens disagree with congressional and executive branch determinations about the proper scope of signals intelligence activities, they have the opportunity to change the policy through our democratic process.”

But the White House counsel’s office told me that no, that wasn’t true. I was instructed to amend the line, making a general reference to “our laws and policies,” rather than our intelligence practices. I did."

Especially for a public servant working on internet freedom issues, I can't imagine how Tye must have felt. Tye's story really made one of Snowden's initial remarks concrete to me: "..but if you realize that that's the world that you helped create....you realize that you might be willing to accept any risk, and it doesn't matter what the outcome is, so long as the public gets to make their own decisions.."

I hope that the courage of John Napier Tye will inspire others.

matt_morgan• 12 years ago

It's election day in the US. Please join the ACLU

https://www.aclu.org/secure/become-freedom-fighter-join-aclu

and remember that we can make this an issue to which politicians must be sensitive.

coldpie• 12 years ago

I noticed this year that almost every article I read about court cases that I care deeply about were either defended or brought by either the ACLU or the EFF. Then I started a monthly donation to both. Both organizations are doing a lot of good work.

New NSA Documents Shine More Light into Black Box of Executive Order 12333

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