Platt Perspective on Business and Technology

Learnable lessons from Manning, Snowden and inevitable others 8 – rethinking classified intelligence and national security as it is built from it 1

Posted in business and convergent technologies, in the News by Timothy Platt on September 19, 2013

This is my ninth posting on what is becoming a series of leaks and unauthorized disclosures of classified US government documents that relate to its War on Terror (see John Peter Zenger, Henry L. Stimson, Edward J. Snowden and the challenge of free speech and the first seven postings to this series, available at Ubiquitous Computing and Communications – everywhere all the time 2 as postings 225 and loosely following.)

I focused in Part 7 of this series on the challenges faced when attempting to make meaningful and effective use of the information that intelligence services and agencies gather, as they pursue their national security goals. And I more specifically focused on the need to be selective and lean in determining what is to be covered under a national security-based classified information system. And I couched this in terms of gathering information more widely for use in making threat assessment and other analyses, but classifying sparingly and only keeping specific information under that classification umbrella for as long as that makes sense for it.

I turn here to consider a key element of wording that went into that discussion, and that for being handled badly has created tremendous problems and both for the current US administration and for the American public: “collecting information widely.”

• Current open-ended information gathering policies in place,
• And the practices that they allow such as the PRISM and XKeyscore programs so recently outed by Edward Snowden
• Have created a fundamental collision behind the US Fourth Amendment and its counterparts for other nations build around democratic principles, and the US FISA Court (as amended in 2008) and similar legally enabling surveillance frameworks put in place by allied governments,
• And between the American public and how the Fourth Amendment is generally interpreted by it, and the way that the Obama administration (and the Bush administration immediately before it) has interpreted this, citing FISA authorization as proof of legality.

My goal for this posting is to address the issues of what information the government should and should not be gathering through covert surveillance programs, and why. And I would discuss this in terms of the Fourth Amendment to the US Constitution and how it is variously understood here, and the FISA Court as it is used to justify governmental policy and action. I begin with the wording of the Fourth Amendment:

• “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (See the United States Constitution.)

Several details of this brief but important text literally jump forward as being significant here, and for both understanding why people would object to current governmental information gathering policy, and for suggesting how that might be changed.

• First, this addresses the rights of people “to be secure in their persons” and as a flexible catch-all and along with being secure in their physical houses and papers, secure in their “effects.” Cyberspace did not exist yet when the US constitution was drafted, but this word: “effects” has expanded out in meaning over the years to include new and emerging ways that we as individual people and we as business owners or organization members might hold our personal possessions and information. Court precedent has come to include our emails and other personal information that we store or selectively share online within the purview of this “effects.”
• This right of being secure in our “effects” as well as in our houses and papers can legitimately and legally be limited. But the allowable boundaries of when this right would not hold are also spelled out. Specifically, this right cannot legally be infringed upon without (explicit) “probable cause.” And this has always been interpreted to mean “probable cause” of criminal activity or “probable cause” of direct and particular threat to national security, as coming out of the actions of a specific individual who might be made the subject of a search and seizure or surveillance effort. This last detail will come up again later in this posting so I make specific note of it here. “Fishing expeditions” that would involve searching or performing surveillance on individuals without explicit probable cause regarding them as individuals, “to see what can be found” are explicitly disallowed.
• So overall, this amendment to the US Constitution has been held to mean that according to the most fundamental underlying law in this country,
• People and their private dealings are and will remain protected from warrantless intrusion into their personal affairs and that any specific, legal governmental intrusion against them would only be permissible under the law in the event that a case be convincingly made that this would be necessary regarding them, for the common good.

And this brings me to and the FISA Court and the other half of a fundamentally important collision that is currently taking place between the public and I add much of the legal understanding of individual rights as they would take form in a democracy, and government policy as it would seek to promote its understanding of a larger common good.

