Can we sue over harm to the concept of warrants?

The decision in Clapper v. Amnesty International did not address the constitutionality of the warrantless wiretapping program . . .

That’s how you know we’re in for a treat, right, kids? A Supreme Court (SCOTUS) case over warrantless wiretapping that doesn’t actually say much about warrantless wiretapping. But before you can lose it, the parties challenging the wiretap program in this case did have serious flaws in their argument, so the ruling to block their lawsuit against the government isn’t entirely surprising. And if it sparks a real challenge to the wiretap, or at least its lack of transparency, it’ll all come out even.

The challenging parties include Amnesty International USA, lawyers with the American Civil Liberties Union (ACLU) and a number of journalists. They’re concerned that their international communications are being intercepted through the wiretap, under whose guidelines one party to a communication must be believed to be (my emphasis) outside the U.S. They argued that this concern was harming them by all but forcing them to make trips overseas to have conversations they would otherwise have over the phone or by e-mail.

Notice that they haven’t actually proven that their communications were being intercepted. SCOTUS ruled 5-4 that this was necessary to let the suit proceed, along with a demonstration that the costs of those overseas trips counted as “harm,” also absent. Amnesty et al. argued that there was no way to prove the existence of any intercepts; the SCOTUS minority agreed that this was reason not to block the suit. However, Justice Samuel Alito wrote that if a terror suspect was charged on the basis of information picked up through wiretapping, the suspect’s lawyer would have a better case against it.

All this in mind, there are a couple of grounds on which someone might sue to strike down the wiretap altogether:

• It constitutes a program of unreasonable searches, unconstitutional under the Fourth Amendment.
• It denies liberty (from said searches) without warrants, unconstitutional under the 14th Amendment.
• The Bush administration’s establishment of this program before bringing it before Congress violates the Necessary and Proper Clause of Article I, section 8, clause 18, which stipulates that Congress shall have the power to make laws needed to execute the foregoing powers of the section, of which “provid[ing] for the common Defence” and “to make Rules for the Government” are two.

Of course, we could skip the lawsuits and have President Obama make good on his early campaign promise to boost government transparency and go in a different direction on counter-terrorism than his predecessor.

See SPOT run (out of excuses)

My first reaction to this article was “They elected a Democrat to Congress in Mississippi?” My second reaction was “I wonder what that letter says?” Here it is, composed on my birthday last year, no less. It’s in the news this week because Rep. Bennie Thompson (D-MS) has yet to hear back from Transportation Security Administration (TSA) head John Pistole about anything his letter requested. My libertarian friends are already salivating over this newest excuse to slag the TSA.

Thompson suspects that the behavior detection program used by the TSA results in ethnic profiling. This arises from a 2011 news report out of Honolulu, accusing TSA officials of targeting Mexican passengers in an effort to look productive. He would like to see proof that the TSA’s head office has taken steps to alleviate this behavior within their ranks, and he would like the Screening of Passengers by Observation Technique (SPOT) program to be suspended until he gets it. Pistole has not provided this proof, though his previous letters insist it exists.

The news report cited two whistleblowers at the Honolulu International Airport who accused two other detection officials of intentionally targeting Mexican passengers, resulting in a substantial number of arrests of illegal aliens. The detection program is intended to spot potential terrorists, not illegal immigrants. From the outset, it appears that this controversy amounts to two TSA officials in the same airport who happen to be either zealous in their hatred for illegal immigrants, or incredibly stupid.

But it raises questions about management on the ground, and even management in Washington, ultimately accountable for the mistakes of management on the ground. After the first few arrests of illegal immigrants using SPOT tactics, shouldn’t these dumbasses have been told to look for people lighting their shoes on fire? And why is productivity their end game? Are they supposed to fill some sort of quota?

In theory, behavior detection at airports has its merits; as one blogger who is particularly scornful of the TSA has noted, Israeli airports have used it with great success – and no body scanners. Unsurprisingly, their system does involve a measure of ethnic profiling, which makes sense when you look at the ethnicities of all their foreign entanglements over the years. Nonetheless they use it for one purpose: keeping the planes and their passengers safe. Checking for illegal immigrants does nothing to this end.

