Tag: 4th Amendment
Immigration Policy is national security
The Weekly Standard notes that
Marco Rubio, the Florida senator who is running for president, was among those who voted against the USA Freedom Act. “Just four days before the terrorist attack in California this week, the USA Freedom Act limited our access to critical information about potential threats,” said Rubio’s campaign in a statement provided to THE WEEKLY STANDARD. “Because too many in Washington have failed to grasp the nature of this enemy, we have less access to intelligence information now than we did just days ago. In the wake of Wednesday’s attack on innocent Americans doing nothing more than going about their daily lives, we must act swiftly to reverse the limitations imposed on these critical intelligence programs. Radical jihadists are trying to kill as many Americans as they can. Our law enforcement and intelligence professionals need access to this information. Failing to give them the tools they need to keep Americans safe is dangerous and irresponsible.”
It’s just a bit odd to connect an attack your policy didn’t detect with the efficacy of that policy in preventing such an attack.
Rubio is better spoken than Josh Earnest, but the Senator sounds just like the Press Secretary when the latter was asked for an example of a mass shooting “more gun control” would have prevented.
Our law enforcement and intelligence professionals had the authority Senator Rubio is complaining they lost before the San Bernadino attack. Were they not using it, was it overwhelmingly vast or just useless? Or all three?
Of course, there was intelligence which could have stopped the attack, but law enforcement and intelligence professionals were prevented from using it by the Obama Administration’s exquisite tribalist sensitivities, not by Senators who voted in favor of the Fourth Amendment.
The male shooter in San Bernadino was aligned with a Mosque known to promote radical Islam, but an investigation that would have raised that flag was shut down by Homeland Security on the request of the State Department’s Office of Civil Rights. Killing this investigation can only be viewed as a public relations exercise in political correctness. No profiling!
The female shooter had publicly indicated she supported ISIS long before she was Federally “vetted” on three separate occasions. Federal policy prevented a search of her Facebook account that would have revealed this. On the admittedly flimsy assumption that support for ISIS is disqualifying, she would have been denied the opportunity to shoot anyone in San Bernadino.
Fearing a civil liberties backlash and “bad public relations” for the Obama administration, Homeland Security Secretary Jeh Johnson refused in early 2014 to end the secret U.S. policy that prohibited immigration officials from reviewing the social media messages of all foreign citizens applying for U.S. visas, according to a former senior department official.
“During that time period immigration officials were not allowed to use or review social media as part of the screening process,” John Cohen, a former acting under-secretary at DHS for intelligence and analysis. Cohen is now a national security consultant for ABC News.
Since multiple sources for determinative information which would have put these two under surveillance was ignored – because the approbation of the American elite left was more important to the Obama Administration than protecting Americans – we’re supposed to bend the Fourth Amendment to Senator Rubio’s will? Over an incident where the program he’s pushing failed?
Senator Rubio, if he wants to prevent future terror attacks, might consider directing his fire at the people who failed us with their PC attitude to vetting immigrants. Of course, Rubio has demonstrated he shares a bit of that attitude. He seems not to realize that Immigration Policy is the intersection of Foreign Policy with Domestic Policy. Rubio advances the surveillance state in order to maintain the illusion the two sets of policy are unrelated.
His complaint about the USA Freedom Act boils down to this: We need this intrusion into your life to keep you safe from our incompetence in using the obvious intelligence sources we already have.
Related: Quite a long article, but with a good bit of explanatory power about Cruz and Rubio on foreign and immigration policy. And why they’re attacking each other in precisely the way they are. This addresses some very substantive issues.
YMMV, but I do recommend it. It may assist you in a choice we’ll face if we can ever get rid of the blowhard rug-head.
And let’s finish by examining the Weekly Standard’s intro to the piece in the first link:
Thanks to a law recently passed by Congress and signed into law, federal law enforcement are unable to access phone records of the terrorists who killed or injured dozens of people in San Bernardino this week.
