The FBI’s New Big Brother Plan

Privacy? Forget it now that the Federal Bureau of Investigation is at it again. CNET reports that the FBI is working overtime to ensure that Internet service providers (ISPs) will be forced to retain records of their customers’ use of the ‘Net for years after the fact and to make those records available to government agencies to use in criminal investigations.

In the last decade tens of millions of Americans have gotten online for entertainment, business, and even illegal purposes. Right behind them were the law enforcement officials of the FBI, CIA, and the rest of the other alphabet soup of the security apparatus.

Perhaps the highest-profile program the FBI implemented was called Carnivore, a massive Internet packet sniffer that could monitor the Internet traffic of crime suspects and ordinary, law-abiding citizens alike. The FBI defended the system, saying:

The Carnivore device works much like commercial "sniffers" and other network diagnostic tools used by ISPs every day, except that it provides the FBI with a unique ability to distinguish between communications which may be lawfully intercepted and those which may not.

As a software developer I can expertly state that, yes, the FBI could have been telling the truth. As an interested observer of the Bush administration’s tactics while running the War on Terror, I think it’s also safe to say that they were lying.

Now a new push is underway to make sure that more data than anyone dares imagine is kept on file, to be used against us.  While Greg Motta, the chief of the FBI’s digital evidence section, said that the bureau was not asking for the content data, such as the text of e-mail messages, be retained, there is no assurance whatsoever that the FBI would not retain its own records of such information and simply correlate that information with data provided by the ISPs.

Long-time readers will recall my assertions that telecom companies effectively had no choice but to turn over phone records to the government in the aftermath of 9/11. Private corporations are not equipped to stand up to the feds, nor should they be. Regardless of Mr. Motta’s assurances, this latest information warehousing scheme, which is supported wholeheartedly by state policing and other agencies in addition to the FBI, will lead to similar compromises of individual privacy.

Some celebrated when Carnivore was shut down, but that joy was misplaced. The custom sniffer program was disbanded in 2001, only to be replaced by a more effective commercial product, a change that demonstrates both the greater effectiveness of the private sector and the government’s determination to gather all available information about every one of us.

Cass Sunstein, Obama Confidant, Supreme Court Possibility, Repressionist

I frequently don’t see eye-to-eye with Glenn Greenwald, but his latest post about Cass Sunstein, a close confidant of President Obama and current head of the Office of Information and Regulatory Affairs, is a must-read given the talk that Sunstein could become a Supreme Court nominee should another opening present itself to the president.

Glenn writes that, in 2008, while at Harvard Law School, Sunstein wrote a paper that:

advocates that the Government’s stealth infiltration should be accomplished by sending covert agents into "chat rooms, online social networks, or even real-space groups."  He also proposes that the Government make secret payments to so-called "independent" credible voices to bolster the Government’s messaging

Because, says Sunstein, such powers are warranted only when wielded by truly well-intentioned government officials who want to spread The Truth and Do Good — i.e., when used by people like Cass Sunstein and Barack Obama

But it’s precisely because the Government is so often not "well-motivated" that such powers are so dangerous.  Advocating them on the ground that "we will use them well" is every authoritarian’s claim.  More than anything else, this is the toxic mentality that consumes our political culture:  when our side does X, X is Good, because we’re Good and are working for Good outcomes. That was what led hordes of Bush followers to endorse the same large-government surveillance programs they long claimed to oppose

I’ll stop with these snippets, but there’s a lot more in Greenwald’s article that deserves to be read in its entirety, so read it all.

Ask yourself, is planting propaganda-spouting stooges and administration spies into American media and discussion groups an appropriate role for the government? Clearly not.

As I discussed previously, American voters have a deep yearning to be led by people with principles, principles that must be derived from the powers invested in government by the Constitution, whatever the party of the representative. In too many cases we are not getting that now. Significantly, the trend line is not on the upswing despite the new president’s campaign trail rhetoric.

Based on his own writings and beliefs, Cass Sunstein cannot be allowed to be part of any government that even pretends to be operating above boards. He is, if anything, the archetype of a man who should not be allowed to hold power in any form, let alone occupy a position on the nation’s highest court.

