It's great to have another voice speaking up against mass surveillance. Still -- you're telling me these agencies are in all likelihood committing crimes against the American people, but we need to be careful not to hurt their feelings?
I've been reading Tim Weiner's Enemies, a history of the FBI and one thing stuck with me. That was that there was a period of time when the FBI was incredibly useless because of a previous Supreme Court ruling that wiretapping was illegal and then FBI agents all began to misunderstand what they could and couldn't do. That lead to a breakdown in communication and procedure between different offices and several terrorists that could have been caught slipped by.
I'm not saying that Brand is right, but there is reason to worry that this could happen again. What needs to be done is a clear declaration of our fundamental rights and a watchdog court that won't let the agencies overstep in their pursuit of justice. The agents have to know their boundaries, we have to know their boundaries, and we have to know that they know their boundaries. The whole FISA court stuff is ridiculous.
It would also be wonderful if all law enforcement officers were required to wear uniforms or identify themselves when in the course of their duties.
If the FBI identified an organized crime hitman who killed 20+ people and left no evidence other than making incriminating phone calls, is it wrong for them to place a tap on his phone line once they have probable cause that he is a hitman?
His hypothetical literally described the standard for getting a warrant.
Probable cause is based on evidence.
> His hypothetical is actually how warrants are supposed to work.
No, its not.
> Law enforcement have probable cause to suspect someone of being guilty. If they can make a strong argument about why the person is probably guilty, they then get a warrant to search for evidence in homes, phone calls, emails, whatever.
And that "strong argument" is based on factual evidence that was either received through mechanism other than search and seizure, was the product of prior search and seizure in conditions that do not require a warrant, or was the product of prior warrant-based searches and seizures.
If there was no evidence left other than what was sought in the warrant, there would be no basis for probable cause to support the warrant.
> Probable cause is based on evidence.
From wikipedia, "Probable cause" is a stronger standard of evidence than a reasonable suspicion, but weaker than what is required to secure a criminal conviction.
In other word, you can get a warrant when you don't have enough evidence to secure a conviction, which in turn may lead to gather sufficient proof of guilt (or exonerate the suspect, I suppose).
Again, if there is no evidence left by the "hitman" except the calls for which the warrant is sought, as specified in the hypothetical, than there can't be probable cause to support the warrant. There can't even be reasonable suspicion. In fact, without some kind of evidence, the only thing that could support the desire to seek the wiretap is arbitrary prejudice.
Nobody is arguing against that. What people are complaining about is, among other things, the bulk collection and retention of records; the gathering of records upto 3 degrees of separation from a suspect; etc.
And, even if the FBI could know that a hitman left a series of incriminating phone calls without already having evidence which could be admitted against the defendant of the content of those phone calls, a wiretap based on a warrant issued after the fact wouldn't recover those contents.
Further, I don't think anyone in the thread has argued that wiretaps aren't useful in criminal prosecution, the issue which started this was a poster expressing that it would be wonderful if wiretaps were categorically outlawed, which does not require believing that they aren't useful in certain circumstances. It could, for instance, proceed from the belief that the capacity is so likely to be abused covertly in circumstances where it is inappropriate if its existence is tolerated at all, that the usefulness it has in the circumstances to which it is appropriate is outweighed.
Now if someone tells the police that they've been getting incriminating phone calls, well then that seems like more reasonable probable cause, and doesn't strike me as morally dubious.
Why would it be wrong for the FBI, under the supervision of a court order, to tap this person's phone to see if he is the killer?
Keep in mind this is not a broad NSA dragnet here. This would be a targeted wiretap driven by probable cause and governed by the federal rules of evidence. The GP said "It would be wonderful if all wiretaps were ruled illegal," and we're exploring that idea.
Personally, I would love to see a two-factor commit with all warrants. All warrants should require two judges to sign off on them, one federal judge and one state judge where the wiretap will be carried out.
The other thing I would like to see is some sort of "cost" that the agencies must bear to be able to request warrants. It should cost each agency money to apply for warrants and they should have a limited budget each year to spend on warrant applications. At the end of each year, to apply for increases in this budget, they should present an equal number of both cases which they would have liked to pursue warrants on someone, but it was deemed outside the budget and cases where they pursued a warrant and got one, but the person turned out to be innocent. Such a policy applies market forces to limit rampant wiretapping and phishing expeditions. Instead they will adjust to only use their warrants on those people who actually should be wiretapped. This would also help prevent unilateral action by a single agent or team, without appealing to another independent group with power of the purse over warrant applications. Individual agents and teams would try to get warrants for all their suspects, but the group with power of the purse has the responsibility to dole out warrant applications according to merit so that the agency doesn't run out of them before year's end.