The SPOT program is innocent until proven guilty. But we might consider behavioral profiling of TSA officials. If these two in Honolulu are any precedent, they’re not all that concerned with safety either.

A security leak? Thanks, but no thanks

If there was ever an example of politicians being too influenced by the media or vice-versa, this is it: A bill that would create new penalties for national security leakers may be softened because of complaints of how it would affect the press. As a member of said press, let me assure you all that not all of us are so eager to break new stories that we would do so on the advice of a source who can’t be trusted. It makes us look stupid, and it makes their entire organization’s credibility look invisible.

The bill, currently before the Senate Intelligence Committee before going to the chamber floor, would do the following:

• strip guilty intelligence officials of their press-leaking clearances;
• block them from contacting the media, even after they are no longer employed within the government;
• require congressional notification of all authorized leaks of classified material;
• and revoke pensions for intelligence community members who have committed a crime-level leak and have been convicted for such.

Doesn’t seem so bad, if you’re the type of person who believes, as I do, that classification can be essential to the success of a national security operation. Let’s hear from the other side:

In July, more than a dozen civil-liberties groups sent an open letter to the Senate Intelligence Committee claiming the anti-leak measures could instigate “suspicion, speculation or . . . retaliation” against members of the intelligence community. “This policy does not protect our nation’s legitimate secrets, but instead opens the door to abuse and chills critical disclosures of wrongdoing,” according to the letter.

I’m going to go out on a limb and speculate that the author of this letter is a WikiLeaks fan. What, exactly, qualifies as a “legitimate secret” in their opinion? Either way, someone who is so desperate to get the truth to the public should be willing to face punishment for their actions. They would be as subject to these punishments as someone who revealed something legally and ethically proper, but still classified (a “legitimate secret”).

As for “hampering media access,” the central complaint of opponents to this bill, let me speak for the media again: We can live with these. Security leaks are definitely juicy, especially when you’re the only media outlet to know about them. But whenever we have a national security story to cover, there are plenty of people who can speculate about them without giving anything away, until we’re all allowed to know everything. Not as interesting, but that’s not the biggest deal.

For $80 billion, this better be intelligent

At no time since before 9/11 has any children’s cartoon slogan rung truer than “Knowing is half the battle.” This is why the U.S. government has spent almost unrestrainedly on intelligence operations; a bill passed by the House on Friday appears to reflect an acknowledgement of that lack of restraint. I have selected five elements of the original bill that I will grade according to the thankfully deceased color-coded terror warning system. In protest of that system’s ignorance of the nature of light wavelengths, blue means best and red means worst.

Senate confirmation for the National Security Agency (NSA) director: Blue. It is unclear why the Obama administration objected to this; perhaps they feared that publicizing the hearings would reveal too much to unmentionables? Even so, the Defense Secretary, directors of the FBI and CIA and Director of National Intelligence (DNI) are subject to confirmation; the NSA director should get equal treatment.

Cutting staff duplications and competing missions: Green. The last thing intelligence operations need is inefficiency. This would satisfy demands that defense cuts remain on the table during deficit-cutting talks, while still ensuring that national security capabilities are protected. But I’m not sure what they mean by “competing missions.” How exactly will they measure competition? And if it exists, what does that say about existing operations?

DNI providing secure Gitmo detainee info to the Senate Intelligence Committee: Yellow. The administration fears that releasing this information could render foreign partners, who often urge secrecy, unwilling “to communicate frankly.” I would urge them to ensure that such info never gets out to the public, but with WikiLeaks about, you can never be sure. It may be necessary instead to ensure that said foreign partners are involved in the transmission process – if they can be trusted. That can be tricky.

Burial benefits for CIA employees killed in the line of duty: Blue. Um, duh. I’m assuming they already get every other type of health benefit, so why not burial? Easy one.

CIA employees providing gifts to family members of the above employees: Orange. CIA resources may be used for this purpose, which could at least compromise its accounting, if not its penchant for secrecy. If employees want to give gifts on a personal basis, there likely isn’t much the agency can do, but giving them on behalf of the CIA, save normal death benefits, is unnecessary.