The Virtue of Minding One’s Own Business

Catholic Archbishop Jose Cardoso Sobrinho’s excommunication of the mother of a 9-year-old girl who had an abortion after being raped by her step-father has infuriated many people in Brazil and elsewhere.  This is a case when being right in principle results in being wrong in fact.


Abortion is much more serious than killing an adult. An adult may or may not be an innocent, but an unborn child is most definitely innocent. Taking that life cannot be ignored.

The Catholic Church may not want her or her mother in their membership, but there are plenty of other Christian denominations that would be far less judgmental.

I dare say that the little girl was innocent as well.  The Archbishop should know that two wrongs do not make a right.  Forcing the girl to carry to term would have been a hideous crime in its own right.  This was a no-win situation, in other words, that Sobrinho would have done well to have looked away from.

Courts in this country would be wise to do the same in regard to acts of conscience by people whose professions can put them in situations in which they would have to violate their own personal, religious, or ethical beliefs in order to render service.

The Obama administration has already announced that it will restrict the rights of health care workers to be governed by their consciences by overturning the Bush administration’s “Conscience Rule” that protected  health workers who refuse to take part in abortions or provide other procedures or medicine that goes against their personal beliefs.

Now Catholic florists in Connecticut are worried that the state’s new law allowing gay marriage will force them to provide services for homosexual couples in violation of their personal religious beliefs.

Yes, the Bush Conscience Rule may have been too broad and Connecticut florists might be overly paranoid about future customers’ sexual foibles.  But the bottom line is that the right of people to make their own decisions about what is right and what is wrong is at the heart of what it means to be free.  The government has no business forcing people to undertake actions that they find objectionable.  Rather, the state should simply stay out of matters of conscience and stop attempting to bully everyone into toeing the politically correct line.

I’m sure that gay-friendly florists support that principle for reasons of their own, one of which is their economic prosperity.  Virtue is its own reward, after all.

No Crime in Doing What They Had to Do

John Yoo’s name has become synonymous with what some on the left consider egregious unethical and illegal behavior on the part of the recently departed Bush administration.  Today Yoo fired back, saying that the administration did what it had to do to protect the nation and what happened in Mumbai in November might have happened here if not for vigilant executive action.

Addressing the claim that the Bush administration’s actions violated the 4th Amendment, Yoo wrote:

The military does not have the time to obtain warrants before soldiers fire upon enemy targets and personnel; the battlefield does not provide the luxury to collect evidence needed to meet probable cause standards in civilian courts. Even if the Fourth Amendment applied, we believed that courts would judge military action under a standard of “reasonableness” — as they might review a police officer who fires in self-defense — rather than demand a warrant to use military force to stop a terror attack.

In all probability the Bush administration’s actions violated the intent of the 4th Amendment.  But what of it?  Bush, Yoo, and others did what had to – literally, had to – be done.  Mumbai proves that to all but the densest of souls.

The key takeaway from the Bush years is simply this: No further terrorist actions were taken on American soil during the last 7+ years of his administration.  It’s typical of the opposition, of whatever party, to second-guess any controversial action.  It’s particularly easy to do so in the safety afforded by that action.  It’s also foolish and detrimental to the future security of this and other western countries.

Yoo again:

if the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today’s intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future. President Obama has said he wants to “look forward” rather than “backwards.” If so, he should not restore risk aversion as the guiding principle of our counterterrorism strategy.

Again Yoo is dead-on accurate.  If Bush officials are ever charged with any sort of crime, the future aggressiveness of the nation’s security forces will be compromised and public safety will be diminished as a result.

John Yoo and company should get medals for what they did, not be subjected to politically motivated investigations aimed at feeding the Truthers’ cannibalistic appetite for the blood of the Bush administration.

Then, after they’ve been rewarded for keeping the country safe, their work should be undone.

Obama Eliminates Bush’s Executive Privilege Order


On his second day in office, Barack Obama fulfilled a campaign promise when he replaced George W. Bush’s executive order pertaining to executive privilege and the release – or withholding, in Bush’s case – of presidential records. 