• The FISA Court, it can be readily argued, is not actually a court at all. It is certainly not a court of law in any traditional sense and certainly as would be found in a democracy, as it is a ruling body that operates in complete secrecy and without any of the oversight mechanisms that govern a judicial court.
• Members of the US FISA court are unilaterally selected by one jurist: the Chief Justice of the United States. Approximately 80% of all FISA appointees to date have backgrounds not in the judicial system but working for the Executive Branch of government and the vast majority of all FISA appointees have been politically very conservative and inclined towards supporting and sustaining requests made by their recent Executive Branch peers.
• All FISA hearings are closed and their records sealed and included under national security classification law. So revealing anything of any substance related to a hearing or decision made would qualify the leaker to prosecution under the Espionage Act. Court decisions are also held in secret in the same way.
• And only one side of a case is ever argued in a FISA proceeding: the voice of argument coming from the Executive Branch that requests approval to carry out a specific action, whether that means carrying out a surveillance operation or it means taking direct action against a foreign national or even a US citizen, as a putative threat to national security. No one is there, ever, to argue against a proposed action that is brought to this court for a ruling.
• Not surprisingly, close to 100% of all requests are granted with only some 1% turned down. And unlike a ruling from any judicial court, all the way up to the most senior appeals courts, there is no appeal by anyone or on behalf of anyone that an approved action would be taken against, by the US Supreme Court.
• In effect, rather than being a court, the FISA Court is an active and I add very activist body that was set up by members of the Federal Legislature as a mechanism for avoiding and even preventing oversight or action by US courts of law or by the Judicial Branch of government that they collectively comprise.

And this leads me to the fundamental conflict that a now very public knowledge of the FISA approved PRISM and XKeyscore surveillance programs has created.

I could address this as a moral or ethical quagmire, where President Obama and his administration have managed to tar themselves with what at best could be viewed as the bad publicity of conducting surveillance as if they ran a police state. But that would simply divert this discussion to one of partisan politicking and that would not serve any particularly positive purpose here. So I will simply note that this controversy has muddied the waters and created discord that has drawn in people from across the political spectrum and that can only serve to create problems in passing any legislation, related or not or in conducting meaningful government business, related or not. And this has, of course created problems for the US and its international policy and its implementation too, and for our allies and for their internal and international dealings too.

Instead of focusing on that and on those issues, I would focus very pragmatically on issues of national security and on how these programs have actually significantly weakened it for the United States.

I am going to look in more detail into this set of issues in a next series installment and will then address a possible structural change in how information is gathered for national security, so as to limit these challenges.

In anticipation of that I will simply note here that the current approach of collecting every piece of information about as many people as possible in the United States – with as close to universal online surveillance as possible on US citizens, may be done with a hope of this somehow reducing foreign terrorist threats. But as anyone who has ever lived in Oklahoma City or who knows of its history could tell you, we have to worry about domestic terrorists too. And word of these surveillance programs has to have helped the groups that would train and direct domestic terrorists such as Timothy McVeigh to recruit new members and it has to have given them the comfort of what they would claim to be vindication that the government does spy on them. PRISM and XKeyscore have in fact increased our vulnerability to terrorists from within this country and regardless of their value in addressing foreign sourced terrorists. But I will delve into that on my next installment in a few days.

Meanwhile, you can find this and related postings at Ubiquitous Computing and Communications – everywhere all the time 2 and in my first Ubiquitous Computing and Communications directory page. I am also listing this under my In the News posting category. And once again, I am writing this well in advance of its going live to the blog, on August 11, so it is possible that events will develop that would impact on what I write here before it goes live. But I fully expect the basic issues that I write of here will continue to hold relevance for a lot longer than any lag period between when I write and upload this and when a reader could see it go live online.

As a point of clarification, technically there is a three member appeals panel that is tasked with overseeing the eleven member FISA Court, but when all court discussions are one sided and all results secret, and no one actually impacted upon by a FISA Court decision is supposed to even know that they were the subject of a ruling, and when essentially nothing is ever overruled by this body – I stand by what I have stated that the FISA Court does not actually have to answer to anything like a higher authority at least in any court system. And yes, the three members of this appeals board are selected by the same single voice of authority as the members of the court it at least in principle oversees: the Chief Justice of the Supreme Court, with members at least primarily drawn from a similar ideological background.


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