Wrong. All that’s necessary is a subpoena to get the needed records. I’m sure they got one almost instantly. I call Marco Rubio shilling on the Standard.
Rubio bulks up
Senator Marco Rubio is of the opinion that passage of the USA Freedom Act, which ends certain warrantless government surveillance of your internet and phone records, is dangerously misguided:
There is not a single documented case of abuse of these programs which were put in place after 9/11 to keep Americans safe.
First, the Senator elides any consideration that the once secret program – in and of itself – is an abuse of the Constitution and of American citizens. Your opinion may vary, but this question is quite reasonably open to debate. Even defenders of the program don’t describe it as liberty-neutral, they say the loss of privacy is justified by enhanced security. On that basis, as we’ll see below, the program is a failure.
He also seems to be equating “no abuse” with “Constitutional.” If your position is “It hasn’t been abused yet,” I don’t think you’ve quite thought the problem through. In any case, the definition of abuse does seem germane to the discussion. Senator Rubio has told us his definition. We’ll look look at some others momentarily.
Second, since the government places gag orders on its “requests” for information, the claim that there is “no documented case,” is a Clinton-Truth and an insult to the rule of law. But, I repeat myself.
Senator Rubio may have neglected to finish his sentence and meant “not a single documented case the public needs to know about.” Or, maybe he meant there’s more than one. You’d have to ask Bill and Mrs. Bill to translate. You may then pause to wonder how Mrs. Bill might use the collected data were she elected POTUS.
The FBI sent out over 400,000 National Security Letters between 2003 and 2011. NSLs are warrantless demands for information and simultaneously prohibit the recipient from publicly discussing the order. For example.
There’s a lot of secretly documented abuse going on, supported by secret judicial opinions from the Foreign Intelligence Surveillance Court.
The National Security Agency’s bulk collection of phone data was ruled illegal in May 2015 under the very legislation used to justify the program, and called “probably unconstitutional.” That’s documentation of general abuse under at least one definition of the word.
Unfortunately, that decision was not accompanied by an injunction to stop the bulk data collection. Even more unfortunately, a higher court reversed that ruling in August of 2015. That is why Congress had to act to eliminate the program.
Prior to those Court rulings the Privacy and Civil Liberties Oversight Board – set up to monitor the NSA, FBI et. el., – had found the government was abusing American’s civil rights and gaining essentially nothing. The PCLOB is an independent bipartisan agency within the executive branch established by the Implementing Recommendations of the 9/11 Commission Act of 2007. It issued a report on January 23, 2014.
Third, then, according to the people charged with oversight the bulk data collection is unauthorized overreach and without discernible benefit:
From pages 10 and 11 of the Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court:
There are four grounds upon which we find that the telephone records program fails to comply with Section 215. First, the telephone records acquired under the program have no connection to any specific FBI investigation at the time of their collection. Second, because the records are collected in bulk — potentially encompassing all telephone calling records across the nation — they cannot be regarded as “relevant” to any FBI investigation as required by the statute without redefining the word relevant in a manner that is circular, unlimited in scope, and out of step with the case law from analogous legal contexts involving the production of records. Third, the program operates by putting telephone companies under an obligation to furnish new calling records on a daily basis as they are generated (instead of turning over records already in their possession) — an approach lacking foundation in the statute and one that is inconsistent with FISA as a whole. Fourth, the statute permits only the FBI to obtain items for use in its investigations; it does not authorize the NSA to collect anything.
In addition, we conclude that the program violates the Electronic Communications Privacy Act. That statute prohibits telephone companies from sharing customer records with the government except in response to specific enumerated circumstances, which do not include Section 215 orders.
