Monday, January 6, 2014

"We the People" versus the National Security Agency

NSA Critique: "Liberty and Security in a Changing World"

On December 12, 2013 President Obama's five-member task force issued it's opinion on National Security Agency surveillance practices. The advisory panel's [Richard A. Clarke, Michael J. Morell, Geoffrey R. Stone, Cass R. Sunstein, Peter Swire] findings and recommendations are reminiscent of those of the Church Committee in 1976. In summary: examiners then and now have determined that the intelligence community has been operating outside acceptable parameters.

Edward Snowden's expropriated, now-publicized, NSA documents provoked the inquiry. There are more NSA facts forthcoming because most of Mr. Snowden's cache has not been released. As highlighted in the NSA critique and by The York Times report, "No Morsel Too Minuscule for All-Consuming N.S.A," constitutional rights have likely been violated.

December judicial decisions on NSA spying techniques are contradictory: District Judge William H. Pauley III ruled that the NSA's bulk telephony metadata collection program under the Foreign Intelligence Surveillance Act is lawful whereas District Court Judge Richard J. Leon described the government's endeavors as Orwellian pursuits. Judge Leon said that "While Congress has great latitude to create statutory schemes like FISA, it may not hang a cloak of secrecy over the Constitution."

In spite of prior official disclaimers, Judge Pauley noted that the Edward Snowden leaks prodded the government to admit that the NSA has been capturing and banking metadata on all foreign and domestic calls since May 2006.

To enter the data labyrinth, specified inquirers "must determine that there is a reasonable articulable suspicion that the suspect is associated with an international terrorist organization that is the subject of an FBI investigation."  Intelligence agencies'  awareness programs were in place prior to 9/11 but were strengthened after the fact.

Since the liberty versus security question is judicially unsettled, voters and members of Congress may gain further insight from the NSA critique. First and foremost President Obama's five advisers stated that the NSA should cease and desist its metadata collection practices because this data might entice public officials to:
engage in surveillance in order to punish their political enemies; to restrict freedom of speech or religion; to suppress legitimate criticism and dissent; to help their preferred companies or industries; to provide domestic companies with an unfair competitive advantage; or to benefit or burden members of groups defined in terms of religion, ethnicity, race, and gender. p.16
For these reasons:
we endorse a broad principle for the future: as a general rule and without senior policy review, the government should not be permitted to collect and store mass, undigested, non-public personal information about US persons for the purpose of enabling future queries and data-mining for foreign intelligence purposes. (p.17)
Further safeguarding liberty recommendations:

Personal identification data thus collected by the NSA should be removed from government control and be stored with third party contractors (p.23).

Because of conflict of interest concerns, future NSA directors should be non military, confirmed by the Senate, professionals (p.21).

FBI National Security Letters, compelling recipients to turn over private information, should be limited to clear and present danger situations (p.18). The FBI generated 192,499 national security letters from 2003 to 2006. NSL's are not subject to judicial review (p.54 Judge Leon ruling

To ensure impartiality, Foreign Intelligence Surveillance Court judges currently selected by the Chief Justice should be chosen by the nine members of the Supreme Court (p.22).

Commercial ventures should not provide security clearance approvals (p.23). Prior to privatization federal employees handled these assignments. The private equity-owned Booz Allen Hamilton firm, Edward Snowden's employer, relied on USIS another private equity-controlled entity to provide Mr. Snowden with his top-secret ranking. USIS has 100 federal contracts and provides security checks for more than 95 agencies.

Intelligence failures were contributing factors in the September 11, 2001 attacks (p.71).  The fact that President Bush proposed the Patriot Act one week after the airplane strikes raises the question of whether this measure was waiting in the wings.

Upon evaluation:
... we cannot discount the risk, in light of the lessons of our own history, that at some point in the future, high-level government officials will decide that this massive database of extraordinarily sensitive private information is there for the plucking. Americans must never make the mistake of wholly “trusting” our public officials. As the Church Committee observed more than 35 years ago, when the capacity of government to collect massive amounts of data about individual Americans was still in its infancy, the “massive centralization of . . . information creates a temptation to use it for improper purposes, threatens to ‘chill’ the exercise of First Amendment rights, and is inimical to the privacy of citizens.” (p.114)
The "State of Deception" report by Ryan Lizza further clarifies government activities.

Sobering news from Mr. Snowden: "NSA seeks to build quantum computer that could crack most types of encryption."

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