Two Senators Say the NSA Is Still Feeding Us False Information | Hacker News Reader

Two Senators Say the NSA Is Still Feeding Us False Information

theatlantic.com

443 pointsnealabq78 comments

Senator Wyden has been remarkable in how far he has been willing to legally stick his neck out while so many other politicians either quietly cower in fear or hop on the mass surveillance bus. He'll be getting both my public support and campaign contributions for as long as he's in office.

Just in case people forgot, he was also the primary Senate opponent of the PROTECT-IP Act (the Senate's version of SOPA)

http://projects.propublica.org/sopa/W000779

He also introduced Section 230 of the Communications Decency Act, which essentially makes ISPs and services not liable for content posted or transmitted. It seems obvious now, but was a watershed event in early Internet case law.

http://en.wikipedia.org/wiki/Section_230_of_the_Communicatio...

He's been the opponent of pretty much all recent privacy breaching legislation.

I wonder what he's hiding? /s

At some point, hopefully one of them with enough information will walk on to the floor and exercise their Article I immunity.

[Edit: It seems I was misreading this. See child comments for more details, or just ignore this comment. Sorry for the confusion.]

I don't think they could. I'm no constitutional lawyer (I'm not even American), but someone pointed out on here recently that the clause says "[they] shall in all Cases, except Treason, Felony, and Breach of the Peace [have immunity] for any Speech or Debate in either House" ... and since discussing classified secrets would count as a felony (possibly even Treason, given some of the opinions about this story), they could be prosecuted.

Is that incorrect?

In the UK, MPs could discuss state secrets in Parliament and be protected under Parliamentary Privilege, but not so in the USA, as I understand it.

That's... wildly incorrect. It's not even a tortured reading, it's a "we made it up" reading.

The actual text is:

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

The Speech or Debate clause has never been doubted to extend to anything a member may say on the floor of their house.

I don't follow. Are you saying that I changed the meaning by my choice of ellipsis? How so? I didn't intend to, sorry.

It says "except Felony". Releasing classified secrets is a felony. So it sounds like it means that a Senator who released classified secrets during a speech in the house would not be immune from prosecution for doing so.

Is that not how it has been interpreted? Do you have any examples?

Would a Senator be safe in discussing the classified details in the House? I notice that all have chosen not to. Would you say that's due to public pressure rather than the threat of prosecution, then?

You're failing to recognize the semicolon. "and for any Speech or Debate in either House, they shall not be questioned in any other Place" is a separate clause from the first part of the sentence, not a clarification of the scope.

Gravel v. United States[1], a Supreme Court case from the 1970s related to Senator Mike Gravel reading the Pentagon Papers (classified material) into the Senate record, established this clearly:

"Rather, his insistence is that the Speech or Debate Clause at the very least protects him from criminal or civil liability and from questioning elsewhere than in the Senate, with respect to the events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record. To us this claim is incontrovertible.

[...]

We have no doubt that Senator Gravel may not be made to answer —either in terms of questions or in terms of defending himself from prosecution—for the events that occurred at the subcommittee meeting."

With regard to this:

> Would a Senator be safe in discussing the classified details in the House?

"House of Congress" and "House of Representatives" are two different things. "the House" generally refers to the latter. "Their House" refers to the House of Congress the member actually belongs to.

The clause is at least ambiguous on the question of whether a Senator has immunity in the House of Representatives, and whether a Representative has immunity in the Senate, but in this case it's unimportant. My hope is that a Senator will walk on to the floor of the Senate, or a Representative will walk on to the floor of the House of Representatives.

[1]http://scholar.google.com/scholar_case?case=2739100783028836...

Thanks. I was reading the semicolon as a list separator (like a comma), not a sentence separator (like a full stop / period). The use of a lower-case "and" after the semi-colon pushed me in that direction. It looks pretty conclusively like I was wrong. I have updated my comment.

+1 from me for a senator to disclose the government's lies, then, so there can be an informed debate about the costs and benefits of mass surveillance.

The most common use of the semicolon is to join together two related clauses that could each be separate sentences, so the "; and" is interpreted like the start of a new sentence. That is:

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same. For any Speech or Debate in either House, they shall not be questioned in any other Place.

Read the Speech and Debate clause. It says that whatever they say in either House shall not be questioned in any other Place. That is to say; they cannot be prosecuted for anything they say in either House.

