Just Above Sunset
May 28, 2006 - Start With a False Premise

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The false premise in question, these days, seems to be that anyone other than "the decider" gets a say in things. May 14, 2006, in Tautology and Royalty, there was an extensive survey of the speciousness of the idea that when it comes to decisions about what we do as a nation has much to do with laws the congress enacts, the courts that rule on the application of those laws, what we vote for and public opinion in general. The executive branch says what the president decides is what counts, telling us that we've all really misunderstood the constitution all these years. He alone has the final say.

Thus the now famous signing statements


Dec. 30, 2005: US interrogators cannot torture prisoners or otherwise subject them to cruel, inhuman, and degrading treatment.

Bush's signing statement: The president, as commander in chief, can waive the torture ban if he decides that harsh interrogation techniques will assist in preventing terrorist attacks.

Dec. 30: When requested, scientific information ''prepared by government researchers and scientists shall be transmitted [to Congress] uncensored and without delay."

Bush's signing statement: The president can tell researchers to withhold any information from Congress if he decides its disclosure could impair foreign relations, national security, or the workings of the executive branch.

Dec. 23, 2004: Forbids US troops in Colombia from participating in any combat against rebels, except in cases of self-defense. Caps the number of US troops allowed in Colombia at 800.

Bush's signing statement: Only the president, as commander in chief, can place restrictions on the use of US armed forces, so the executive branch will construe the law ''as advisory in nature."


And on it goes. The Attorney General on national television suggests locking up journalists who report what they're told (video here) - and, yes, they do report what seems to be quite illegal and troubling, but much of it is, after all, classified. You don't reveal what's classified.

The amount of classified information, much of it previously available, has probably tripled now, but then, you have to trust them that it all should now be classified, as they have our best interests in mind (our safety) and say no one should question their good intentions. What other motive for shutting down access to even the most innocuous information could they have? They're not evil, power-mad people, just making sure we're all safe. If you think differently you must be one of those tin-foil hate conspiracy nuts. Everyone knows they're just doing their best to keep us safe.

That telephone business? The president himself said in a speech in Buffalo last year that no one's phone would be tapped without a FISA warrant. Then they said the FISA law really didn't apply if you thought about things carefully, then told us they only checked in on al Qaeda calls to and from the United States without warrants. If you're not al Qaeda no one is checking. So relax. Then they said, well, they did track other purely domestic calls without warrants, but they were all "terrorism related" somehow, but they couldn't explain how they knew as that was classified. Then there was no denial that they've collected most all phone records of everyone for the last four years and they've got banks of computers scanning them all for suspicious patterns. Just about all phone calls are included. And there is no oversight of any of that, and certainly no warrants. But no one is listening in on any particular call, unless the algorithm makes the big computers beep and gurgle, so what's the problem? Well, it's one "not quite what we said" after another. You can see why the Attorney General might want to lock up journalists. They undermine the trust we should have that this is all just fine.

In that tautology and royalty item there was, in the middle of all the little details, this - the Justice Department's Office of Professional Responsibility said that it couldn't investigate the role Justice Department lawyers played in the NSA's warrantless spying program because the Bush administration refused to give investigators the necessary security clearances. The Justice Department's Office of Professional Responsibility just up and quit the effort. What would be the point?

Tuesday, May 23, 2006, it happened again, but this time it was the FCC


WASHINGTON, May 23 (Reuters) - The U.S. Federal Communications Commission will not pursue complaints about a spy agency's access to millions of telephone records because it cannot obtain classified material, the FCC's chairman said in a letter released on Tuesday.

Rep. Edward Markey, a Massachusetts Democrat, had asked communications regulators to investigate a newspaper report that AT&T Inc., Verizon Communications and BellSouth Corp. gave access to and turned over call records to help the National Security Agency fight terrorists.

"The classified nature of the NSA's activities makes us unable to investigate the alleged violations," FCC Chairman Kevin Martin said in the May 22 letter to Markey.


The FCC Chairman, Kevin Martin, used to be one of the Bush-Cheney campaign lawyers (think Florida recount, 2000), before he got this plum appointment. He says members of the FCC "take very seriously our charge to faithfully implement the nation's laws, including our authority to investigate potential violations of the Communications Act." But what can you do? The decider got his advice and classified it all at such a high level that even his own FCC just has to trust him. This is curious.

A logical reaction here - "So if the NSA won't allow the Justice Department to investigate, and the FCC won't even try, where does that leave us? Who polices the police?"

It seems to be a matter of trust, doesn't it? It's not just congress and the courts who must back off. The administration's own subordinate agencies have to back off.

The White House runs a tight ship. The circle of those who know and those who decide is very small indeed, just a few people. The idea seems to be that we chose this way of doing business in the last election (and maybe the one before it), so if you have a problem with any of it, in 2008 you get a chance to try something else, if more than half of the nation agrees with you and you can trick the new electronic voting machines into recording the vote you cast. Until then? Back off.
But people do persist in thinking they have some say in any of this, as is this from Kevin Drum in the Washington Monthly - a challenge to those who seem to have problems with the warrantless telephone scans. It's a bit of a thought experiment –


The NSA spying program raises plenty of sensitive issues, but at least one of them hasn't received the close scrutiny it deserves: it's fundamentally a system for identifying criminals by statistical analysis. Americans need to come to grips with whether they approve of this.

Take a different, but equally incendiary example. Suppose that we could semi-reliably create a statistical portrait of child molesters: their age, geographical location, gender, and calling and buying patterns. Suppose they tend to rent certain kinds of videos, make phone calls to certain kinds of chat lines, and call up other known child molesters.

