Wednesday, February 12, 2014

Come back 4th Amendment. We miss you. Yes, we overreacted and hurt you. We're sorry. We didn't mean it. It won't happen again. Really.

Class action lawsuit to stop the NSA
The 4th Amendment is staging a comeback. It's been a long time coming.

Today Rand Paul launched a class action lawsuit against the NSA:
"In 2013, the revelation that the National Security Agency was collecting and storing the metadata from the phone calls and e-mails of millions of American citizens -- without any suspicion of criminal activity -- served as a striking wake-up call for the country. Americans do not like to think of their government as some Orwellian leviathan, engaging in surveillance tactics that we only expect to see in oppressive autocracies. That such surveillance could be going on in what is ostensibly the freest nation in the world is a chilling thought indeed... For all these reasons, we have elected to file a class action suit on behalf of all Americans whose rights have been violated by the NSA's unconstitutional spying programs. We are requesting a ruling confirming that the blanket collection of Americans' telephone metadata without reasonable cause violates the Fourth Amendment of the U.S. Constitution, and requiring that these programs be halted immediately and that all previously collected data be purged from government databases. It's time to hold government officials accountable for their habitual trampling on the Constitution and on our rights as individuals. Our case will be an important step down the road of restoring our Constitution and reining in our own overreaching federal government."
For anyone so inclined, the complaint is a long, legalistic, but interesting read:

The Dividist is IN. Not sure if signing the form makes us a party to Rand Paul's class action lawsuit or  a potential donor, or political spam fodder or all of the above. But we're in, nevertheless.

Yesterday saw "The Day We Fight Back Against Mass Surveillance" on-line protest.  We also signed up on that website. Clicked the banner, sent automatic e-mails and placed a call to my congresscritter in D.C. Posted the graphic here and linked to the site:
WHAT WE CAN DO -"Congress is considering two major bills.The USA Freedom Act curtails NSA surveillance abuses.The FISA Improvements Act attempts to legalize bulk data collection of phone records.We need to tell Congress to pass the USA Freedom Act and amend it to make it even stronger."
There was a mixed bag of sponsors including libertarians, privacy advocates, liberals, occupiers, civil liberty advocates, and internet mega-corporations. Brian Fung of WaPo sorts it out:
"In December," wrote Susan Molinari, Google's VP of public policy, "we unveiled a set of government surveillance reform principles that address many of the recent concerns around government surveillance. In Congress, Rep. Sensenbrenner (R-Wis.) and Sen. Leahy (D-Vt.) have introduced legislation — the USA Freedom Act — that would codify many of these principles."

As much as today's protests resemble the SOPA/PIPA battle of 2012 in that they oppose an alleged governmental injustice, the so-called "Day We Fight Back" is also about advancing a concrete proposal. That's an important step. From what we know about Occupy Wall Street and other distributed movements, the inability to coalesce around a policy idea makes it much harder for a protest to sustain itself over time. As with any political campaign, people switch off when they lose confidence in what a movement (or a candidate) stands for. It's not enough to know what it stands against."
The day before yesterday Glenn Greenwald unveiled the preview version of his new investigative journalism platform Intercept. Arguably, Greenwald's website will be the most significant of the three events this week in the fight to restore some semblance of the protections afforded by the 4th Amendment.  Greenwald is the journalist most closely associated with and a primary conduit for Eric Snowden's revelations of NSA data collection programs targeting Americans.

You don't have to like Edward Snowden. You don't have to respect him for what he did. But you do have to acknowledge that our national conversation about what we have lost and the consequent opportunity to restrain our burgeoning surveillance state is due primarily to his actions. For that we owe him a debt of gratitude.

Our history shows that surveillance abuse by the federal government is never corrected until we Americans have our collective noses rubbed in it, get angry, and demand action. Intelligence agency reform does not happen by itself in Washington D.C. These revelations are a necessary if not sufficient condition to find the path to salvage our constitutional protections. Intercept is the most likely vehicle to deliver the kind of revelation that will continue to fuel the outrage.

