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Author Topic: The NSA's warrantless wiretapping is a crime, not a state secret
philnotfil
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guardian.co.uk

quote:
Despite the fact that the mass wiretapping was first exposed by the New York Times in 2005, and subsequently reported on by dozens of news organizations, the government continues to maintain that the "state secrets" privilege should prevent the courts from even the basic determination of whether the NSA's actions are legal or constitutional. This position isn't correct legally, since, in 1978, Congress created the Foreign Intelligence Surveillance law specifically requiring the courts to determine the legality of electronic surveillance. But it also isn't the right answer for a country founded on the supremacy of law and the constitutional protections against untargeted searches and seizures.

Now, three longtime NSA employees – William E Binney, Thomas A Drake, and J Kirk Wiebe – have come forward and offered additional inside evidence to support the lawsuit, all of which confirms what an increasing mountain of evidence shows: that the US government is engaging in mass dragnet surveillance of innocent, untargeted American people, as well as foreigners whose messages are routed through the US. As Binney states, "the NSA is storing all personal electronic communications."

quote:
The government's response? A preposterous claim that no court can consider the legality of this surveillance unless the government formally admits it. In fact, the government maintains that even if all the allegations are true, the case should be thrown out under the state secret privilege.
quote:
Whether the threat comes from the warrantless surveillance of our cell phone location data by the local police, or the wholesale collection of our emails and phone calls by the NSA, all citizens deserve reasonable privacy in our communications. And we assert the right to hold the government accountable for violating that privacy.
Brilliant defense, until we admit that we are actually doing it, you can't sue us for it.
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TommySama
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I actually heard a similar defense in middle school
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Pete at Home
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Might a plausible argument that could be made that examining the patterns and policies for wiretapping, could inform domestic terrorists how best to conceal themselves?

Seems to me that the solution is to toll the statute of limitations for 10 years, then give the state 10 years to turn over all secrets to the court. By then new procedures would need to have evolved anyway. And justice could be done on whether or not the tappings were legal. Justice delayed ain't justice denied.

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TomDavidson
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quote:
Justice delayed ain't justice denied.
Hm. I don't think I agree with you -- or, rather, I think it becomes harder to repair the damage done the longer one waits, and thus harder to actually achieve justice.
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Pete at Home
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quote:
Originally posted by TomDavidson:
quote:
Justice delayed ain't justice denied.
I think it becomes harder to repair the damage done the longer one waits, and thus harder to actually achieve justice.
I agree. That is a down-side to my suggestion.

OTOH, with a ten year toll in the Statute of Limitations, Plaintiff has more of a chance of demonstrating actual damages.

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G3
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quote:
The federal government may spy on Americans’ communications without warrants and without fear of being sued, a federal appeals court ruled Tuesday in a decision reversing the first and only case that successfully challenged President George W. Bush’s once-secret Terrorist Surveillance Program.

“This case effectively brings to an end the plaintiffs’ ongoing attempts to hold the executive branch responsible for intercepting telephone conversations without judicial authorization,” a three-judge panel of the 9th U.S. Circuit Court of Appeals wrote.

<snip>

The San Francisco-based appeals court ruled that when Congress wrote the law regulating eavesdropping on Americans and spies, it never waived sovereign immunity in the section prohibiting targeting Americans without warrants. That means Congress did not allow for aggrieved Americans to sue the government, even if their constitutional rights were violated by the United States breaching its own wiretapping laws.

“Under this scheme, Al-Haramain can bring a suit for damages against the United States for use of the collected information, but cannot bring suit against the government for collection of the information itself,” Judge M. Margaret McKeown wrote for the majority. She was joined by Judge Michael Daly Hawkins and Judge Harry Pregerson.

So there you have it, warrantless wiretapping is not a crime at all - even if it violates your constitutional rights, it's not a crime.

[ August 08, 2012, 02:32 PM: Message edited by: G3 ]

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djquag1
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Ugh. When the 9th supports authoritarianism, you know you're screwed.
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Pete at Home
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quote:
Originally posted by djquag1:
Ugh. When the 9th supports authoritarianism, you know you're screwed.

It is a sad day. [Frown]
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TomDavidson
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My understanding of sovereign immunity suggests that this was the correct ruling, actually. I'm not fan of totalitarian surveillance, mind you, but it seems to me that two valid avenues for suit exist:

1) Sue the government for actual damages, when damages occur due to illegal wiretapping;
2) Sue one or more of the individuals who ordered that your data be collected or helped collect your data.