Going forward, anytime the American people want to know something that I or a former President wants to withhold, we will have to consult with the Attorney General and the White House Counsel, whose business it is to ensure compliance with the rule of law. Information will not be withheld just because I say so. It will be withheld because a separate authority believes my request is well grounded in the Constitution.

This is a good thing.  Government should be transparent whenever possible and presidents, as we all know, are neither above the law nor beyond the need for scrutiny.

Executive orders such as these come and go and former President Bush had to know that his would not long survive his presidency.  Presumedly it served its purpose by allowing him to keep certain records private during two terms in office. 

Though I’ve long maintained that a Democratic president would have largely followed the same path with regard to the War on Terror and its conduct, it will be interesting to see what untoward information, if any, is ultimately revealed in the wake of Obama’s decision to lessen the protection level Bush administration documents will have.

Birth and Death Control

Hillary Clinton writes that the Bush Administration’s impending clampdown on access to birth control and "morning after" pills is outrageous interference in the lives of women.  She’s right, of course, although the decision also impacts men only a little less directly.

These rules pose a serious threat to providers and uninsured and low-income Americans seeking care. They could prevent providers of federally-funded family planning services, like Medicaid and Title X, from guaranteeing their patients access to the full range of comprehensive family planning services. They’ll also build significant barriers to counseling, education, contraception and preventive health services for those who need it most: low-income and uninsured women and men.

The regulations could even invalidate state laws that currently ensure access to contraception for many Americans.

It should be understood that contraception is not a right guaranteed by either the Constitution or any holy writ of which I am presently aware.  It is, however, a basic aspect of life that should fall under the control of citizens of a modern nation.  If the Bush administration persists in butting its peeping Tom head into the bedrooms of Americans it deserves a punch in the nose.

A significant majority of Americans say that morning after pills should be readily available and I agree with them.  Indeed, the people have spoken repeatedly on this issue.  President Bush’s steadfastness, so admirable when it comes to fighting terrorism abroad, is foolish and invasive as relates to personal birth control choices.  None of the mechanisms HRC describes could reasonably be categorized as abortions; the comparison is absurd, as is the notion that governments should be involved in the issue at all.

Government control is equally prevalent at the opposite end of life.  Because of ready access to certain deadly concoctions, Mexico is a favorite destination for the terminally ill – as well as friends/family of the same – who are ready for a peaceful end to life or simply want insurance against the pain of disease.

…aging and ailing people seeking a quick and painless way to end their lives say there is no easier place on earth than Mexico to obtain pentobarbital, a barbiturate commonly known as Nembutal.

Once widely available as a sleep aid, it is now used mostly to anesthetize animals during surgery and to euthanize them. Small bottles of its concentrated liquid form, enough to kill, can be found not on the shelves of the many discount pharmacies in Tijuana but in its pet shops, which sell a wide variety of animals, as well as medications and other supplies for them.

As the availability of such medicines has become more widely known, steps have been taken to keep the drugs from being sold and from being taken back to countries where they are sought after, Australia and the U.S., to name two.

The Catholic church calls suicide a mortal sin and many western governments have outlawed assisting a person in ending their life.  People on both sides of the debate have strong feelings.

“It’s awful to me,” Mr. Velazquez, the Tijuana veterinarian and pharmacy owner, said of euthanasia. “I think people should live as long as God decides.”

That’s a point of view that I’m sympathetic to.  However, ultimate responsibility for one’s conduct during life lies with the individual, not with the state.  State-mandated prosecution of individuals who help grant the wishes of terminally ill people who wish to end their lives is, on the face of it, just as foolish as attempting to dictate birth control methods.  It is certainly not the place of the state to judge God’s laws for Him.

It is true, I think, that condoning assisted suicide would lead to abuses of the practice.  That’s the sole redeeming aspect of the current ban – it’s unequivocal, even if it’s wrong.  Then again, the purpose of courts is to decide the legality of cases that fall into moral and ethical gray areas.  Must every aspect of life and death be scripted by the law?

Not in my opinion.  In its attempt to legislate and adjudicate perfect justice, western societies have entangled themselves in a mass of legalistic nonsense that is both ever-present and inescapable.  One can neither live nor die without getting permission, it seems, from the state, something that’s particularly troubling at a time when the American government is increasing its surveillance of our communications and monitoring of our travel.