A court order is not a warrant. This is the heart of the discussion you are trying to get into. The 4th amendment is very clear:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
If we allow a court order or a subpoena to continue to be all that LEO/LEA's to need to get whatever information they want, they will stop going to the courts for warrants, and worse, they will end up doing FISA style bulk orders/subpoena's.
Bottom line, if you have probable cause, get a fucking warrant, else, fuck off. (and companies should be requiring warrants for access to customer information too, not just setting up a pay portal for LEA's to peruse at leisure.)
The opinion that kicked off this sub-thread is that all wiretaps should be illegal. "All." That would also eliminate wiretaps that would be authorized under a warrant.
What if they hear this guy's name uttered by multiple mafia thugs on the street, as a top hitman? And they find the guy is friends with some mafia members? That doesn't warrant real evidence he killed anyone (random hearsay + just being friends), but it definitely creates some suspicion.
> It would also be wonderful if all law enforcement officers were required to wear uniforms or identify themselves when in the course of their duties.
I see that now. "Hello, Don Corleone, I'm an undercover police officer, but please pretend you don't see my uniform".
I have an issue with letting them listen--especially if I'm on the other end of the phone, for example, taking their order for pizza or arranging a playdate for my kids or something. It's the few-hops-away rule that is very easily justifiable that creates surveillance states.
That same logic puts the friends of drone operators in a strange place, right? They kill civilians too.
You don't see anything wrong with cartel hitmen? The kind who lines up heads on the side of the road and torture people to death for effect?
> That same logic puts the friends of drone operators in a strange place, right? They kill civilians too.
Not quite. First off, it's much more likely that your cartel acquaintance will catch a bad case of drive-by shooting one of these days, kid or no kid. Secondly, sure, I'd feel weird knowing a drone operator, but AFAIK, they don't torture and kill civilians on purpose, it does make a moral difference.
Per the article, what the dissenters appeared to have done is reject the inquiry into legality as beyond the proper scope of the board's review. Its a fine distinction, to be sure, but there's a difference between a 3-2 split with three finding the program illegal and 2 finding it legal and a 3-2 split with 3 finding it illegal and 2 finding "we shouldn't be looking at legality at all".
To what effect? Was it really that big a deal?
This really presents an interesting problem, I think. Reading the effect of secret government surveillance from the past century, it's hard to not believe that that surveillance won't be abused. It's been abused in so many other countries and so often in this country (where we hold ourselves in such high regard). At the same time, the power to terrify and commit mass murder has become much easier as technology advances. So what to do?
However, I just want to state that we can't completely ignore security either. If bombs are going to go off around us (we cannot make 100% of people non-violent), it's not as if we could stand still and take no action either.
If you catch a criminal, but do so by subverting the Constitution, you should feel shame, not pride. When you have the power the agency has, it is of utmost importance that values be palpable in the air among staff. Power without obligation to something higher like the Constitution and Bill of Rights will always be debased in favor of achieving concrete objectives.
If we're worrying about hurting their feelings, we're having the wrong debate.
There is reason to worry that a great many things could happen again. An increase in the number of Zoloft prescriptions in the greater Washington, DC area is pretty far from the top of my list of concerns.
But, point taken.
Its worse than that: we have to be careful to avoid making them cautious about committing crimes against the American people, the rule of law, and the Constitutional order of government.
Criminal acts, in general, don't require harm (some specific crimes may involve a harm as a required element, but that is not generally the case -- generally, crimes exist to prevent harm, but that does not mean a harm must be realized for a crime to occur), and, in any case, depriving the American people of the popular sovereignty by exercising the power of government inconsistent with the constraints in which it is granted by the people through the Constitution is, in and of itself, a harm.
In the wake of the 9/11 attacks, 1,200 Muslims were arrested. Some were beaten (this is according to the Justice Department's own Inspector General of the time). Hundreds were held for months. Absolutely none of them were found to be with al-Qaeda.
These are just two examples of MANY. You know what's scary? The spying that the NSA, FBI, and CIA do gets people put on lists. There are lists of people to arrest in the event of an attack. Hoover of the FBI had something like 70,000 people on a list during the era of Communism fear. The vast majority of those people were innocent of any crime.
Over the past century, these lists have been kept openly and kept secretly when different administrations denounced them. But they have been kept (at the FBI at least. Hoover hid them illegally). Letting the NSA spy on us and treating us as if we were assumed criminals before innocent is a terrible way to waste away your fundamental rights.