Finally, we do not agree that the program can be considered statutorily authorized because Congress twice delayed the expiration of Section 215 during the operation of the program without amending the statute. The “reenactment doctrine,” under which Congress is presumed to have adopted settled administrative or judicial interpretations of a statute, does not trump the plain meaning of a law, and cannot save an administrative or judicial interpretation that contradicts the statute itself. Moreover, the circumstances presented here differ in pivotal ways from any in which the reenactment doctrine has ever been applied, and applying the doctrine would undermine the public’s ability to know what the law is and hold their elected representatives accountable for their legislative choices…
The threat of terrorism faced today by the United States is real. The Section 215 telephone records program was intended as one tool to combat this threat — a tool that would help investigators piece together the networks of terrorist groups and the patterns of their communications with a speed and comprehensiveness not otherwise available. However, we conclude that the Section 215 program has shown minimal value in safeguarding the nation from terrorism. Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack. And we believe that in only one instance over the past seven years has the program arguably contributed to the identification of an unknown terrorism suspect. Even in that case, the suspect was not involved in planning a terrorist attack and there is reason to believe that the FBI may have discovered him without the contribution of the NSA’s program.
The Board’s review suggests that where the telephone records collected by the NSA under its Section 215 program have provided value, they have done so primarily in two ways: by offering additional leads regarding the contacts of terrorism suspects already known to investigators, and by demonstrating that foreign terrorist plots do not have a U.S. nexus. The former can help investigators confirm suspicions about the target of an inquiry or about persons in contact with that target. The latter can help the intelligence community focus its limited investigatory resources by avoiding false leads and channeling efforts where they are needed most. But with respect to the former, our review suggests that the Section 215 program offers little unique value but largely duplicates the FBI’s own information gathering efforts. And with respect to the latter, while the value of proper resource allocation in time-sensitive situations is not to be discounted, we question whether the American public should accept the government’s routine collection of all of its telephone records because it helps in cases where there is no threat to the United States.
Further reading for those of most political persuasions:
Electronic Freedom Foundation
The NSA’s Call Record Program, a 9/11 Hijacker, and the Failure of Bulk Collection
House Judiciary Committee
H.R. 2048, THE USA FREEDOM ACT
National Rifle Association
USA FREEDOM Act Becomes Law, Enhances Privacy for Law-Abiding Americans
Jonathan Mayer, a computer scientist + lawyer at Stanford
MetaPhone: The Sensitivity of Telephone Metadata
ACLU V. NSA – CHALLENGE TO WARRANTLESS WIRETAPPING
Senator Rubio says Senator Cruz voted to ‘weaken U.S. intelligence.’ I’d say Cruz voted to protect American liberty.
File Says N.S.A. Found Way to Replace Email Program
So, NSA does not need to collect and store everyone’s email to provide security insights. They told a Clinton “Truth” when they said they shut the program down for “operational and resource reasons” – they meant they found another way to do it.
As far as phone records, all the bulk data is still available from the phone companies – it just requires observance of the 4th Amendment.
When we are asked to trade fundamental civil rights for security by a government that could find no wrongdoing at the IRS, blamed a minor film maker for its own deadly security lapse at Benghazi, runs an airport security agency which misses 95% of weapons it’s tasked with finding, prevaricates about the data it gathers on its own citizens, ignores precise warnings about bomb plots (the Tsarnaevs), refuses to use the words “Radical Islam” even while terrorists shouting “Allahu Akbar!” murder scores – calling the terrorists a lesser threat than climate change – why should we trust their promises regarding our civil rights?
Why, in fact, should we trust such power even to men and women with a good track record? Men and women in government change, sooner or later you get ones like we have now. A “good track record” means preserving and protecting the Bill of Rights.
In recent days, Ted Cruz has attacked Marco Rubio on Rubio’s well known, and since abandoned, proposal favoring a path to citizenship/illegal immigrant amnesty.
Then, Marco Rubio attacked Ted Cruz on Cruz’ (and Rand Paul’s) resistance to NSA’s warrantless accumulation of email and phone records from American citizens, going so far as to link Cruz to Edward Snowden and the atrocity at Bataclan.
That settles the Cruz/Rubio question for me. Rubio is suspect on illegal immigration and squishy on the 4th Amendment. And, trying to tie Snowden and the Paris atrocities to Cruz is despicable.