The flavor of the leak

Evidently, former Gov. Sarah Palin (R-AK) has never met a political issue she didn’t want to make all about herself. This time, it’s the most recent WikiLeaks info dump. She pointed out that when Gawker leaked parts of her latest book, she took to the courts to stop them from leaking it further and won; this was a jumping-off point for her question of why the Obama administration didn’t do the same to prevent the leaks.

OK, fine. Fair point. That was about all the White House could have done on their own, and they didn’t bother. Yet, according to her (through Politico; this is not her quote), “the U.S. government’s inability to stop the latest WikiLeaks release is all President Barack Obama’s fault.” No, it’s not. As this other piece clearly demonstrates, the real problems lie at the Pentagon, which, having been properly chastened and rebuked, is in the process of revising its security procedures.

Perfect timing, guys! It would have been nice if you’d tried that after the last leak! If the Pentagon requires an increase in its budget for the next fiscal year, I expect a sufficiently large percentage of that increase to be devoted to updating their technology. I’ve known 16-year-old amateur hackers who could outwit whoever handles the IT there. And they only used those skills to create new classes in Warcraft. Still, though, I bet they could make better “revelations” than these:

• The Mideast is worried about Iran!
• The collapse of North Korea might lead to one Korea! And the U.S. loves that!
• The White House tried to get other countries to take Gitmo prisoners!
• The vice-president of Afghanistan takes money from other countries!
• The U.S. wants Pakistan to get rid of its enriched uranium!
• Secretary of State Hillary Clinton requested intelligence on foreign leaders!
• Qatar sucks at counterterrorism!
• Russian Prime Minister Vladimir Putin and Italian Prime Minister Silvio Berlusconi are tight, y’all!
• Syria gives weapons to Hezbollah!
• Foreign leaders have bad personalities!

Snoooooorrrrrre. I could have called all this.

Even if the leak didn’t reveal anything damaging, which the last one also didn’t, this is a huge embarrassment to the Pentagon and calls their entire operation into question. Therefore, the following must happen: 1. Find the person in charge of their networks. 2. Can their ass. 3. Replace them with someone who gets what’s at stake. 4. Convict Pfc. Bradley Manning, who gathered the documents, for taking classified material. 5. Convict Julian Assange of WikiLeaks for aiding and abetting the material’s release.

(Trouser) snakes on a plane

The last time I boarded an airplane in the United States (returning to Winnipeg from Washington, D.C., this summer), I went through the full-body scanner. It took a few seconds and it felt like nothing. I suffered no emotional distress at the idea of what the Transportation Security Administration (TSA) staffers were looking at. According to this article, neither do most American air travelers. So how did the minority who do create such a media fuss?

By anyone’s standards, 15 seconds in the scanner is not only more efficient, but far less humiliating than the second option, which is being subjected to a physical pat-down. Thanks to the attempted Christmas Eve underwear bomber last year (I call him “Ball Buster”), TSA agents have seen fit to be a little more, er, topical when carrying those out. Amazing how successful terrorists can be in getting security personnel to do something they would most likely morally oppose in the name of national safety. I wonder if they’ve noticed that.

Tomorrow, if a “loosely organized” number of people on the Internet have their way, will be National Opt-Out Day, in which some air travelers will refuse to go through the full-body scanners. The only recourse for the TSA will be to subject them to the pat-downs, which somehow are preferable to standing for 15 seconds in a plastic cylinder while someone is too busy looking for bombs to notice your boobs (we hope). This, of course, will slow down everyone behind you.

TSA chief John Pistole points out that even the few who refuse to go through the scanners can seriously clog airport traffic, which is especially problematic for those going home for Thanksgiving. True as that is, the “It’ll be your fault” undertone of his message carries a huge risk of making him sound insensitive to the concerns of travelers. It’s the kind of thing everyone but Pistole should be saying.

In order to prevent National Opt-Out Day from snowballing, there are a few things the TSA could consider:

1. A cure might be to restrict use of full-body scanners to those deemed to be a possible security risk after being gone over with a metal detector. Of course, this would require a fair deal of planning and would not be implemented by tomorrow.
2. A preventative measure might be to hold public consultations in major airports, which they should have done already.