I think the second approach remains legally valid, and should probably have been the one taken.

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G3
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quote:
Originally posted by TomDavidson:
My understanding of sovereign immunity suggests that this was the correct ruling, actually. I'm not fan of totalitarian surveillance, mind you, but it seems to me that two valid avenues for suit exist:

1) Sue the government for actual damages, when damages occur due to illegal wiretapping;
2) Sue one or more of the individuals who ordered that your data be collected or helped collect your data.

I think the second approach remains legally valid, and should probably have been the one taken.

1)You cannot sue the federal government unless they consent to be sued. They have consented before but that does not mean they will every time or ever again.

2) Not so easy as you can see, from Feb 2008:
quote:
The Senate today gave AT&T and Verizon retroactive legal immunity for their roles in handing over consumer voice and data information wholesale to the NSA without a court order.
You *will* bow to your masters, government or corporate.

Quick addition, get this: https://silentcircle.com/

[ August 09, 2012, 05:40 PM: Message edited by: G3 ]

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G3
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Let's put this here too ...

quote:
"The Sixth Circuit Court of Appeals has held that it is okay for police to track your cellphone signal without a warrant. Using information about the cell tower that a prepaid cell phone was connected to, the police were able to track a suspected drug smuggler. Apparently, keeping your cellphone on is authorization for the police to know where you are. According to the ruling, '[The defendant] did not have a reasonable expectation of privacy in the data emanating from his cell phone that showed its location.' Also, 'if a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal.
and ...

quote:
"Today, tens of thousands of license plate readers (LPRs) are being used by law enforcement agencies all over the country—practically every week, local media around the country report on some LPR expansion. But the system's unchecked and largely unmonitored use raises significant privacy concerns. License plates, dates, times, and locations of all cars seen are kept in law enforcement databases for months or even years at a time. In the worst case, the New York State Police keeps all of its LPR data indefinitely. No universal standard governs how long data can or should be retained."
Big Brother really is watching ...
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D.W.
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That's just going to get worse. People need to understand our laws need to be ahead of technology. Not playing catchup only after techonology is abused. Or worse, is intentionally abused because the law makers don't think we pay attention.

That said if Big Brother wants to watch me fine. I don't have anything to hide. If B.B. wants to make money off of what he knows about me, then I have a problem. If it's MY information then you should pay ME if you want it and I should set the price.

[ August 17, 2012, 09:16 AM: Message edited by: D.W. ]

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G3
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quote:
Originally posted by D.W.:
That said if Big Brother wants to watch me fine. I don't have anything to hide.

You very likely do have something to hide. The average American unintentionally commits three crimes, frequently felonies, a day. You and I, probably being a average Americans, are committing criminal acts every single day.

Right now, you and I get away with it because enforcement is difficult, police can't be everywhere you know. Except now they can. Not only that, they can be everywhen since they can store the data forever and review it when they're ready to grease you for being the squeaky wheel.

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G3
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And just to keep it going ... the DEA:
quote:
...U.S. District Judge William Griesbach ruled that it was reasonable for Drug Enforcement Administration agents to enter rural property without permission -- and without a warrant -- to install multiple "covert digital surveillance cameras" in hopes of uncovering evidence that 30 to 40 marijuana plants were being grown.

<snip>

... Griesbach adopted a recommendation by U.S. Magistrate Judge William Callahan dated October 9. That recommendation said that the DEA's warrantless surveillance did not violate the Fourth Amendment, which prohibits unreasonable searches and requires that warrants describe the place that's being searched.

"The Supreme Court has upheld the use of technology as a substitute for ordinary police surveillance," Callahan wrote.

Two defendants in the case, Manuel Mendoza and Marco Magana of Green Bay, Wis., have been charged with federal drug crimes after DEA agent Steven Curran claimed to have discovered more than 1,000 marijuana plants grown on the property, and face possible life imprisonment and fines of up to $10 million.

Mendoza and Magana asked Callahan to throw out the video evidence on Fourth Amendment grounds, noting that "No Trespassing" signs were posted throughout the heavily wooded, 22-acre property owned by Magana and that it also had a locked gate.

Callahan based his reasoning on a 1984 Supreme Court case called Oliver v. United States, in which a majority of the justices said that "open fields" could be searched without warrants because they're not covered by the Fourth Amendment.

Property is locked up, no trespassing signs posted.

