Let’s Debate Fourth Amendment Rights, and Also Send Snowden to Leavenworth

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Glenn Greenwald’s new man-crush, Edward Snowden

Following the Edward Snowden revelations, I find myself accused of statism, warmongering and worse. It seems some of my libertarian friends — whom I will remind that I voted for Harry Browne in 1996 and for Bob Barr in 2008 — are trying to turn this into a policy debate. And yesterday I had a spirited telephone conversation with my friend Ali Akbar (a guy whose name alone ensures extra scrutiny at airports) about the Fourth Amendment considerations involved. Necessarily, I found myself in the position of arguing that the alleged violations of privacy in the NSA program — about which Glenn Greenwald and others are raising such hell — are purely theoretical, with “privacy” understood as an intellectual abstraction rather than as any practical reality. My attitude is, “No harm, no foul,” and I haven’t seen one scintilla of evidence that any innocent person has been harmed by this program.

Well, let’s all debate that as a matter of policy, but what enrages me about the Edward Snowden case — as with the Bradley Manning case — is that junior personnel cannot be permitted to exercise a heckler’s veto over U.S. national security policy. It doesn’t work that way.

Look, I was at Fort Meade when my son took an oath to obey orders from the President of the United States. Certainly readers by now know that I am no admirer of the current occupant of the White House, nor can I think of any policy of the current president that I support. For that matter, the previous President of the United States had some policies with which I strongly disagreed, including the harebrained notion that we could impose democracy on the people of Mesopotamia at the point of a bayonet. Nevertheless . . .

An Army private doesn’t get to decide which orders he will obey, and he has a sworn duty to maintain operational security necessary to the completion of his appointed mission. For the love of God, people — when my son left Fort Benning on a bus, I was careful not to disclose the time of his departure because who knows if some jihadi wacko might want to attack a busload of Army privates.

OUR ENEMIES WANT TO KILL US ALL!

What part of that is so hard to understand? So while I’m perfectly fine with having a debate about the permissible extent of NSA intelligence-gathering, and might even be persuaded to agree with Senator Paul that they’ve gone too far, I think that a 29-year-contractor illegally disclosing classified documents that he was obligated not to disclose is what it is: A felony, which makes Snowden an international fugitive from justice.

Certainly, I share the amusement of my conservative friends who delight in this NSA scandal as an embarrassment to The Most Transparent Administration in American History — “How’s that Hope and Change workin’ out for ya?” — but this does not mean that we cannot also smile at a future spectacle: Our President using every lawful power of the United States government to pursue, apprehend and prosecute Glenn Greenwald’s newest man-crush.

Damn, I hate it when I have to agree with Dianne Feinstein:

The NSA program is “lawful,” Feinstein told reporters last week, saying that the program only accessed “metadata” about U.S. residents’ telephone and online communications. “There is no content involved,” said Feinstein, who is the chairwoman of the Senate Intelligence Committee. “In other words, no content of a communication. … The information goes into a database, the metadata, but cannot be accessed without what’s called, and I quote, ‘reasonable, articulable suspicion’ that the records are relevant and related to terrorist activity. … [T]errorists will come after us if they can and the only thing we have to deter this is good intelligence, to understand that a plot is being hatched and to get there before they get to us.”

Trust me on this: The political advantage for conservatives here is to highlight first, the hypocrisy of Democrats in defending Obama’s use of policies for which Democrats condemned the Bush administration, and second, the negligence that has resulted in someone like Edward Snowden obtaining security clearance. And if Rand Paul wins the GOP nomination in 2016, maybe he can fix all this mess.

But at least I won’t have to vote the LP ticket again, eh?

 

67 comments

  1. reminds of “A Few Good Men”

    “You can’t handle the truth!” These words could very well have been spoken by Clapper, Holder or Obama himself:

    http://www.bing.com/videos/search?q=youtube+jack+nicholson+you+can't+handle+the+truth&mid=2686AFBD4B8B81FF0D782686AFBD4B8B81FF0D78&view=detail&FORM=VIRE4

    Especially after the famous quote. Listen to the rationale. Sound familiar?

