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When Spies and Crime-Fighters Squabble Over How They Spy On You
The Washington Post reports in a short article on the sometimes strange, sometimes strained relationship between spy agencies like the NSA and CIA and law enforcement (as well as judges and prosecutors) when it comes to evidence gathered using technology or techniques that the spy agencies would rather not disclose at all, never mind explain in detail. They may both be arms of the U.S. government, but the spy agencies and the law enforcers covet different outcomes. From the article:
[S]sometimes it's not just the tool that is classified, but the existence itself of the capability — the idea that a certain type of communication can be wiretapped — that is secret.
One former senior federal prosecutor said he knew of at least two instances where surveillance tools that the FBI criminal investigators wanted to use "got formally classified in a big hurry" to forestall the risk that the technique would be revealed in a criminal trial. "People on the national security side got incredibly wound up about it," said the former official, who like others interviewed on the issue spoke on condition of anonymity because of the topic’s sensitivity. "The bottom line is: Toys get taken away and put on a very, very high shelf. Only people in the intelligence community can use them." ... The DEA in particular was concerned that if it came up with a capability, the National Security Agency or CIA would rush to classify it, said a former Justice Department official.
Just like I'll never admit what Slashdot account I'm using to farm karma with!
What's the deal with the double esses on "ssometimes" in the ssummary and excerpt?
Yay for serpentspeak!
They have no real oversight anymore, by design. Only between eachother is there any contention. What is legal no longer matters.
Stingray cell phone intercepts, for starters.
The list goes on into the infinite darkness your taxes pay for and for which your laws were expressly written to never allow.
What they fear isn't the criminals finding out about it...
Woe to him who gets evil gain for his house To put his nest on high, To be delivered from the hand of calamity! You have devised a shameful thing for your house By cutting off many peoples; So you are sinning against yourself. Surely the stone will cry out from the wall, And the rafter will answer it from the framework.
Habakkuk 2:9-11
I remember that after 9/11, one of he big focuses of the Federal government was to get all of the various intelligence and law enforcement agencies - specifically the FBI and CIA - to work together and share intelligence. The fact that they weren't working together was one of the factors that contributed to the 9/11 hijackers being able to pull off their plot. This is the entire reason that the Department of Homeland Security was created, to bring all intelligence about threats to the United States under one body.
Now, it looks like they're splitting up again, just like they did before 9/11. What's it going to take for them to realize this is a bad idea?
Lock them all up in prison and hand each a copy of the constitution to read over and over again for a few decades.
So, can I claim this as a victory under the "enemy of my enemy" philosophy?
Of course what goes without mention here is that "high shelf" just means they have to go through the trouble of getting the trial itself declared a matter of national security, meaning they can classify the entire charade (pfft, speedy and public what?).
A law enforcement agency invented or discovered a new technique, that can help them in their job? Great! It's good to hear that they are exercising their creatived talents and advancing their field. As long as the new methods are legal and constitutional, there is no problem. If, on the other hand, it croses the constitutional limits in small ways, that's understandable - time change, and if the proposal is reaonable, the constitution can change with it.
So the simple solution is to see if an Amendment can be passed to allow it. Worries about criminals finding out aren't relevant - you can' t use it in a court anyway. As for worries about the NSA or CIA flying in to classify it, well, it's a LOT harder to put that geenie back in the bottle once amendment debates start happening. Even in the worse case where this particular case is ruined from the public disclosure, the investment towards free use of a new category of tools in the future could easly be worth the setback.
Now, I'm sure a lot of you are thinking I'm being sarcastic (or delusional). It's not like such an amendment would ever have a chance at passing, right? Well... that's hard to say. I would probably be against it as initially proposed, but that's not relevant - by making the proposal, and opening up the topic for public discussion and public input, instead of working in secret, maybe we - the citizens - can negotiatiate with our neighbors and figure out a way to allow this new law-enforcement technique. How can we know how such a debate would go? Yes, it's a risk, but so is working in secret, hoping nobody finds out about some new technique.
Maybe it just needs some ground rules about when/where it can be used. Maybe we could allow it if it had some sort of oversight/watchdog group. Maybe we can invent some new type of social compromise; after all, it's a new technique - maybe it needs a new way of fitting into our legal system.
On the other hand, maybe...
Ce n'est pas une signature automatique.
If you think the Gov't would never do such a thing to spur the population to war, search pearl harbor attack foreknowledge, gulf of tonkin incident, Israel attack USS Liberty.
What the leaders of the military industrial intelligence complex got out of 9/11 was their wet dream... 2 wars, the TSA and a ban on anonymous travel, warrant-less searches, every communication logged and searchable. So, perhaps they think why NOT another 9/11, and why not tee-up plausible deniability for the next round? One morning the world will be different in a very bad way, we will be bloodied and shocked, and the hawks will be waiting at the front of that parade again.
then what have they got to hide ?
At least: that is what we are being told. So if that is good enough for us, why is it not good enough for them ?
These cocksmokers are worse than the criminals.
I've calculated my velocity with such exquisite precision that I have no idea where I am.
"ssometimes strange, ssometimes strained."
Lots of 'SS" going on. Did I Nazi what you did there?
"Democracy." It's just a slogan.