Traditionally, government agents could enter areas (sometimes called "curtilage") if they were open to the public, such as access routes and walkways to the house with the caveat that when confronted by obvious indications of a property owner’s desire to exclude intruders, such as no trespassing signs that specifically call out government agents too - a generic no trespassing sign is not considered sufficient, you have to say it includes any and all government agents. Under this ruling, I believe that expectation is now gone. Government agents can pretty much go through any private property without a warrant now except for you residence (although they have ways of seeing into that without a warrant too).

The thing to worry about from this:
quote:
As digital sensors become cheaper and wireless connections become more powerful, the Justice Department's argument would allow police to install cameras on private property without court oversight -- subject only to budgetary limits and political pressure.
Google "smart dust". It real and it's going to happen. Put that with this ruling. Creepy, eh?
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AI Wessex
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It's quite -- quite -- possible that they're watching you right now.
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G3
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Seems as good a thread as any for this:
quote:
Reports that the Obama administration has been collecting the phone records of millions of Verizon customers in the U.S. could contradict statements made by top officials who previously claimed the government was not holding data on Americans.

Director of National Intelligence James Clapper was asked at a March hearing whether the National Security Agency collects any data on millions of Americans.

"No sir ... not wittingly," Clapper responded, acknowledging there are cases "where inadvertently, perhaps" the data could be collected.

NSA Director Gen. Keith Alexander also told Fox News last year that the agency does not "hold data on U.S. citizens."

But the Guardian newspaper reported late Wednesday that the administration has been collecting the phone records of millions of U.S. customers of Verizon under a top secret court order.

The order, a copy of which apparently was obtained by The Guardian, reportedly was granted by the secret Foreign Intelligence Surveillance Court on April 25 and is good until July 19.

It requires Verizon, one of the nation's largest telecommunications companies, on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the U.S. and between the U.S. and other countries.

I guess it had to go to the Guardian since any American reporter working with this information would have likely become a target of the Obama regime, as others have (along with their families). This only mentions Verizon but it's pretty safe to assume AT&T and other carriers are in the same state.

Who you called, where you were when calling, where they were when you called them, the length of the call any any other meta-data is stored by the NSA. The only thing supposedly not being handed over to the Obama regime - the actual content of your call. I say supposedly since there is no way to tell is there? Just gonna have to trust them on this one I guess. Maybe they only listen in on the content of Conservative's calls - too bad that's not a joke, eh?

[ June 06, 2013, 02:34 PM: Message edited by: G3 ]

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Seneca
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I still remember when Obama campaigned on getting rid of the Patriot Act...

Then he was elected and signed its renewal.

I remember when Obama campaigned against using drones saying it hurt our foreign policy and reduced our international legitimacy.

Now he uses them all the time.

I remember when Obama campaigned on closing Guantanamo, it took him until after re-election to finally start transferring prisoners out of there even though he could have done it right away in 2009 even though Congress didn't approve its closure.

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G3
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That kind of recollection makes you a racist.
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TomDavidson
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quote:
This only mentions Verizon but it's pretty safe to assume AT&T and other carriers are in the same state.
We don't need to assume it. We know they are. One thing that's fascinating about this latest flap is that it's literally something that's been going on for years. We've talked about it on this board a dozen times in the last decade.
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G3
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I think we talked predominantly about Bush doing it - and how Obama was going to end it. I also think the scope of it is a little more than we thought with the geo-tracking - not so possible or refined during the Bush years when every cell phone did not have GPS integration. Add in the US to US calls Barry is collecting, with Bush I seem to recall it was US to international only. And of course, the DNI and NSA director lying to congress is a bit of a wrinkle, not sure how new of one.

Is there any faction of Obama supporters that have not been fully **** on yet?

[ June 06, 2013, 04:13 PM: Message edited by: G3 ]

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G3
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Just so we all know how the Obama regime thinks, Josh Earnest, White House Special Assistant to the President and Principal Deputy Press Secretary, read a prepared statement to the press regarding the Verizon/NSA news:
quote:
There is a robust legal regime in place governing all activities conducted pursuant to the Federal Intelligence Surveillance Act. That regime has been briefed to and approved by the court. And activities authorized under the Act are subject to strict controls and procedures under oversight of the Department of Justice, the Office of the Director of National Intelligence, and the FISA Court to ensure that they comply with the Constitution and the laws of the United States, and appropriately protect privacy and civil liberties.
Google "Federal Intelligence Surveillance Act" and what do you find? It's actually FOREIGN Intelligence Surveillance Act. Apparently the Obama regime has decided to rework the law a bit - and don't tell me it's a slip of the tongue or something, this was a prepared statement.