Thus far Intercept has photographically presented the massive infrastructure we are funding to maintain the surveillance state and made the connection between NSA surveillance and our growing assassination program.  Greenwald continues to document the extent to which the Obama administration stands on the shoulders of the expansive Bush/Cheney unitary executive expansion and uses identical claims to push executive power higher and further:
"James Clapper is saying exactly what Dick Cheney and George Bush before him said, and those three said what John Ehrlichman and Henry Kissinger said before them about Ellsberg. It’s all spouted with no evidence. It’s rote and reflexive. It’s designed to smear and fear-monger. As Professor Ludlow notes, “Fear is even used to prevent us from questioning the decisions supposedly being made for our safety.” Maybe it’s time for journalists to cease being the leading advocates for state secrecy and instead take seriously their claimed role as watchdogs. At the very least, demand evidence before these sorts of highly predictable, cliched attacks are heralded as something to be taken seriously."
Hopefully, Intercept will continue to show the way.

As the constitutional scholar Yogi Berra once said "It is deja vu all over again". This abuse and overreach was perfectly predictable. The slippery slope was easy to see. The historical analogs were easy to find.

Six year ago - Many of the same people and organizations associated with the events this week, including Greenwald, Paul, the ACLU and EFF, warned of exactly what we are seeing now when the FISA "reforms" were passed in July 2008. Passed with the flip-flopped vote of Senator Barack Obama and signed by President George W. Bush.   Even the Dividist could see this coming. This from our July 10, 2008 post commenting on FISA passing with modifications that opened the door to the very NSA abuses we are learning about now:
"Feingold expresses a hope that a future Congress will take this up and restore our Fourth Amendment protections. You tell me - What do you think the likelihood that any President or Congress will voluntarily reopen this political can of worms? I actually believe it will happen, but not without a powerful catalyst, and it won't be pretty. It will happen only after the inevitable abuse of these new powers are revealed to the American people. Why inevitable? Because every single expansion of government power over citizens is ultimately abused by those entrusted with that power. I don't know when that will happen, but I know it will happen. 
Outrage over executive branch abuse of eavesdropping and domestic surveillance was the reason for the original FISA legislation in 1978. When FISA was modified by the Patriot Act, the loosened restrictions were immediately abused by the FBI, and that abuse continued for years. With these even looser restrictions, there will be more abuse. It is only a question of time, a question of how the abuse will be revealed, and a question of how badly and how many Americans must be hurt before enough outrage forces Congress to act. Perhaps the abuse will happen under President Obama. Perhaps the abuse will happen under President McCain. Perhaps it will happen under a President four or eight or twelve years from now. It will happen."
The Dividist was a great deal more optimistic six years ago than he is now.  But we have a chance now to take steps to reverse this headlong rush to a surveillance state. Edward Snowden gave us this chance. At some point every American simply needs to decide for themselves what kind of a country they want this to be.  Do we want to be a country ruled by fear? Or do we want the country entrusted to us by the founders with guaranteed individual rights and freedoms protected from arbitrary government search, seizure, and censorship. It is our choice. Let's not blow it.


Hugh Fuller Schitte said...

Six year ago - Many of the same people and organizations associated with the events this week, including Greenwald, Paul, the ACLU and EFF, warned of exactly what we are seeing now

Greenwald was not arguing against this stuff 6 years ago. 6 years ago he was blaming everything on the GOP and Bush/Cheney. His books have blamed everything on the GOP and Bush/Cheney. He didn't start criticizing Democrats until Jan 2013. And then, only tepidly.

Good job shilling for one of the infotainment media's biggest liars.

Dividist said...


Thanks for stopping by and leaving a comment.

If you are arguing that Glenn Greenwald is a progressive democrat and not a conservative republican. Stipulated. But at no point did I say anything different in this post. So I don't know who you are arguing with. It's not me.

But if you are arguing that Greenwald has not been a consistent defender of civil liberties, constitutional protection, and executive restraint against overreach by both Bush and Obama administrations, you are flat out wrong.

Yes he attacked Bush and the Republicans about executive overreach, surveillance without warrants or probable cause, indefinite detentions without trial, and war power claims without congressional approval. All with good reason.