Enough is enough.  Have we not even the right to manage our own bodies without Uncle Sam poking his head around the corner to say, "Don’t touch that!"?  The law should only be used to define basic morality.  The rest is between us and God.  Governments would do well to remember that.

Liberals Who Simply Can’t Let Well Enough Alone

Unhappy with the deal reached between the parties about the legal fate of telecom companies who helped the feds in the aftermath of 9/11, two of the looniest of the left are banding together in an attempt to filibuster the bill in the Senate:


"If the Senate does proceed to this legislation, our immediate response will be to offer an amendment that strips the retroactive immunity provision out of the bill. We hope our colleagues will join us in supporting Americans’ civil liberties by opposing retroactive immunity and rejecting this so-called ‘compromise’ legislation."

Meanwhile, Pamela Helsey points out that telecom companies give more money to Democrats who support immunity than those who don’t. 

Verizon, AT&T, and Sprint gave PAC contributions averaging:

$9,659 to each member of the House voting "YES" (105-Dem, 188-Rep)
$4,810 to each member of the House voting "NO" (128-Dem, 1-Rep)

The question of whether politicians vote according to whose filling their coffers is a fascinating one and well worth asking.  In this case, however, it’s a bore.  The Democrats being targeted for that special progressive-style love more commonly known as liberal hate are now voting in a fashion I deem correct.  What made them change their tunes is not that interesting to me.

Rather than ramble on, let me leave you with 3 thoughts about what is so irritating about this immunity boondoggle:

  1. If Democrats had been in power in September 2001, it’s highly likely that their administration’s actions would not have differed significantly from those of the Bush administration
  2. Whatever the right and wrong of this issue – and they’re in the wrong, make no mistake – Democrats are ignoring the present to nit-pick at the past.
  3. If Democrats have the balls to truly pursue the Constitutional issues behind the government’s use of telecom companies’ data – doubtful – they should be targeting members of the Bush administration rather than private, heavily-regulated corporations.

FISA Immunity

In what must be a blow for folks like Glenn Greenwald, Democrats and Republicans have come to the logical, inevitable conclusion that telecom firms who aided the Bush administration by compromising records of Americans’ telephony activities shall be immune from prosecution if asked to do so by the government.

Dan Froomkin hates the "compromise", which consisted primarily of Democrats finally acknowledging the reality of the immediate post-9/11 world and shutting their yaps.

What kind of a country is it where, when the head of state asks you to do something that may well be illegal, but assures you that he considers it legal, you can’t be held accountable for doing it?

Welcome to the new U.S. of A.

This is a good question and one that needs to be asked again and again.  Another, even better question for Froomkin to ask would be, "What kind of country is it when national security is breached and nothing is done for fear of offending the sensibilities of the opposition?"

As always I support Mr. Froomkin’s right to think and write as he sees fit and I applaud him for doing so.  Yet I must point out that the Constitutional freedoms he relies on when doing so are protected only by the administration whose actions he now, from the safety of his computer and the arms-length effect of time, decries.

This decision is the right one, at the right time. 

Phillip Carter says:

Absent negligent or intentionally wrong behavior by government contractors (in this case, telecommunications companies), we should not haul these companies into court over these programs. Decisions about surveillance are made by the government — not the telecommunications companies. And to a large extent, because they operate in such a regulated field, these companies have very little choice about whether and how to cooperate with government surveillance requests.

Told ya so, Glenn.

That said, it’s time for Congress to consider taking up the bigger issue at hand, namely under what conditions the continuing domestic spying program can be dismantled.  Thanks to the newfound spirit of compromise there is at least a semblance of due process in the offing.  While this will be an improvement, Americans should not simply accept this state of affairs as inevitable or desirable.  In this Froomkin and Greenwald are quite right.

Telco Immunity Deal Coming?

That’s what Jane Hamsher thinks

According to the ACLU, there is rumor of a backroom deal being brokered by Jay Rockefeller on FISA that will include retroactive immunity. I’ve heard from several sources that Steny Hoyer is doing the dirty work on the House side, and some say it will be attached to the new supplemental.

If she’s right, it’s about time. 