Something that we all should love:
quote:
The defense of this practice offered by Senator Dianne Feinstein of California, who as chairman of the Senate Intelligence Committee is supposed to be preventing this sort of overreaching, was absurd. She said today that the authorities need this information in case someone might become a terrorist in the future.
Authorities need this information in case someone might become a terrorist in the future. How awesome is that?
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D.W.
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Her stance on gun control may be more self preservation than public policy.
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AI Wessex
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Here's another good opportunity for the troll to have to eat his words. You know, Feinstein also said: "People want the homeland kept safe." What, you don't want our homeland to be kept safe??? Lindsay Graham said he's a Verizon customer and he's perfectly fine with this, since it's being done to combat the threat of terrorism and took place right after the Boston bombing. What's the matter, you think Graham is part of the secret Obama cabal trying to steal your rights? Jim Sensenbrenner said the laws were written to be as broad as possible. Ari Fleischer said he supports Obama's attempts to go after terrorists. You mean don't want to go after terrorists???

"...and don't tell me it's a slip of the tongue or something, this was a prepared statement."

It was a slip of the tongue or something. You do that all the time, but it's intentional.

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G3
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quote:
Attorney General Eric Holder refused to answer when asked if the Justice Department is spying on members of Congress, citing the need for a classified conversation, which lawmakers accepted while asking him to make sure that evidence of such surveillance is not destroyed.

“With all due respect, Senator, I don’t think this is an appropriate setting for me to discuss [this issue],” Holder replied during a Senate Appropriations Subcommittee hearing when Sen. Mark Kirk, R-Ill., asked if the executive branch was conducting surveillance that would give “unique leverage” over lawmakers.

Kirk replied that “the correct answer would be no, we stayed within our lane, and we did not spy on members of Congress.”

Holder assured Kirk that “there is no intention to do anything of that nature — that is, to spy on members of Congress or to spy on the Supreme Court.”

So, was the dragnet sifted to include only the proles and protect the privacy and rights of the inner party members only?
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G3
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quote:
On March 12, at a hearing of the Senate Intelligence Committee, Wyden [Sen. Ron Wyden, D-Ore] asked Clapper: "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" Clapper responded: "No, sir." When Wyden followed up by asking, "It does not?" Clapper said: "Not wittingly. There are cases where they could, inadvertently perhaps, collect—but not wittingly."
Asked for clarification today, Clapper's response:
quote:
"What I said was, the NSA does not voyeuristically pore through U.S. citizens' e-mails. I stand by that," Clapper told National Journal in a telephone interview.
So Wyden asks about any type of data at all and now Clapper says it was just email. Yeah. What a lying sack of ****.
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D.W.
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Cabal suggests intent. I'm still open to the possibility those who may be labeled as such are wiling to let our rights be collateral damage and causing more harm than good unintentionally rather than nefariously. Though that position seems less tenable all the time.

I still prefer liberal over conservative and democrat over republican. Right now it seems to just be a choice between someone I like who stron garms me now and then and sticks me with the check at lunch or a bully I wouldn't care for even if they weren't picking on me.

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TomDavidson
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quote:
I think we talked predominantly about Bush doing it - and how Obama was going to end it.
IIRC, we talked about how Obama promised to end it, and then how pissed we were that Obama didn't end it but actually expanded it.

I remember, eight years ago, going off on somebody on this forum because I'd just had to install a new router at the college where I worked so the government could collect our Internet traffic and some people here suggested that was a perfectly reasonable thing to do.

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Pyrtolin
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Clarifying this, since what's actually happening here is being misrepresented a bit- the warrant is an authorization to continue a 7 year old to populate an NSA database with all of the call data (but not the content of the calls). It doesn't actually give any authorization to review the data in any way, only to collect it in one place. To actually look at and use the information, the FBI, NSA, DHS, or whatever law enforcement arm wants to view it needs to get a separate, specific warrant for what they're trying to look for. They can't go fishing through it, and they can't arbitrarily look at anyone's call data.

Of course that warrant process also goes through FISA and the details are still kept secret on the basis of national security concerns, so it's still totally opaque as far as public oversight goes.

The question of whether this should be acceptable still remains, but the fact that it's a passive, blind collection process, and not any form of active investigation is something that seems like one of those mundane details that the media likes to gloss over because it's not sensational enough to point out.