Needless to say, the FBI could track these patterns using the same methods as the NSA and then exploit the results to create lists of "possible child molesters." And it might work. But would we be OK with the FBI tapping someone's phone just because they fit a statistical profile? Or staking out their house? Or investigating their friends?

And if we can do it for suspected terrorists and child molesters, how about tax evaders and unlicensed gun owners? Can we tap their phones too because they're the "kind of person" who might be breaking the law? Should a court grant a search warrant based on a statistical pattern rather than a showing of specific fact?

And if not, why not? After all, if you're not doing anything wrong, why would you object to being investigated? And if the statistical patterns just happen to target lots of wealthy Republicans or rural white gun collectors - well, that's how the cookie crumbles. If that's what the profiling turns up, then that's what the profiling turns up.

Any problems with that?


Well, the meta-problem is in this - "Americans need to come to grips with whether they approve of this." What Americans approve or disapprove doesn't really matter much, does it? If they disapprove, what are they going to do about it? There's not a thing possible now.

But say that was not so (or say that were not so, if you're one of those hopeful people who prefer the subjunctive mode). Grant the premise is that identifying criminals by statistical analysis is possible. Then what? Take care of them? How? As in Spielberg's silly Tom Cruise film Minority Report, is there something fundamentally wrong in the state removing people, one way or another, for crimes they are likely to commit, or statistically almost certain to commit, without having committed any crime? The blurb from the film - "In the future, criminals are caught before the crimes they commit, but one of the officers in the special unit is accused of one such crime and sets out to prove his innocence."

This is a science fiction scenario - Spielberg's film is based on a short story by Phillip K. Dick, and Asimov was in the very same territory in his Foundation trilogy. What do the folks at the White House read these days? They took that stuff seriously?

Well, the president himself turned to the author of Jurassic Park once, as noted here - "Fred Barnes recalls a visit to the White House last year by Michael Crichton, whose 2004 best-selling novel, 'State of Fear,' suggests that global warming is an unproven theory and an overstated threat."

The president may not be much of a reader, but he does read interesting stuff.

Grant the premise though, and ask yourself if you'd vote to change hundreds of years of legal precedent - the law only comes for you for what you do, not what you might do - because statistical analysis has become really good now. What's wrong with preventing a crime like a murder, as in the movie, or terrorist attack, as with the NSA pattern analysis of those billion or more phone records? You say there was no crime? The statistics say it's pretty much certain there would have been a crime.

Of course you see the real issue - who wrote the algorithms that drive the statistical analyses? Were they competent? Were they biased in any way, or careless, or unstable, or high on Twinkies, or jumpy from too much caffeine? Who cross-checked their work? Was the testing thorough at the code level and systems level? What about quality control and all the security stuff from version control to access control? Those of us who spent too many years in the systems industry may be more wary than the president and the president's men. But then, none of us is "the decider."

Drum follows up here saying that it may be too late to worry about all that, as he notes this from Noah Shachtman in Defense Tech


The template, officials say, was created from a secret database of phone call records collected by the spy agency. It has been used since 9/11 to identify calling patterns that indicate possible terrorist activity. Among the patterns examined: flurries of calls to U.S. numbers placed immediately after the domestic caller received a call from Pakistan or Afghanistan.


Science fiction becomes science fact, or possible fact. No one is checking on flurries of calls to domestic numbers from Jakarta or Addis Ababa, or Munich? Who developed this template? He or she doesn't know narrowly fixing the geography masses things up, or at least opens big holes? Effective systems don't "think small." Any coder knows what you design will not account for what you don't expect, and the trick is, always, do your best not to limit yourself, on purpose, by your assumptions about what the users will do, or what data are churned out in the results. It can get tricky. Something you don't expect always bites you in the ass.

And Drum also digs up a quote from First Amendment lawyer Floyd Abrams, here, on the real problem, or the overarching one. Abrams advises the feds –


We basically said if you want to engage in data mining, which we said was a very good way to gather information to fight terrorism, you should go to the FISA court to get permission. You should go to the court established by Congress and get an OK from the court to do so, and if - if you didn't think that was the right way to do it, you ought to go to Congress and get them to give you more authority to go to that court and get permission.


Yeah, but they said the FISA court, and any law like that, doesn't matter.

The news from Germany, the same day, was that they went the other way, with this from Germany's highest court –


In a decision made public today, the justices stated that foreign policy tensions or a collective threat level such as after the attacks of 9/11/01 do not suffice to permit the dragnet/grid/screen [i.e. data mining] searches... The justices found that officials [seeking to do data-mining] must have put forward concrete grounds to believe there will be foreseeable attacks in Germany.


No, no, no - the Germans gave us the fascist police state, perfected in the former East Germany. What's this role-reversal crap, with us sifting though everybody's everything, looking to get the goods on someone - we don't know who, but we'll get them before they do bad things? The irony is just sad.

Drum's thoughts –


The Bush administration can't keep this out of the courts forever, and if they continue to refuse to ask Congress to modify the law, there's a good chance the entire program will get tossed out eventually.

... Computer-based searches might very well be an effective way of tracking down terrorists. They might also be an effective way of tracking down lots of other criminals. But if that's the case, Congress and the courts need to set down clear guidelines and clear oversight for how it can - and can't - be used. The executive branch can't be allowed to decide unilaterally what's legal and what isn't.

The implications of this stuff are pretty far reaching. The American public and its representatives need to stop hiding from it and decide exactly how far they want it to go.


Like that matters now?

Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik

The inclusion of any text from others is quotation for the purpose of illustration and commentary, as permitted by the fair use doctrine of U.S. copyright law.  See the Legal Notice Regarding Fair Use for the relevant citation.
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