The other part (the first part) of the statement merely states that they shall not be arrested while in either House (or going to and from either), unless their arrest is for Treason, Felony and Breach of the Peace.

It helps to turns the language around and split it up:

"They shall be privileged from Arrest during their Attendance at the Session of their respective Houses in all Cases, except Treason, Felony and Breach of the Peace.

[They shall be privileged from Arrest] in going to and returning from the [the Session of their respective Houses in all Cases, except Treason, Felony and Breach of the Peace].

For any Speech or Debate in either House, they shall not be questioned in any other Place."

Any Senator disclosing classified details would be violating Senate rules which would then place him or her subject to action by the Senate itself.

> Any Senator disclosing classified details would be violating Senate rules which would then place him or her subject to action by the Senate itself.

There's only so much they can do, aside from blocking further access to classified information through official channels and stripping committee assignments.

Expelling requires a 2/3rds majority, which I doubt they'd get, and Powell v. McCormack established that Congress can't prevent the initial seating of a duly elected, constitutionally qualified member.

I think a credible argument can be made that disclosing activity which directly and obviously contravenes the constitution is not treason.

I'd say the builders and enablers of an international secret totalitarian surveillance system are the ones guilty of treason. They are the traitors who should be on trial.

Well it's definitely not treason, but that's because our constitution defines treason in very narrow terms (which I think is good).

The (classified) Pentagon Papers [1] were read into the congressional record without Mike Gravel being successfully prosecuted.

I assume as the exclusion for Treason, Felony and Breach of the Peace is before the semicolon, it doesn't apply to the "they shall not be questioned in any other Place" after the semicolon.

[1] https://en.wikipedia.org/wiki/Pentagon_Papers#Leak

And the question in the lawsuit had nothing to do with concern about Sen. Gravel's immunity, the concern was about immunity for his staffers.

If Snowden isn't charged with treason, then I doubt a US senator will be charged with that. I think if they did the outrage and Wyden's support would be even bigger than it is for the "random NSA analyst" Snowden.

I for one hope he will be running for president soon.

Treason is defined by the Constitution and it is explicitly stated that Congress cannot modify its meaning. To whom that we are at war with has he helped? I supposed if he gave the information to the Taliban, but I doubt that would suffice.

Text taken from Wikipedia article

Article III, Section 3. This part of the Constitution strips Congress of the Parliamentary power of changing or modifying the law of treason by simple majority statute. It's not enough merely to think treasonously; there must be an overt act of making war or materially helping those at war with the United States. Accusations must be corroborated by at least two witnesses. Congress is a political body and political disagreements routinely encountered should never be considered as treason. This allows for nonviolent resistance to the government because opposition is not a life or death proposition. However, Congress does provide for other less subversive crimes and punishments such as conspiracy.[g]

To whom that we are at war with has he helped?

That's an easy question: nobody. We're not at war with anyone.

The Congress thinks it's found an easy way around the ugliness of a formal declaration of war (e.g., the AUMF). But here's a wrinkle. If we haven't declared war, then we're clearly not at war in a legal sense. And thus, it can't trigger the treason definition.

No major US war in the past 50 years, including Korea, Vietnam, Iraq I, Afghanistan, or Iraq II has had a "formal declaration of war"; all were enabled by authorizations in the manner of the AUMF.

> If we haven't declared war, then we're clearly not at war in a legal sense.

The Supreme Court has long recognized that acts of Congress that have the effect of declaring war don't have to use any particular language.

It has also recognized that a declaration of war by Congress, whatever its form, is sufficient but not necessary to initiate a state of war, as war can be initiated by the other party attacking, declaring war, or by other means.

Nothing about "being at war" requires a "formal declaration of war." Not in the Constitution, nor by statute, nor at common law. See: http://en.wikipedia.org/wiki/Declaration_of_war_by_the_Unite....

Even so, an MP who stood up in a time of war and in public gave information that could "be of benefit to our enemies" would still face prosecution for Treason.

And that's kind of the point.

Which war? The war in Afghanistan?

As no war has been officially declared since 1945, and we still have treason and traitors, I suspect you could use the War on Drugs as an excuse if you tried hard

Wyden probably has 'nothing to hide' then. That's the chilling/scary part of all this. Soon, anyone who's anyone but a perfectly boring and average Joe Normal will have no desire to speak out against the gov't.

