Tuesday, June 25, 2013

Focus on Our Government -- Not on Snowden

What to Look for from Our Government and the News

Watch Out for Diversionary Tactics. Why is so much attention being directed at Edward Snowden? Is he really a traitor – an enemy of the State? Why is he being castigated by massive numbers of Republicans and Democrats in Congress and members of the present administration for his recent actions? The answer is simple. It is to divert attention away from the very thing Snowden has protested – our government's malfeasance and disregard for the Constitutional rights of our citizens. As long as they can keep Snowden in the headlines, and as long as they can keep the conversation fixed on him, they can keep themselves and their own misdeeds out of sight.

Don't Believe Everything You Hear. Most of what we have heard from government officials and spokespeople has been very carefully worded to make things revealed by Snowden are more devastating that the really are. They say that the safety and security of our people has been compromised by the release of secret information. Here are just a few examples:
Rep. Mike Rogers Chairman of the House Intelligence Committee warned “It’s dangerous to our national security and it violates the oath that person took.”
John Boehner, Speaker of the House, claimed, The disclosure of this information puts Americans at risk.”
James Clapper, Director of National Intelligence, complained that recent leaks could "render great damage to our intelligence capabilities." In addition, when asked whether or not the NSA collects “any type of data at all on millions or hundreds of millions of Americans.” He responded, “No, sir. Not wittingly.” He has since admitted that his testimony was “the least untrue” statement he could make, whatever that means. But, regardless, it means that he was lying to Congress and the American people under oath and should be charged with perjury.
Jay Carney, White House Press Secretary, recently stated, “Leaks of classified information that cause harm to our national security interests are a problem, a serious problem …”

But, where's the damage? This litany of fault-finding and blame permeates much of our federal government. However, nobody has yet described in a meaningful way just what damage has been done other than to embarrass our government and its elected representatives.

Jay Carney Went a Step Further. He added “... and they’re classified for a reason…” He is absolutely right in this statement. They are classified for a reason – and that reason is to hide the government's actions in a cloud of secrecy from the American people, not our enemies. Our enemies most likely already know about our spying on their citizens because they are most likely doing the same to us. So, when our government wants to do something that is illegal or not in the best interests of our country and its people, all they have to do is just classify it as top secret, to prevent the public from knowing what they are really doing.

Privacy Compromised Without Consent. Our government's secret acts of espionage were conducted without the knowledge and consent of the people whose privacy was invaded. We, the people, had no say in the matter. Our government took it upon themselves to determine for us which rights are important to us and what are not. We were not consulted. They made those decisions on their own in privacy and cloaked them in secrecy to keep them from learning about them under penalty of imprisonment. The American people have a right to know when and why their privacy is being invaded. Our freedoms are being eroded, our Constitutional rights are being trampled, and our government is destroying our democracy. America is becoming a surveillance state and, in certain circumstances, takes on the demeanor of a police state. The lack of oversight and protection against the potential misuse of data collected is a severe indictment of both previous and present administrations, as well as Congress itself.

Bush's Bad Behavior. In 2005, George Bush admitted publicly that he had ordered the National Security Agency to eavesdrop on Americans without ever seeking constitutionally-required court-approved warrants – an impeachable offense -- but Congress chose not to pursue that route, which lets us know just how important our freedom and rights are to them. At least, the United States Supreme Court did step in. They ruled that the President does not have that kind of power within the Constitution. Bush had the power to protect the nation, but his surveillance actions went beyond that.

How Things Have Changed. Our present government is doing some of the same things on an even broader scale, but with the tacit approval of the feckless Foreign Intelligence Surveillance Court (FISC), a body set up specifically to provide oversight for foreign intelligence surveillance, to approve or disallow the issuance of warrants, and whose rulings and opinions are kept top secret.

About the FISC. The Foreign Intelligence Surveillance Court consists of eleven judges. Three of them are in Washington, D.C., and the other eight are spread out in eight different states across the county. Appointments are made by the Chief Justice of the Supreme Court, with no apparent review, oversight, or approval process for these appointments. Oddly enough, the four most populous states (California, Texas, New York and Florida), which have 1/3 of the country's population, do not have any representation on this court. California alone has a greater population that the bottom 21 states added together, but that's beside the point.

The Express Lane for Surveillance Warrants. Whenever the administration wants a warrant, it contacts one of the eleven judges – frequently, if not usually, by phone – and presents its case to them. It is entirely a one-sided presentation representing the administration's best interests, with no legal counsel to represent the other side. And the administration cannot always be relied upon to make an accurate presentation of facts. At one point, the Court charged that the FBI and Justice Department officials had submitted “erroneous” information to the court in more than 75 applications for search warrants and wiretaps.

Rubber Stamped Warrants. In most cases, the one judge makes the determination, not the entire “court.” And here's the shocker: Out of 33,949 requests for warrants in the Court's history, only 11 have been declined. That has given credence to the claim by Russell Tice, a former NSA analyst, who said "It is a kangaroo court with a rubber stamp." To indicate that this body maintains credible oversight over the issuing of surveillance warrants is somewhats laughable. My personal perception is that the FISC is a court in name only, and that it functions more to streamline the process of securing warrants than evaluating their purpose and value relative to the rights of the people.

The FISC Has Lower Standards. Keep in mind that the FISC operates at a lower standard of scrutiny than a “real” court.
Under the Fourth Amendment of the Constitution, a warrant must be based on probable cause to believe that a crime has been or is being committed. However, the FISC does not abide by this Constitutional stipulation, Instead, it makes its rulings based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power, regardless of whether or not the target is suspected of actually engaging in any criminal activity.

However, if the target is a "U.S. person,”
the FISC judge has to find probable cause that one of four conditions has been met:
(1) the target knowingly engages in clandestine intelligence activities on behalf of a foreign power which may or may not involve a criminal law violation;
(2) the target knowingly engages in other secret intelligence activities on behalf of a foreign power under the direction of an intelligence network and his (or her) activities involve or are about to involve criminal violations;
(3) the target knowingly engages in sabotage or international terrorism or is preparing for such activities; or
(4) the target knowingly aids or abets another who acts in at least one of the above ways. (Source:Electronic Privacy Information Center)
Please note that a recurrent keyword in each of these conditions is “knowingly.” How many of the hundreds of millions of people caught up in the tide of communications surveillance in the U.S. are likely to fit any of these descriptions? And yet, these hundreds of millions are being forced to give up totally private or sensitive information about themselves without their knowledge or informed consent. This could include privileged communication between lawyers and their clients, or doctors and their patients, as well as various other types of very personal information.

The Final Question. Now that I have stated my case, I present this final question to the reader: Which is more reprehensible:
    a huge government apparatus that breaks (or stretches) the law, tramples on the
        rights of millions, and covers it up with a blanket of secrecy, or
     – one private citizen who broke his oath of silence and risked his entire future to 
        expose clandestine actions that could be harmful to the public?

    Or, to put it another way:

    Which is worse?

    A secret surveillance program,
         with secret submissions
              to a secret court,  

                   for secret data searches 
                        of secret targets,
                             with secret (rubber-stamp) rulings,  

                                  secret justification for the rulings, and  
                                       subsequent secret actions  
                                            that violate our Constitutional rights?

    Or . . .

    Breaking an oath of secrecy
         by revealing those secret practices
              that violate our Constitutional rights?

    We are now living in a high-level surveillance state.
              What's next -- a police state?

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