Americans’ privacy has been invaded in deep and profound ways during the Bush administration.  Is there anyone who truly believes otherwise?  But the right approach to rectifying the problem isn’t to go after the companies that cooperated, willingly or otherwise, with the Feds.  It’s to go after the officials who gave the orders. 

So far there’s been no willingness whatever on the part of Democrats to do that and I don’t fully understand why.  Best guesses:  Either they realize that doing so would be futile or they recognize that the administration did what it had to do during a security crisis.  Neither is a reason to target telecom companies.

Jane’s reminder to us of the power that a modern government spying apparatus can wield is interesting, in places, and worth taking to heart as technology continues to grow more powerful:

Unfettered access to the carrier’s systems offers powerful information. All calls and data communications including e-mail, Web, text messages, pictures and videos are attainable in real-time.

Our government tracks all Internet use with powerful tools that analyze and prepare behavior-based reports. Any single piece of information can be effortlessly cross-referenced to build an electronic dragnet constantly monitoring our actions and even predicting our behavior.

Information overload and processing power, once the sole barrier to these tactics, are no longer a factor. Given precipitous developments in technology, inaction today would surely have an exponentially greater impact on the rights and lives of future American generations — where an Orwellian nightmare would become reality.

But taking a little to far, Pasdar comes off a bit paranoid.

Ubiquitous Radio Frequency Identification (RFID) tags are permanently hidden in almost everything including clothes, packaged goods, credit cards and toll payment devices. As small as a grain of sand, they offer not just tracking but also detailed information on anyone or any item.

Scare tactics, none of which have much to do with the question at hand.  That is, should communications companies be prosecuted for cooperating with the government during a crisis, particularly for performing actions that have now been deemed acceptable?

Obama Adviser Favors Telecom Immunity; Barack Demurs

ABC’s Justin Rood reports that John Brennan, Barack Obama’s intelligence adviser, has gone on-record as being strongly in favor of granting immunity to telecoms that provided information to the national security apparatus in advance of a new law granting them that authority.

"I do believe strongly that [telecoms] should be granted that immunity," former CIA official John Brennan told National Journal reporter Shane Harris in the interview.  "They were told to [cooperate] by the appropriate authorities that were operating in a legal context."

"I know people are concerned about that, but I do believe that’s the right thing to do," added Brennan, who is an intelligence and foreign policy adviser to Obama.

That wasn’t just a personal opinion, Brennan made clear to Harris. "My advice, to whoever is coming in [to the White House], is they need to spend some time learning, understanding what’s out there, identifying those key issues," including the Foreign Intelligence Surveillance Act, he said — the law at the heart of the immunity debate.

"They need to make sure they do their homework, and it’s not just going to be knee-jerk responses," Brennan said of the presidential hopefuls.

That’s absolutely right, regardless of what certain writers at Salon, et al, believe.  Glen Greenwald’s knee jerk reflex is so automatic and so violent that it’s a wonder he can still walk with this issue not yet laid to rest.

And no, Glen, it has nothing to do with my being a closet Nazi.  It’s simple justice.  These companies did what they had to do in the midst of a national security crisis, the size and scope of which no one understood fully.  It’s foolish to look back now and second-guess them.

Now, if Democrats want to open a full-scale investigation of the administration ala Iran-Contra, more power to them.  There would be a purpose to ordering a probe of those officials who ordered the illegal wiretaps and data transfer.  But that is not going to happen because most Dems recognize that there is still a serious security situation today.  Going after the telecoms is akin to killing the messenger.

So what does Obama think about Brennan’s position?  Not much:

Last month, Obama voted to strip language in an intelligence bill that would have granted to Verizon, AT&T and other companies the immunity Brennan favored.  The firms have been identified in lawsuits as having cooperated with a National Security Agency program to intercept phone calls and other communications data within the United States.

What does Obama think? "Sen. Obama welcomes a variety of views, but his position on FISA is clear. He and Brennan differ," said campaign spokesman Tommy Vietor.

Barack Obama knows better than his own intelligence advisor.  Right.  Just the chap I want answering that 3:00 AM phone call in the White House.  Small wonder that most Democratic voters in Florida want Hillary to pick up the phone.