It's not "I'm innocent with nothing to hide". it's we are individuals, and anomalous. A regimented army cannot allow a question to weaken it. "Profile this 5th columnist metadata, and corral them. We're at war".

Senator Wyden and some others have been doing a fabulous job during this issue and over their terms. My only thought or concern is if they will still keep their senate seat during the next election. Compared to some things the NSA is doing, rigging elections seems to be simple.

Wyden is effectively invulnerable in Oregon. A rigged election would not go popularly unnoticed.

Right, but what about Mark Udall in Colorado? Udall is the 2nd Senator in the title of The Article.

Just google "jane harman alberto gonzalez" for a few informative articles.

It is not just Wyden, there are other senators that are not as secure in their seats. We should just keep this in mind next election cycle.

As a non-US citizen, I'd like to support him too. Although I suspect that would be seen by the NSA as support from 'rogue foreign interests', which would be used as a stick to beat him with.

They probably just haven't gotten something on him yet. Or perhaps he is the sort that says "Do your worst!" and ignores them, so they don't bother. Both are probably a rarity in government.

Agreed. A while ago I went back and read a bunch of news stories from the 90s about similar battles, and Wyden was playing more or less the same role in those stories too.

I'm happy to say that one of my state's two senators, Mark Udall, is standing with Wyden on this. Unfortunately, none of the others are right now.

I think the subtitle gets to the heart of the issue: "How can a democratic republic function when the bureaucrats are constantly misleading the people?"

It feels more and more like a deceptive charade that the US is actually a democratic republic. It is increasingly clear that in a number of significant areas the shady bureaucracy is taking action without the public's consent.

From an outsiders view, that's my interpretation too. Have to wonder just how many people are under gag orders for various secret things. An uncharitable view would be that the democracy bit is just to keep the public from realising they have no control.

I often wonder how the US will be seen in history books, and it's quickly slipping further into the evil section.

> I often wonder how the US will be seen in history books, and it's quickly slipping further into the evil section.

That will depend upon who wins.

The government certainly seems out of control with regard to secrecy & privacy, but these just hint at the larger issue at hand: the government regulatory arm is out of control in all of its duties and functions.

Many regulatory agencies can pass new rule changes that have widespread impact on productivity and business. These rules are not subject to electoral review, since these are non-elected officials making decisions.

It's time we reign in government on all levels, to increase the freedoms of individuals, businesses, and even the states.

https://en.wikipedia.org/wiki/Yes_Minister#Inspirations

Or, if you dislike comedic form, the Crossman Diaries are insightful in the working of the civil service:

http://www.amazon.com/s/?&field-keywords=Richard+Crossman+di...

We separate "politics" from our bureaucracy. It's quite difficult to, say, fire a civil servant.

Don't get me wrong, I think the spoils system was worse. (Hmm, why do I think that...) But the independence of the civil service is intentional. Elected officials and not very effective oversight.

Doesn't it seem like the United States has gotten too big for our Democracy to function correctly anymore? Maybe it is time to break it up... Or at least move authority back down to the smallest level:

  Solve problems in your local township.

  If can not resolve:

    Go up to County level for resolution.

    If can not resolve: 

      Go up to Sate level for resolution.

      If can not resolve: iterate as necessary.

(Edited for better formatting).

So you want to make it even easier than it already is for corporations to control govt?

About that: Currently (until I get enough evidence/data to change my opinion) I subscribe to an amalgamation of John Perkins' and Jerry Mander's point of view on Corporations: They should not be bigger than their locality, also expressed as smaller is better.

As soon as their operations can no longer be felt in the same geographical area as any other part of said corporation, they have gotten too big and need to be broken back up again.

When corporations were smaller, it seemed there was better control and oversight. If they fouled their nests, it was eventually (preferably rapidly, but not always the case) obvious in the same locality and could be subjected to local response/censure, until wrongs were made right or they were closed.

Overall, more localized government would seem to also provide for better "vote with your feet:" If one does not like the local consensus, one may move to another locality, possibly not that far away from the first, where the environs are more to one's liking.

I am purposely using subjective language such as "seems" since I know I must not be as smart as others in these arenas. But so far, the ideas above have my support/backing/agreement.

fwiw.

I might support this thinking ... except that we would be the only country in the world doing it. Wouldn't we essentially be rolling back the entire industrial revolution? What happens to manufacturing, commerce and IT when everything is the size of a hamlet? Would there be no more national banks? Would be go back to having local banks print their own currency?