    Jessep: You can’t handle the truth! Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who’s gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago’s death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives…You don’t want the truth. Because deep down, in places you don’t talk about at parties, you want me on that wall. You need me on that wall.

    We use words like honor, code, loyalty…we use these words as the backbone to a life spent defending something. You use ‘em as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it! I’d rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don’t give a damn what you think you’re entitled to!

    http://www.whysanity.net/monos/fewgood.html

    Can you hear Obama saying the same words? Attitude and all.

  2. Your feelings about agreeing with Feinstein mirror the way I felt about listening to Greenwald this weekend on CNN while I was doing the FMJRA at McD’s. The 4th Amendment violation is straightforward, Patriot Act or no Patriot Act; they were collecting info on people they had no reason to believe were terrorism suspects, any more than the 90-year-old grandma from Sioux Falls getting hassled by the TSA. Also, this is kinda personal for me, but I never liked the NSA – every single one of those strategic intel bastards acted like the sun shone out their ass, especially when they were dealing with us uniformed serfs in INSCOM, ESC, and whatever the Navy calls its SIGINT people. Most of all, there’s no way you’re going to convince me that some of that “metadata” isn’t being used for political purposes, because with Obama it’s all political.

  3. You are so wrong – you can’t imagine the many ways this evil regime will use any and all information they gather against you. Look at the IRS, the EPA, and the most recent presidential election

  4. The fact that such data was collected on me without probable cause is, prima facie, both harm and foul. We can discuss the merits of Snowden and his revelations until doomsday. But we’ve all had a good peek behind the curtain now, and what lies there is neither legal nor moral, no matter how it’s gussied up. If it is either, then the big, red “Game Over” text should be displayed forthwith.

  5. I think that what was leaked is wrong and probably unconstitutional. And Snowden should go to jail. I’ve heard people talking about how he’s trying to cop to civil disobedience. OK, then man up and take the consequences and shock our consciences.

    When the dust dies down, perhaps the next President will come in and wipe this nonsense clean from the NSA and commute his sentence.

    Running away to the Chicoms doesn’t give me a warm and fuzzy that he’s looking out for me, especially when he says he has more information about/from the NSA.

  6. Just because he revealed a real crime, that revelation doesn’t necessarily exonerate Snowden.

    He’s still in breech of contract.

  7. Civil disobedience — like Kaitlyn Hunt’s heroic protest against the unfairness of statutory rape laws, eh?

  8. Agreed that low-level employees should not be setting policy via leaks. Agreed that disclosures like this put good people at risk, like your son. And the ends do not always justify the means. The fact that he ran away to China, bastion of freedom, undercuts the whole hero angle.

    Nevertheless, Metadata MATTERS, and the intrusion on our lives, with no suspicion whatsoever, cannot be swept aside. Combine this disclosure with the other current examples of government malfeasance, the Obama campaign’s incessant bragging about the most incredible database in history (and just how did they get that info and from where? NSA?), and I want answers :

    “What they are trying to say is that disclosure of metadata—the details about phone calls, without the actual voice—isn’t a big deal, not something for Americans to get upset about if the government knows. Let’s take a closer look at what they are saying:

    They know you rang a phone sex service at 2:24 am and spoke for 18 minutes. But they don’t know what you talked about.

    They know you called the suicide prevention hotline from the Golden Gate Bridge. But the topic of the call remains a secret.

    They know you spoke with an HIV testing service, then your doctor, then your health insurance company in the same hour. But they don’t know what was discussed.
    ….
    They know you called a gynecologist, spoke for a half hour, and then called the local Planned Parenthood’s number later that day. But nobody knows what you spoke about.”

    http://gizmodo.com/why-the-metadata-the-nsa-has-on-you-matters-512103968

  10. Stacy, are you saying “just following orders” is now a viable defense?

    If so, there were a lot of people wrongly convicted at Nuremburg.