Re "Doesn't sound very constitutional to me. What have we become?" :)
In the past the GCHQ would do everything it could to stay out of court closed or open. No methods, no logs, no experts with no pasts to confirm documents as found, decrypted.
Any information gathered would have to be undergo parallel construction by other services or methods to remove any signal or decoding aspects.
The problem for the US is the very public talk of " all the phone records into a lockbox" to be reconstructed anytime over a persons life.
Within the US there is limited access to the top political policy setting. Other groups within the US domestic and more international law enforcement may not like a signals conversation with the public.
What the GCHQ only had to fend off every few decades in the UK with policy makers is now very public in the USA - total mastery of global telecommunications network with generational storage.
Slowly the other aspect is becoming more public too: "European Court Says CIA Ran Secret Jail in a Polish Forest" (July 24, 2014)
http://www.nytimes.com/reuters...
Its the age old use of signals intelligence - never tell the public and it is perfect. The problem for the USA is so many groups are now using signals intelligence that they all want the big wins in public and closed trials.
The problem is once signals intelligence gets out in court at a city, state, federal level - the magic stops. Every court connected member of the press, legal profession, law enforcement suddenly has a story to sell, tell or whisper.
Anybody who needs to know about crime and signals intelligence can then just buy the methods and drop out.
What did the UK learn early on? Dont give political leaders raw information about the Soviet Union - ever. Dont go to court over spies - ever. Dont go to court over leaks, whistleblowers or tell all books or for peace activists.
The UK knows the stories then just drop away from the front pages and drift off into academic books with very limited print runs.
The real unknown is the US cyber industrial complex with products to sell, rent and look after in every city and state if lobbied.
The West has become one big signals intelligence marketplace and laws need to be relaxed to enjoy new sales
Domestic spying is now "Benign Information Gathering"
This article sounds like it is beating around the bush, alluding to but never mentioning the discovery of "Parallel Construction". Its a policy whereby illegal evidence is snuck into court by using it to find other evidence and not informing the courts, defendants and sometimes not even prosecutors where the initial leads came from. An example would be there is a suspected drug runner, NSA intercepts are used to tap his phone & internet communications. They find what they believe is a date and time where the runner will be carrying some drugs in their car, they then have some officers make up an excuse to pull them over and search their car. They conveniently "forget" however to tell anyone outside the law enforcement/intelligence community that their initial lead was based on warrant-less searches. And apparently many have the gall to say that it is a "It's decades old, a bedrock concept.", something tells me that if government agencies have to keep it secret from the courts its almost certainly illegal.
Bingo, there it is!
*Repent!Quit Your Job!Slack Off!The World Ends Tomorrow and You May Die!
It makes sense, right? From the pov of the natsec people, these things help them secure the nation against potentially catastrophic attacks. From the pov of the LEOs , these represent the natural progression of tools they use to catch some pretty dangerous people, some of whom may also represent a significant danger to the nation, so why should they be deprived of their utility? Both sides can only be expected to strongly advocate for their side. You need 3rd party adjudication in this scenario. In general, we need much more serious 3rd party involvement in all of this spy tech. The FISA court really is nothing but a rubber tamp composed of people who have very narrow real world experience but for whom 'the system' has never given the slightest hiccup on their , largely unearned rise to power. They're political hacks, appointees lifted into place because, well, someone has to be so lifted and they never rendered any offense and they expressed the right political opinions to the right people at the right time. They think the system is just dandy- worked for them! We desperately need the NSA and the FBI to be doing their jobs with all the tech we can give them. Turf and tech wars WILL happen between well intentioned parties. That's a given. What we're missing is real, wise oversight and refereeing such that the public and both parties ultimately have real faith in the reasoning by those overseers. Really, the NSA scandal is scandal of the FISA court process. It's composed of intellectual lightweights and cowards and a few rich little girls whose chief unconscious guiding principle is they want BigMen to protect them so they can go on living their posh lives, feted and paid attention to by the powerful at clinking cocktail parties because, hey, that's what civilization is about. Get judge Richard Posner in there. Get some people who have well considered povs and a well developed sense of statesmanship and what it means to be a nation of people, rights, laws, threats and tradeoffs needed to make it all work. Of course LE grabs for everything it can. If it were your job, so would 99,999 out of 100,000 of you too. The kind of reticence and carefulness to maximizing your own advantage at the cost of some encroachment of an abstraction like civil liberties does not exist in enough people to populate the NSA so that the jobs get done. It's just not many hmans are. Thats why we have to look to oversight. Get some hardcore civil libertarians and hardcore natsec hawks into the process. It will work itself out. The civil libertarians will come to see that the worst form of civil rights violation is everyone is dead, and the natsecs will come to see that a nation that devoles into a version of 1984 is not a goal worth protecting, in fact, just the opposite. As it is, the executive looks for every fakey boo hoo slip of the tongue reason to jail or administratively silence just the people whose pov we need as input in oversight and the civil libertarians are just clueless wrt to the seriouness of the threats we face and conclude , wrongly, that the NSA has gone mad with power and has installed the Constitution as toilet paper in their bathrooms. It's a failure to maintain the necessary diversity of opinions and a failure of wise adjudication of those opinions. That's our problem.