Now that banks have grown to the size of requiring Central Banks, is that such a good thing? I have read much suggesting that it easily lends itself to Ponzi schemes, and so far, we have continued to choose/been forced to pay up (bail-outs/too big to fail/too big to jail, etc.).

Financial booms/crisis seem to be cyclical, if one looks over a large enough period of time. It also seems that cycles before Central Banks didn't have such huge swings/blow-back. We tended to recover from the damage quicker and it was more localized.

It still seems like a bit much if I can't spend my local Bank of America branch dollars outside the town I'm in. Regulation is one thing but that's practically medieval.

Well, it does look like I am taking the Luddite side of this...

I am stuck with a basic conundrum: There are problems for humans that are larger than any one national government, and it makes logical sense for a world government to exist to address problems of that scale.

But when I stop and think about the types of people that are _attracted_ to positions of power, I shudder and decide I like my congressional deadlock, thank you very much.

And that does not even begin to get to the part where once a problem solving-body exists, all problems begin to look like nails to the hammer...

That brings me back around to potential answers that look much smaller than the current (working?) models.

Humans have conducted commerce well enough before there were national/international banks, since finance is mostly a matter of trust and faith, at the core. I do not doubt that there would continue to be commerce conducted over vast distances, even if our current financial institutions were greatly shrunk back down to something closer to local banks again.

But I agree that my suggestions sure sound like "boy I miss the good old days..."

It seems like the root of the problem here is using intelligence sources to target all civilians. As the senators point out, there's no way the NSA is going to automatically be able to tell from an email address or random internet packet the citizenship status of the person sending it. This should have been pointed out and addressed years ago, but instead they deliberately lied to Congress and then forbade Congress from coming clean with the public. What a mess.

But there might be an even deeper problem, if you can believe it. I really don't see the purpose of electing people as representatives to serve on a committee if the committee is not given all of the relevant details, is sometimes lied to, and is forbidden from releasing any of the details to the public. I think the executive branch and specifically the president is taking on waaaaaay too much power here. In times of war, this might be understandable, but a democracy cannot endure a never-ending state of war. I hope that many are beginning to see this.

I thought this New Yorker cartoon[1] about the all of the iceberg being above the surface was pretty apropos, and I'm not sure the licensors got the point when they gave it the keywords "global warming" and "sea ice"[2].

(Also, it's really difficult to permalink to New Yorker cartoons in a way that they get credit)

[1] http://www.newyorker.com/images/2013/07/01/p465/130701_daily...

[2] http://cartoonbank.licensestream.com/LicenseStream/Store/con...

The NSA fact sheet claims: "Any inadvertently acquired communication of or concerning a US person must be promptly destroyed if it is neither relevant to the authorized purpose nor evidence of a crime."

Even if this were true -- and Wyden and Udall are saying it's not -- it should not be good enough. All communications obtained without a lawful warrant should be destroyed even if they are evidence of a crime, I submit, and I would even go farther to say that no information obtained by the NSA about US persons should ever be able to be used as evidence in a court of law.

This is not because I want people to be able to commit crimes with impunity; it's because Federal criminal law is so far out of control that the government can find a charge to hang on anyone it doesn't like. Also, the NSA is an arm of the DoD; as such, its job is to keep the country safe from external attackers. If the kind of massive, invasive data collection we are reading about is necessary to do that job -- a point I am not conceding, but one that many people seem to believe -- at the very least we must make sure it is never used for any other purpose.

What sort of coverage is this getting in the USA?

I had a quick look at nytimes.com and didn't see anything. I realize that HN is kind of an echo chamber, especially about these events, so it would be nice to know as a non US resident how this is all panning out in major news centres.

When it is discussed -- which is rare -- the American media is focusing on Snowden and his whereabouts. There is almost no discussion about what he has exposed.

As it typically is, the media is aligned with the bureaucracy.

This is infuriating. What can we do?

Nothing.

I don't accept that.

you're accepting it. Just by mere being present while your freedoms and rights are being raped, you're accepting it. Something along the lines of "estoppel" and "laches" concepts. What you're thinking while it happens - doesn't matter as you'll get used to it with time.

It varies. The US news cycle has become so rapid that these issues that involve subtlety become hard to cover (hey, Kim karashian has big tits and she just had a baby, more after this commercial break..)