  11. What he said!

    Maxine Waters: “The President has put in place an organization with the kind of database that no one has ever seen before in life,”….”That’s going to be very, very powerful,” Waters said. “That database will have information about everything on every individual on ways that it’s never been done before and whoever runs for President on the Democratic ticket has to deal with that. They’re going to go down with that database and the concerns of those people because they can’t get around it. And he’s [President Obama] been very smart. It’s very powerful what he’s leaving in place.” http://www.liveleak.com/view?i=49a_1360284775&comments=1

  12. Snowden checked out of his hotel room in Hong Kong. I have no doubt our government is tracking him.

    I want this to be psyops operation so bad LOL! Right now I want this guy to be feeding the Chinese a pre agreed on narrative that sends them down a deep rabbit hole.

    I know that’s highly unlikely our government is reactionary not precautionary.

  13. I wonder how many people are calling Snowden a “hero”, who are also calling Manning a “traitor”?

    Manning (obviously) misread the video he helped leak. Apache helicopters were attacking militants carrying AK-47’s and RPG’s. They weren’t “innocent civilians”. They were participants of a declared military action.

    Do Manning’s ‘good intentions’ absolve him?

  14. You know a great job for naive idealists? Peace Corps.

    But it’s vitally important to keep those immature dreamy-eyed fools away from grown-up work.

  15. Yup. Both men assumed a certain amount of risk when they signed up.

    And now the bill is due!

  16. I’m willing to offer a compromise on this: A cell at Guantanamo for Snowden, with one for Obama and another one for Holder on either side of Snowden’s.

    And when President Palin comes into office, she can then pardon Snowden as a show of mercy. Obama and Holder . . . not so much.

  17. Only one small problem with this line of reasoning…

    Whether or not a single person was “harmed” (eh… how in the world would we know??), doesn’t have any bearing whatsoever on whether or not what the NSA is doing is illegal.

    I mean, if that’s the only bar you want to use, then the fedgov can get away with anything it likes as long as it can keep hidden any evidence that THEY (as opposed to one of their proxies) were responsible for harming someone using the intelligence they scraped up.

    I think Snowden – if he is even the person who actually exposed this mess – is certainly on the hook for a felony charge. But given the utterly shameless manner in which this administration has chosen to openly lie and openly flout the Constitution, that exercise can wait, IMHO.

  18. Waters is talking about the Democrat donor database. The one that worked where Romney’s failed.

  22. An Army private doesn’t get to decide which orders he will obey, and he has a sworn duty to maintain operational security necessary to the completion of his appointed mission.

    No matter what? Under what circumstances does a disobedient underling become a whistle-blower?

    My attitude is, “No harm, no foul,” and I haven’t seen one scintilla of evidence that any innocent person has been harmed by this program.

    Show the scintilla of evidence that they’ve stopped TERRORISTS. The NYC subway bombing has nothing to do with PRISM or metadata: it was the British that did the legwork on that.

    If we had a bunch of warrantless, no-knock, raids on people’s homes, and nobody got hurt, would that make it OK? That’s not the bar that 4th Amendment issues have to clear — harm or no harm. They have to show “probable cause.”

    The problem with the NSA scooping up and warehousing the entire Internet (NOT just telephony metadata) is that you don’t have to be very corrupt to find it tempting to mine that data for non-terrorist-finding purposes: coordinating voter drives, punishing gubmint critics, parsing e-mails and texts so that the weakest link on SCOTUS is forced to reverse himself, or a General not speak out against Benghazi.

    People who denounce Snowden seem to think that the data-mining is indeed limited to some of the metadata about foreign phone calls.

    It is not. NSA wants it all, and technologically there’s nothing to stop them.

    Apparently, there’s nothing stopping them ethically or legally, either.

  23. Manning released 700K documents. He couldn’t possibly have known everything that was in them. That was utterly reckless, and his motivations seem to have had at least as much to do with his deviance as with any idealism. Thus far, Snowden has only exposed the existence of surveillance programs.

  24. The context of the conversation makes it crystal clear. Nobody would trust Waters with NSA program information.

    This IS, after all, the woman who thinks Bush blew up the levees in NOLA.

  25. Junior personnel don’t get immunity to decide what security measures they will and will not follow, even with the best of intentions. Fair enough. And the senior personnel don’t get unlimited immunity to use the national-security apparatus for their own purposes, even with the best of intentions. Right now, I support locking them *all* up.