Within two months of Obama taking office in 2009 Greenwald was taking the Obama administration to task for embracing and expanding the Bush/Cheney unitary executive.
I was quoting him in my posts at the time:

Obama Endorses the Bush/Cheney Unitary Executive. Again and again and again. -2/19/09"

Meet the new unitary executive -
Same as the old unitary executive"
- 03-03-09

He has made many more similarly pointed criticisms of the Obama administration in particular and democrats in general for failing to uphold constitutional principles and protections over the years. You can find many more of his quotes along these lines by clicking on the "Unitary Executive" tag at the end of the post.

There are hypocritical conservatives who have defended Bush but attacked Obama for the same violations of constitutional protections and executive overreach. I am not one of those.

There are hypocritical liberals who have attacked Bush but defended Obama for the same violations of constitutional protections and executive overreach. Greenwald is not one of those.

He has been a consistent defender of constitutional protections and executive restraint regardless of which party controls the White House.

On these issues I'd rather align with a principled progressive (and/or conservative) with a passion for civil liberties over hypocritical partisan republicans or democrats every time.

Not sure what camp you are in.

Hugh Fuller Schitte said...

These "pointed criticisms" you reference are where he goes 85% of the way to criticism, then holds back 15% and it's the most crucial 15% he withholds -- but you're not going to see that if you firmly believe he's a heroic critic.

Maybe you could remove your GG Fanclub buttons and baseball cap before you read his writing next time?

If you're satirizing his fans, I probably can't see that through the weak attempt, and failing one, at satire.

If you can list one thing he's said that was both insightful, and thoroughly critical, well shit -- I might have to give you a slender bit of footing on which to stand.

Dividist said...

Let' replay the tape HSF. You posted a comment saying "He didn't start criticizing Democrats until Jan 2013" I posted two links showing that you are factually wrong, that he was very critical of Obama on civil rights issues within two months of Obama taking office in 2009 and explained how you could find many more examples since.

Now, you are complaining that he is not critical enough, only "85%" as critical of Obama as you think he should be. That's kind of ridiculous, and if you actually read his quotes - inaccurate:

GG on Obama's Libya War Action 2011:
"..what is undeniable is that Obama could have easily obtained Congressional approval for this war -- just as Bush could have for his warrantless eavesdropping program -- but consciously chose not to, even to the point of acting contrary to his own lawyers' conclusions about what is illegal. Other than the same hubris -- and a desire to establish his power to act without constraints -- it's very hard to see what motivated this behavior."
GG on Obama's claims to supercede judicial review of classified documents:
"The brief filed by Obama on Friday afternoon has to be read to believed. It is literally arguing that no court has the power to order that classified documents be used in a judicial proceeding; instead, it is the President -- and the President alone -- who possesses that decision-making power... That's about as clear as it gets. There is only one branch with the power to decide if these documents can be used in this Article III court proceeding: The Executive. What the President decides is final. His decision is unreviewable. It's beyond the reach of the law. No court has the authority to second-guess it or to direct the President to comply with a disclosure order. That's the mentality"
His more recent comments are even more critical. If that's "85%" I'm good with 85%.

Regarding my "GG fanclub", please note I am also citing/linking Rand Paul and Freedomworks (Koch Bros)lawsuit/criticism which is presumably more to your liking.

Bottom line, Greenwald is constitutional lawyer and a progressive. That makes his critique of Obama executive overreach far more effective, credible and damaging than criticism levied by those whose motivation can be painted as partisan hackery or Obama Derangement Syndrome.

If you can't see that because your personal animus for Greewald overrides your rational faculties, I can't help you.

Hugh Fuller Schitte said...

Oh. Forgive me.

I didn't realize a minor quibble on a tiny area of process was a serious criticism of the entire Obama administration. If that's the kind of "proof" you find for GG being a heroic critic, no wonder you think you "can't help me." You can't even help yourself!

So let's recap.

I ask you to prove GG is a staunch critic of Obama and the Democrats prior to 2013.

You offer a tepid wishy-washy statement in which GG says Obama could have chosen a different procedural bit of rhetorical gamesmanship.

So in your world, "criticizing" Obama can be as mild as saying his shoes didn't match his belt.


For a satirist, you sure do lack satirical chops and for a political analyst, you sure do lack analytic chops.

But I am sure you amuse yourself with this blog, and that's really all that matters. Keep smiling at that guy in the mirror!