Fwiw, I read about this in the Denver post before I saw it here. Mark Udall is a Colorado senator though.

FWIW "Kim Kardashian is fat now" has been a top news story for weeks and week. The vapidity of our "news" is stunning.

We have excellent quality news on PBS, but it has quite a small audience. An awful lot of people just want to hear about tits, zoo animals, and local news.

Last thing I heard was that the Chicago Blackhawks won the Stanley Cup and that a red panda lost from the Washington DC zoo was found safe in DC...

Referenced in the article is an NSA PDF. See this instead:

http://webcache.googleusercontent.com/search?q=cache:xiyLnPk...

The actual PDF can't be requested at the moment.

http://www.nsa.gov/public_info/_files/press_releases/section...

Internal Server Error - Read The server encountered an internal error or misconfiguration and was unable to complete your request.

And now an error notice: "It seems you have experienced an error."

I guess they took it down. It responds with a 404 according to Fiddler.

Edit: Here's a Pastebin'd version of the text in case the Google cached version expires: http://pastebin.com/5d7rHmYe

Thanks for that edit. I have a feeling this was a deliberate removal of that doc. And actually their error message looks like it was written by a lawyer, "it seems you have experienced an error"... as in, maybe it wasn't an 'error', but appears to be one.

Am I the only one who thinks the headline is at least slightly misleading?

I had assumed the NSA was caught in a lie, but that wasn't what either Senator said.

They said instead (to paraphrase) that the NSA mentioned they must promptly destroy information inadvertently collection about American citizens, but the NSA failed to mention that they have no reasonable way to figure out whether a given file belongs to an American or not.

While I agree that this is something important that the NSA should include for transparency's sake with any list of talking points covering minimization, it's not the same thing as "feeding us false information" either.

This may help clues into what the scope of NSA copying of Internet traffic is; if they were only tapping into international/domestic transfer sites then they'd be able to fairly easily tag information as "probably not U.S." and discard the rest.

Given the difficulty in determining what's what it would seem they are instead at the very least copying everything going to/from major cloud providers, which certainly sounds different in scope.

Wyden and Udall discuss the point where the NSA is misleading, but the point where they lie is covered in a "classified attachment": http://www.wyden.senate.gov/news/blog/post/wyden-and-udall-t...

Unless I'm misunderstanding something, this seems worse than lying to me. The primary concern addressed by this point is: as an American citizens, will they store my information? The intellectually honest answer to that question is something along the lines of "yes, there's a very good chance we will", but they've worded this point to make it seem like the answer is "no". In doing so, they get away with lying while being able to claim they are not. On balance, this seems more likely to deceive the electorate than a straight-out lie would be; such a lie would be more likely to be called out and uncovered.

I'm not even close to a lawyer, so again, I may be misunderstanding. But that's how I read it.

> Unless I'm misunderstanding something, this seems worse than lying to me.

Well, isn't it good that I pointed it out then! ;)

There's no way to move forward on these types of discussions if we always talk past each other, words mean things and we should use them appropriately.

Marcy Wheeler suggests that the inaccuracy "has to do with the US person contact info collected along with targets. Even a comparison of the minimization order and the NSA’s claims make it clear US person communication can be swept up more easily than they claim."

http://www.emptywheel.net/2013/06/24/wyden-udall-to-alexande...

It's called the 'mushroom treatment': Keep in the dark and feed BS.

I wonder if Senator Wyden or others like him have noticed the irony of learning first-hand how frustrating it is to deal with an entrenched bureaucracy that puts up obstacles to protect itself from outside interference, even when it is working against the well-being of the people it is supposed to be working FOR.

Some might be excused for thinking I was describing the Congress...

Lying liars trained to lie, cheat, manipulate, steal, and deceive are lying, cheating, manipulating, stealing, and deceiving.

I'm shocked!

The enemy is within.

Anyone have the link to the 15 talking points mentioned.

Ron Wyden's Senate page has the full text of their letter as well as the NSA "fact" sheet.

http://www.wyden.senate.gov/news/blog/post/wyden-and-udall-t...

Second Paragraph. "15 talking points": http://www.nsa.gov/public_info/_files/press_releases/section...

I was unable to find them and it doesn't appear there's a press release with that file on the NSA's public site. If there was a working link it appears to have been changed or removed.

Posted elsewhere: http://pastebin.com/5d7rHmYe

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