And to the organizers and participants of National Opt-Out Day, let me say this: You make the least sense of anyone I’ve read about this week, and it’s only Tuesday.

E-mails between terrorists: I’d tap that

Nobody likes wiretapping, unless they’re the ones doing it for whatever reason. The mere mention of the word is enough to make 99 out of 100 people balk. The fact that the Obama administration wants to expand the government’s ability to do it will surely turn off those who voted him in as the opposite of former President George W. Bush.

The justification for the proposed expansion is the advent of the Internet and mobile devices, which make it easier for people who threaten national security to communicate without getting caught. Communications companies are the biggest players here; if the administration gets what it wants, they will be required to translate encrypted communications into plain text at the government’s request. “Backdoors” to the translations will need to be added to their operations. The bill outlining these regulations in full won’t be in Congress until next year, but it’s good to start talking.

You can imagine why a communications firm would be wary of doing this, especially if people find out. Hopefully the administration would be willing to eat the cost that would otherwise be incurred by the service provider. Unfortunately for them, doing so would cause advocates for taxpayers, typically conservative, and advocates for privacy, typically liberal, to agree on something for once.

The privacy argument is, of course, more compelling. Marc Rotenberg of the Electronic Privacy Information Center (EPIC) – which had to have been started as a response to Bush policies . . . nope, it was established in 1994 – finds it unbelievable that the government could call itself ill-equipped for any efforts requiring wiretapping. Sadly, they’re correct. While tech firms themselves are the first to adapt to new systems, PR people are the second and public schools are the last, governments are second-last.

Those who are less concerned about their privacy will say that nobody with nothing to hide should feel worried. But as we saw during the Bush administration, even library books are ripe for scrutiny. In order to alleviate this, the administration must create more stringent reasons for wiretapping, and provide warrants to both the user and the provider. Security needs are an insufficient response to those who simply don’t want the government on everyone’s backs.

We wouldn’t be having this argument if cyberterrorists were as old-school as those Russian spies with their hand signals and radio transmitters. At no time should they outpace democratic governments in the communications race. This bill is essentially an admission that this government is losing.

The grass induces violence on the other side

Tightening up security at the U.S.-Mexico border makes up the legislation intended to get the ball rolling on comprehensive immigration reform. Sen. Chuck Schumer (D-NY), who is sponsoring said legislation, says Republicans and a few Democrats won’t take another step without improved border enforcement. I suppose this is as good a start as any, but how much do you want to bet that these members of Congress will only be taking one step at a time like this throughout the entire process?

We will go over the $600 million bill itself and determine its most and least necessary elements. This is only preliminary.

1. 1,500 more federal agents. I covered this when the number was only 1,200, and those would have been National Guard troops who would later be joined by Customs and Border Protection agents. This article does not specify which group would make up the majority of these 1,500. As long as most of them are CBP agents, since they are more knowledgeable about these issues and this would look less militaristic, we’ll say it’s good.

2. Unmanned drones. Against drug cartels? Are they using cruise missiles against each other these days? Again, the article doesn’t specify exactly what the drones would be used for, but I have a hard time imagining that they’d be used to spot people crossing over the border in the middle of the night. Which would be a better, but less necessary, purpose. I say bad.

3. Investigating “illegal drug activity at the border.” Good. You know, if drugs were legalized in Mexico, the cartels would be subject to antitrust law and not criminal law. Just sayin’.

4. Paying for it with higher visa application fees. Good on its own, but I’m skeptical of the specific visas that would be affected. H-1B and L visas are given to “foreign workers with special skills,” thus making them more useful to the U.S. Companies in which more than half of the at least 50-member workforce is on these visas would have to pay the fees. Granted, they do “‘exploit’ U.S. law” as Schumer says, but it would probably be more beneficial to do this for companies who employ as many unskilled workers, who could only be higher in number.

I’ve mentioned before that it might be a good idea in the future for the U.S. to assist Mexico in fighting off the drug cartels. Maybe the illegal immigrants could make up part of a joint civilian task force? That would kill about three birds (add less border crossing and more employment for Mexicans to that list) with one stone! It’s perfect!