  26. If you listen to him brag about what he had access to (His Clearance) and his claim that it was high enough clearance to bring down our surveillance system world wide in an afternoon. It amounts to painting a big bulls eye on his back. If you are playing against team U.S.A. would you grab him and torture him to find out just how he thinks he could accomplish that feat? That smells like bait to me.

  27. This is a valid concept. In theory.

    The inconvenient, uncomfortable reality, however, is that the number of “grown-ups” out there who have the very low-level operating system knowledge required to secure contemporary networks is not exactly large.

    And there are plenty of “grown-ups” out there with a decidedly adolescent morality. So there’s also that.

  28. Which, of course, is one of the stories within this story – what in blazes is going on in our security agencies that they are giving guys like this $200,000 a year jobs and access to this type of info? How many more Bradley Mannings are there in the weeds? And when you look at the secret service and now the state department DS, exactly what parameters, other than diversity and member of the democrat party, are being used for hiring?

  32. I’ve got to disagree.

    The oath to “support and defend the Constitution against all enemies, foreign and domestic” supersedes any non-disclosure agreement, law, or regulation.

    The NSA actions are an obvious violation of the 4th amendment.

    And the point of the matter is that I don’t give a flying ^$%^ about political advantage, what I care about is that the NSA is destroyed, their buildings razed, and the ground sown with salt. If we can get the SC to go along, a pyramid of skulls is also desired.

    It is not the government’s proper role to monitor the citizens who suffer it to exist.
    It is every citizen’s job to keep the government in its place. Whether they’re a low-level employee, or not.

  34. Well said.

    “Walls” indeed. The US is the safest place in the world. If we simply minded our own business, it would be one hundred per cent safe. We don’t need platitudes. We don’t need security “blankets.” We need, we want, we demand, freedom and privacy.

    As for Obama, ya know what, I can hear him saying the same crap as you quote. Because, as with the fictional, fake marine, it is all about rhetoric with Obama. Words. High sounding words to cover up sordid deeds. Talk of honor and loyalty and code, but then listen beyond closed doors, eavesdrop and go through people’s garbage.

    We want to be left alone We don’t need or want the walls the national security State and the MIC purport to man. We do not want to trade any of our precious liberty for all of the security they claim to provide.

    “Handle” that truth, if you can, President Obama, Senator John McCain, and John Stacy McCain.

  35. So, violating the 4th amendment is “grown-up” work?

    Here’s my suggestion. Give up any rights you want. Hand them back and declare yourself a subject but do NOT give up my protections in some silly fantasy that it will keep YOU safe.

  36. Well put.

    Another fact to consider: you cannot get through a single, waking day in America these days without violating at least a dozen laws, so it would be very easy to build a probable cause case against anyone.

    While The Constitution is, indeed, not ‘a suicide pact’, it is not open-ended in national security matters. This program goes too far, Stacy, in it’s
    unrestrained and wanton gathering of information on American citizens.

    This program must be stopped and political correctness must end. We should be targeting Muslims who raise the slightest suspicions because it is Islam which is at war with us and The West. No non-Muslims should be targeted unless there is a reasonable suspicion that they are aiding and abetting any of our enemies [the Mohammedins, Red Chinese, Russians, etc.]. That is the price one pays to live in a constitutional republic.

  37. There are so many disconcerting things in this post I hardly know where to start.

    “I haven’t seen one scintilla of evidence that any innocent person has been harmed by this program.”

    Is that how it works? We give our government unlimited power, and then when they start harming people, we try – likely in vain, at that point – to wrestle it away from them?

    In any case, how would you even know if someone had been harmed? Before the IRS admitted to harassing Tea Party members, how much was known about the practice? Sure, there were people who occasionally griped about harassment, but they were largely dismissed as cranks. How many Tea Party members were intimidated into silence before the practice was known? Likewise, we don’t know how many people have been silenced because someone at the NSA made it known that they had detailed records from their emails, their phone calls, maybe even phone conversations themselves; how many have had their lives ruined because some mid-level NSA staffer had some personal axe to grind, combined with the awesome power to look into every aspect of their life; how many politicians were blackmailed into giving up their votes on key issues; how many businesses were pressured out of a certain market; how many businesses were helped by getting inside information on the competition?