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D.W.
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They gloss over it because it's pure BS. By "can't" just fish through it you mean "promiss not to".
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AI Wessex
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Dude, they've had *everything* for at least a dozen years. It's way past the time to get your knickers in a twist about this relatively superficial aspect of their data collection. You already gave up your rights to the Patriot Act. Arguing over this detail that they've been doing for at least 7 years is really silly.
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Seneca
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http://en.wiktionary.org/wiki/BOHICA

Not my style but I guess there's a few sheep here.

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AI Wessex
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Sure. Were you manning the ramparts for the last 12 years, or is the fact that the government does this a sudden revelation for you? And what exactly are you going to do about it, anyway? This has been a fundamental component of the Patriot Act that right wingers so lovingly embraced when it was passed. In 2005 FOX News was championing how this kind of data collection was integral to our counter-terrorism operations. Now they're moaning and whining about how Obama is taking away our rights.

A little humility and self-examination would be in order, methinks.

[ June 07, 2013, 01:25 AM: Message edited by: AI Wessex ]

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seagull
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Too many people here seem to be under the delusion that what we say (or what the courts say) actually makes a difference.

The following argument:
quote:
until we admit that we are actually doing it, you can't sue us for it
is a tautology and no amount of righteous indignation is going to change that at least until they get caught at it.

When they do get caught and that becomes public knowledge it also becomes available to the enemies, criminals and terrorists that these measures are supposed to protect us against. The people at the NSA would be foolish not to play the "state secrets" and "national security" cards even if there is no moral justification for those claims.

I really hope that the people running these taps and collecting this data are not fools because if they are, we have already lost the battle with the enemies, terrorist and criminals - we just don't know it yet.

Having said that, I am concerned about the fact that by the time we are done with those practical considerations - I am not sure how different the NSA and FBI are from the rest of our enemies, terrorists and criminals. I don't trust them much more but I do have a healthy respect for their power. I also hope that in attempting to keep up the pretense that they are "working for us" they will occasionally do something good just to throw us a bone. So if these naive and indignant complaints and court actions are going to make them throw more bones our way, I am all for it.

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AI Wessex
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"I really hope that the people running these taps and collecting this data are not fools because if they are, we have already lost the battle with the enemies, terrorist and criminals - we just don't know it yet."

If there was a scorecard we could check, but sometimes we don't even know which goal we're shooting at or aren't told when the rules change.

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D.W.
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There is nothing wrong our silly telling/reminding others what their government is up to AI. How is partisan motivated grumbling any didn't than partisan motivated acceptance? Glad this particular loss of liberty doesn't inconvenience me yet. Doesnt mean I can't be concerned about the precident or suspicious of those who took it away.
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NobleHunter
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Partisan motivated grumbling contains the implication that things will be different when "our side" is in power. Blaming something on the "Obama regime" implies that Obama's administration is the necessary causal factor in these events.
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Seriati
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quote:
Dude, they've had *everything* for at least a dozen years. It's way past the time to get your knickers in a twist about this relatively superficial aspect of their data collection. You already gave up your rights to the Patriot Act. Arguing over this detail that they've been doing for at least 7 years is really silly.
Al did you ever hear the expression, better late than never? Seriously, you have a chance to reach across party lines on an issue of importance to you to build a majority coalition, and all you can think to do is insult the people joining late? lol, welcome them in and show them more of what you've known all along.
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D.W.
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quote:
Partisan motivated grumbling contains the implication that things will be different when "our side" is in power. Blaming something on the "Obama regime" implies that Obama's administration is the necessary causal factor in these events.
True enough. And for what it's worth I'm sorry for facilitating the implication that this is what G3 was implying. [Smile]
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G3
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quote:
Originally posted by NobleHunter:
Partisan motivated grumbling contains the implication that things will be different when "our side" is in power. Blaming something on the "Obama regime" implies that Obama's administration is the necessary causal factor in these events.

Anyone that thinks things will be different when "our side" is in power should be fully disabused of that notion now. The state (which is separate from government) has the power now and is unlikely to relinquish it if history is any guide.

Blaming the Obama regime for continuing to engage in and massively expand on these activities is totally appropriate, especially given Barry's prior outrage and promises to end it.

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TomDavidson
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quote:
Seriously, you have a chance to reach across party lines on an issue of importance to you to build a majority coalition, and all you can think to do is insult the people joining late?
I have to admit that after twelve years of being insulted, I am petty enough that I would like an apology for being insulted for being right before I'm expected to welcome them to the party.
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