The catch, as we now know, is that all of this—the ever-expanding surveillance in time and space, the reasoning behind it, and the FISA court ruling that approves it — has evolved at such high levels of secrecy that only a handful of people in Congress (very few people anywhere outside the NSA, and probably not all that many inside) know anything about it. This, it turns out, is what Wyden, a member of the Senate Intelligence Committee, meant when he cryptically said, way back in October 2011, that "there are two Patriot Acts in America" — the one that anybody can read and a "secret interpretation that the executive branch uses" but that nobody on the outside knows about at all. The public Patriot Act allows "bulk" collection of data; the secret interpretation defines "bulk" far more bulkily than anyone could have imagined.As Kaplan points out, "all but one of its judges were appointed by the Supreme Court's Chief Justice John Roberts." So it's scarcely surprising that they "activist" judges with a heavy authoritarian bent.
And here's the problem. The program was supposed to have checks and balances, but really it doesn't, not anymore. The FISA court was created in the wake of Sen. Frank Church’s hearings, which unveiled decades of illegal conduct by the U.S. intelligence community. Intelligence agencies had to get a warrant from the FISA court before they could conduct surveillance of suspected spies inside the United States. ...
The court's powers were expressly limited because its sessions, deliberations, and rulings were secret; the court issued its extraordinary ruling on the meaning of "relevant" data without letting anyone know about it. In other words, the NSA's authority and the Patriot Act's scope were expanded way beyond almost everyone's understanding — in total secrecy. Theoretically, the ruling could have been appealed to the Supreme Court. (The new surveillance programs, even more than the earlier ones, raise constitutional issues, especially regarding the Fourth Amendment, barring unlawful search and seizure.) But in reality, this was impossible because no one knew the ruling had been made — and because there is no procedure for appealing a FISA court decision. [my emphasis]
Digby also calls attention to Kaplan's article, emphasizing the boys-with-toys aspect that the also discusses, Famous http://digbysblog.blogspot.com/2013/08/famous-emoprog-fred-kaplan-on-boys-and.html Fred Kaplan on the boys and their toys Hullabaloo 08/02/2013. The term "emoprog" is a hastag term that is used to diss progressive critics of President Obama. Digby is obviously using it in a satirical sense, since she's enthusiastic about the article, as I am, too. (The Urban Dictionary says that #emoprog "was seen as divisive and has been superseded by Puritopian." Digby says of the boys-with-toys factor:
I would say the same logic applies to the drone war as well. And none of this is any more benign than the "technically sweet" temptation to create weapons that could destroy the entire planet. It is obvious to me from what we've seen of the Big Kahunas in charge of our surveillance state (like Keith Alexander) that this is exactly what happened.In another post (The biggest back-up file on earth 08/03/2013), she calls attention to this PBS Newshour segment which gives some idea of the staggering amount of data the NSA and other federal agencies are collecting and storing, at this point with no effective concern for privacy or meaningful legal restrictions, it seems, NSA Collects 'Word for Word' Every Domestic Communication, Says Former Analyst 08/01/2013:
This report is part of a series PBS Newshour started last week on the surveillance issue. There are two additional related videos and an accompanying article, Larisa Epatko, Ex-NSA Analysts: Agency Collecting All Electronic Communications 08/01/2013. These show the full interviews, of which excerpts are used in the report above.
Ex-NSA Analysts on Their Top-Secret Discoveries 08/01/2013:
Former Inspector General [Joel Brenner] Defends NSA Programs 08/01/2013:
Brenner here speaks here as an advocate for the NSA. As always with the defenders of the massive surveillance programs, it's important to listen carefully to how they word their reassurances. Brenner, for instance, around 1:42 denies that "files on Americans as a general rule" or "compiling dossiers on people the way J. Edgar Hoover did in the 40s and 50s or the way the East German police did" are good examples of the carefully lawyerly wording that often proves to be evasive mealy-mouthing in the surveillance issue. Do electronic files count as "files" for him? Are there millions of files on Americans being compiled under a specific rule for not "a general rule"? And since J. Edgar Hoover didn't have e-mails to capture in the 40s and 50s, no "dossiers" based on them would be complied "the way J. Edgar Hoover did in the 40s and 50s."
Tags: domestic spying