And the scary thing is we wouldn't even have known that we were being spied on for sure unless Snowden said something.
These are crimes against the American people. You can't tell me that the FISA court not rejecting any warrants is a good thing. Out of tens of thousands of requests, not one gets rejected? That is a failure of the checks and balance system our founding fathers set up. THAT is definitely a crime against the American people.
Antagonizing a cop just to be a dick will probably result in those minor charges he would have ignored if you were nice, getting written up with a smile on his face. That's 100% your fault in that case.
That it may be difficult for a court to unambiguously distinguish this abuse of power from legitimate application of discretion doesn't mean that it is legitimate.
We have to look at the worst-case outcomes and make our safeguards against them; anything else is inviting disaster.
> ruining somebody's life as an abuse of power by cops--especially since they are given carte blanche to do so.
The mandate of law enforcement across the USA is to freely destroy peoples lives? Interesting...
Yes, I recall the NSA and other government agencies having such self-policing groups.
Tell me, do you really in your heart of hearts think a corrupt organization (say a police dept in a specific place.. if pressed for an example, say Maricopa County in Arizona?) has a functioning IA group?
The federal government has an IA group too. Many of them. I'm sure that if Snowden had raised his concerns with them, they would have gladly worked with him to solve those problems.......
That all said, going back to the very first interaction--you and the cop--we see that it becomes purely a decision on the cop's part whether or not you are going to be sent down into the machine.
Justice should not be so arbitrary, but here in the US it oftentimes is; don't pretend otherwise.
EDIT:
As for safeguards...the state can deprive you of years of freedom and set you free afterwards with an "oops". That's bullshit, even if the safeguards finally kick in. And if you end up with "resisting arrest" or just antagonizing the system or embarassing a DA, those safeguards seem to magically fail.
That "best" is pretty damn shit.
"In June 1919, Attorney General Palmer told the House Appropriations Committee that all evidence promised that radicals would 'on a certain day...rise up and destroy the government at one fell swoop.'
First they came for some foreigners and I did not speak out - because I was an American.
Eroding the protections I'm guaranteed, for example against general search warrants, is causing me immediate harm.
What is the harm? Something that belongs to me has been taken from me against my will, through the use of coercion, intimidation and force.
As an American, how would I know? It is against the law to read my mail; but if the government has been secretly reading my mail without my knowledge, then by your logic (and I use that word lightly here) I have not been harmed, since I didn't know about it?
Do you even know the meaning of the word "rights" ? My rights have been violated; I don't have to demonstrate harm.
They've also been providing tips to the DEA: https://www.eff.org/deeplinks/2013/08/dea-and-nsa-team-intel...
How is subverting due process by engaging in parallel construction not a crime against US citizens?
Of course, this statement heavily relies on what you mean by "demonstrably" and "harm". What is the standard of proof you would require to demonstrate harm? As you say it, it sounds like one of those terms that you can forever pushback against and say "but X didn't demonstrate harm sufficiently".
The most likely harm that I would consider widespread would be the chilling effect. For example, Chris Hedges and others tried to sue the gov for the NDAA's chilling effect, but once they got to court it was thrown out because they had "no standing". So it's pretty obvious that you can't say that a court ruling on something demonstrates harm, because the courts themselves are part of the harm occurring.
As a matter of fact, I bet I could have a pretty good claim that the NSA program has harmed me. I am an Iraq combat vet with PTSD, and happened to be someone who has talking about the NSA doing this stuff since the early 2000's. At my last meeting with the VA, I specifically stated that I was concerned at the confidentiality of my talks due to their being entered in an electronic system that I suspected the NSA and other three-letters would have access to. Therefore I quit my PTSD treatment because I felt I could not trust the VA system or any claims of doctor-patient confidentiality. I actually asked the doc to make sure she typed that into the system so that in the future I could use it as evidence if the need ever arose. I'm doing fine now mostly of my own volition, but what I think about is how many other vets had the same gut feeling and kept their problems hidden and suffered greatly for it?
This is only one example that I think is pretty concrete.
Think about it. Your doing what your told over and over is good for the country. You really don't understand all the ins and outs but suddenly what you have putting all your effort into is declared criminal by some. If your a mid/low level worker how are you supposed to feel? Brush it off and blame those above you? Hang your head in shame? There certainly are enough people out there; if not posting here; who would excoriate you for not knowing what any one one with a brain should have known/etc/etc
The upside is, it's most probably democracy which is winning today.
Mass surveillance is a crime, dude. Somebody needs to be punished to set an example so that civil servants don't overstep their bounds again. Somebody needs to be punished to stop what will certainly turn into an instrument of repression.