Bye-bye, Miss American spy

Can you believe this? I thought it was a joke when I heard it, or if not that, the efforts of a group of Cold War holdovers desperate to help Russia become the world’s superpower once again. But, no, ten people have been arrested for acting as agents of its foreign government. It’s easy to suggest that suspicion about Russia’s intentions arising from the nuclear arms reduction treaty may have been warranted after all. But has it?

I wish to clarify before we continue that one of the spies, Anna Chapman, is of no relation to me. All of us Chapmans live in Canada; our relatives in the U.S. all have different surnames. Just in case anyone was wondering. (shifty eyes)

The group of ten has been charged not with espionage but with failing to register as foreign agents, although I suspect their charges may be upgraded to espionage depending on the information they gleaned in their decade in the U.S. It doesn’t sound like much, though: “nuclear weapons, U.S. arms control positions, Iran, White House rumors, CIA leadership turnover, the last presidential election, Congress and the political parties.” What, they don’t get AP wires in Russia? I could have told them about most of these things without pay.

The other bit of hilarity in this case is how ghetto some of the spies’ operations were: “coded bursts of data sent by a radio transmitter,” “innocent-looking ’brush’ encounters to pass messages in public,” “encrypted data in public images,” and “fake identities and false travel documents.” I can just picture one calling another on a prepaid cell phone (purchased with cash, naturally) and urgently whispering, “The potato ferments at midnight!”

The one worrying element of the story is a man in Massachusetts discussing congressionally authorized research programs on bunker-buster warheads with an employee of a federal research facility. He deserves the most questioning, not to mention the employee, who ought to know not to discuss “strategic planning” with civilians. Everyone else deserves little more than an hour or two of questioning and to be punished accordingly. Imagine how disgruntled they were to be assigned to do what bloggers like me do every day.

The Russians did get one thing right by not working for the government, which would have gotten them found out sooner. That they got caught at all combined with their old-school equipment shows an embarrassing lack of sophistication on their employers’ part. Mix in the need to get info that, for the most part, is readily available online, and no Mossad, they.

Clapper on, Clapper off

Before James Clapper is confirmed to the post of Director of National Intelligence, as I suspect he will be, there’s going to have to be a major change in the way Washington’s intelligence agencies are run. That’s the cause of the majority of fresh opposition to Clapper (we will discuss the rest of it later). A number of people don’t think he can effectively participate in discussions with others on his level, with slightly differing responsibilities.

These others would be CIA Director Leon Panetta and White House counterterrorism adviser John Brennan. They made mincemeat out of Clapper’s predecessor, Adm. Dennis Blair, and with good reason; I can’t support putting all the blame on him for security lapses that led to attempted attacks, but certainly he could have thought of something after the first one. Blair’s career has consisted of far less intelligence experience than Clapper’s, and what does exist has arisen from work with policy organizations. (Not to knock people who work in policy organizations, but you need some hands-on experience before getting the big fish. I hear it really helps.)

Panetta and Brennan would not have to worry about Clapper being inexperienced or lacking knowledge. They would, however, have to worry about him refusing to back down from his stance on whatever intelligence issue. In order to alleviate some of this disagreement and repair the structural problems with the DNI position, they might consider turning the three of them into a small intelligence advisory board that presents all manner of ideas to the president.

Then there’s the question arisen by Sen. Dianne Feinstein (D-CA), who would rather have a civilian in the seat than a military official. Why, I ask? Is she worried that he might be too eager to shoot ‘em up? Well, they put someone with no intelligence experience in charge of the CIA, and that seems to be working out fine. Considering the military’s role in carrying out orders on the basis of intelligence findings, I’d consider this an asset for Clapper.

Finally, the article mentions that Clapper has a history of using “colorful language” to bolster his point, which may be a cause for concern at his hearing. If swearing is enough to get senators to vote against you, I am never accepting any White House nomination. I like being able to swear at work (assuming my job at the time involves expressing opinions a lot).

This are admittedly cursory observations, but Clapper seems well-suited for the job, and I will support his confirmation until his opponents can present us with a better option for DNI, if they can find it.