    “…junior personnel cannot be permitted to exercise a heckler’s veto over U.S. national security policy”

    But they do NOW. Junior personnel have the ability and the moral obligation to refuse an unlawful or immoral order. That is, by definition, a check on national security policy. When force can be used to compel abdication of conscience, especially in clandestine operations, then there is no check on state power at all. The press have an obligation to expose such immoral/illegal orders, as well as the system and processes that make them possible. It’s one thing to be obligated to keep secrets about lawful operations, it’s quite another for the government to assert some obligation to keep silent about its illegal acts. We have all had our 4th Amendment rights violated on a massive scale, and anyone who did not speak up about it, anyone who participated without saying a word, is an enemy – not of the state – of the people. And they should go to prison for a very long time. Snowden is pretty much the only person, at this point, who has done the right thing.

    Furthermore, the monitoring of call data and siphoning of internet data don’t even make sense if, ostensibly, their purpose is to catch terrorists. Even beginning with 9/11 (2001) attacks, most orders were given in person,
    and the few phone calls that happened were made on one-time-use disposable phones. These scanning techniques only make sense if you realize that they are being used for the purposes of monitoring and mapping the political opposition: us.

  39. Sir, Your son did not swear an oath to obey the orders of the President, or anyone else. He swore an oath to defend the Constitution of the United States, against all enemies, foreign and domestic. He cannot obey an illegal order without surrendering his honor. I refused to obey orders twice in my career because they were illegal. If he has questions, he should request that the order be put in writing. Morally unfit superiors won’t do that. Every service member has the right to request orders in writing if they believe them to be illegal, or unethical.
    Please let him know that because his integrity is at stake.
    Sincerely and respectfully,
    Robin E. Roberts
    Major, US Army (Retired)

  40. I stood on the wall for 25 years and I have always been disgusted by this speech. Sanctimonious crap! Don’t forget, Jessup was dishonorable and disloyal to his men for his own advantage. He didn’t want to look bad. Men of honor don’t send others to do their dirty work.

  41. The Obama troops have a history of misusing data. He had divorce documents unsealed in order to hang trash on previous political opponents and that was enough to win the elections. His loss was to a candidate that hadn’t gone through a divorce. And like fisa courts he got a judge to unseal those records. Fisa has a 99.94% record of allowing government snoops to go forward. I have no confidence in their ability to say no….they are hookers to the core. indyjonesouthere

  43. “An Army private doesn’t get to decide which orders he will obey, and he
    has a sworn duty to maintain operational security necessary to the
    completion of his appointed mission.”

    Good thing Lt. Calley’s boys remembered that.

  46. Yes, Yes, Yes. Thank you. I don’t yet have an opinion on Snowden either way, except to think the whole story is fishy. But I agree 100% about the fact that the metadata DOES matter. Speaking as an IT professional, I don’t think we can ignore this. And the examples you cited are why. Plus, who knows what future administrations might find worthy of investigation. All they’d need to do is make a phone call to look for anything that offends them. This database is wrong, wrong, wrong.

  47. Pablo, You missed one very important point: “according to regulations and the Uniform Code of Military Justice.” The UCMJ is military law as enacted by Congress. I have never seen anything in there that allows illegal acts, or unethical behavior. In fact, you are supposed to put the Constitution first according to regulations and the UCMJ. This is something that every service member has to consider if they receive questionable orders. You also have to be willing to accept the consequences if you are wrong.

  49. If we had “simply minded our own business” and followed Ron Paul/Libertarian foreign policy after WWII, you would be living in Soviet America today, Komrade.

  50. Obviously there are problems if a junior new hire from a contractor has access to the information Snowden did. And any program of this nature needs constant oversight and revision of policies.

    But this is being used to kick the IRS/EPA/DOJ scandals, which involve clear criminal acts and abuse of power for political purposes, off the front pages and the front burner.

    Vigilance and scrutiny are good things, getting completely distracted by the brightly colored shiny squirrel in the corner is not.

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