Listen up

We are nearing the end of a long, busy, but pretty successful week. I think that I need to do some spygate housekeeping before we put this sucker to bed.

After several weeks of denials, the Guardian spilled the beans, and now the NSA says it did collect personal data and communications domestically from Americans, for two years under Obama, but they stopped the program in 2011 and purged all the data. Perhaps it is the least untruthful statement they could make, pardon me if I still harbor a doubt or two.

The program, described in a top secret draft report from the NSA inspector general, described the efforts of then-NSA Director Gen. Mike Hayden to fill gaps in intelligence gathering after the Sept. 11, 2001, attacks. One NSA officer quoted in the report described “NSA standing at the U.S. border looking outward for foreign threats” and “the FBI looking within the United States for domestic threats. But no one was looking at the foreign threats coming into the United States. That was the huge gap that NSA wanted to cover.”

We even have a couple new NSA code name monikers; evilolive and shell trumpet.

The NSA called it the "One-End Foreign (1EF) solution". It intended the program, codenamed EvilOlive, for "broadening the scope" of what it is able to collect. It relied, legally, on "FAA Authority", a reference to the 2008 Fisa Amendments Act that relaxed surveillance restrictions.
This new system, SSO stated in December, enables vastly increased collection by the NSA of internet traffic. "The 1EF solution is allowing more than 75% of the traffic to pass through the filter," the SSO December document reads. "This milestone not only opened the aperture of the access but allowed the possibility for more traffic to be identified, selected and forwarded to NSA repositories."
It continued: "After the EvilOlive deployment, traffic has literally doubled."
The scale of the NSA's metadata collection is highlighted by references in the documents to another NSA program, codenamed ShellTrumpet.
On December 31, 2012, an SSO official wrote that ShellTrumpet had just "processed its One Trillionth metadata record".
It is not clear how much of this collection concerns foreigners' online records and how much concerns those of Americans. Also unclear is the claimed legal authority for this collection.

Will be interesting to see what else shakes out in the Guardian? Like the parents tell an errant child, we should demand that the administration let us know what is really going on before we read about it in an obscure British newspaper, it usually goes easier on you that way.

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I saw another interesting story the other day, something we have touched on of late. Protesters in Washington are being classified as domestic terrorists. From the New York Times, Defendant added to Protesters Spying Suit.

An investigator working with an intelligence-gathering office in Washington State placed the names and photos of antiwar protest organizers into a domestic terrorism file, according to an amended complaint filed on Monday with the Federal District Court in Tacoma. The investigator, Chris Adamson, was described by plaintiffs as a member of the Pierce County Sheriff’s Department and a director of regional intelligence groups with the Washington Joint Analytical Center, which became the Washington State Fusion Center, one of dozens of counterterrorism offices financed by the Department of Homeland Security. Mr. Adamson helped coordinate Mr. Towery’s spying efforts and listed at least four protesters in a “national domestic terrorist database with pictures, and identifying personal information along with false claims alleging a propensity for violence,” the lawsuit said. Lawrence A. Hildes, a lawyer for the plaintiffs, said the database was controlled by the Washington State Patrol.
“They have taken upon themselves to say, ‘We don’t like this person, therefore he’s a domestic terrorist,’ ” Mr. Hildes said. “It’s not only illegal — it’s absolutely chilling.”

That of course is one of the dangers of all this domestic surveillance business, when the telescope peers within, if you are the authority, it is really quite easy and tempting to target people who engage in legal dissent or just plain don't agree with you.

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I can't put my finger on any source material but I seem to recall the administration deciding a few years ago that people could be prosecuted for putting pieces of intelligence together that by themselves were legal to divulge. I believe that this is based on something called mosaic theory. Not hard to imagine these type of laws being utilized to squash legitimate dissent, is it?

Michael P. Goodwin (2010 winter). "A National Security Puzzle: Mosaic Theory and the First Amendment Right of Access in the Federal Courts". Hastings Communications and Entertainment Law Journal. Retrieved 2012-04-07. "The tension between public information and secrecy is even more pronounced when the government justifies secrecy based on "mosaic theory" - the idea that even  apparently innocuous information could be harmful if pieced together by a knowledgeable observer. Mosaic theory has had a profound impact on Freedom of Information Act ("FOIA") litigation. As terrorism-related cases play out in federal civil and criminal litigation, mosaic theory has the potential to affect First Amendment access jurisprudence as well."
 Benjamin Wittes"The Emerging Law of Detention 2.0: The Guantánamo Habeas Cases as Lawmaking -- Chapter 8 – Mosaic Theory, Conditional Probability, and the Totality of the Evidence". Brookings Institute. Retrieved 2012-04-07. "Disparate items of information, though individually of limited or no utility to their possessor, can take on added significance when combined with other items of information. Combining the items illuminates their interrelationships and breeds analytic synergies, so that the resulting mosaic of information is worth more than the sum of its parts.

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Today a lawyer for the conservative Pacific Legal Foundation, Harold Johnson, was bemoaning yesterday's 5-4 SCOTUS decision which was contrary to the apparent will of the people of California as expressed in Proposition 8.

Whether one opposes or supports Proposition 8, it's disturbing that the U.S. Supreme Court has seriously undercut California's venerable institutions of direct democracy," Johnson said. "In essence, this ruling lets elected officials pull the plug on duly enacted initiatives simply by refusing to defend them against federal lawsuits." 

An interesting question, Mr. Johnson. I have another one for you. Where were you when we said the same things about the subversion of the people's will regarding Propositions 215 and 420 decriminalizing medical marijuana? Does it merely have to do with whose oxen are getting gored?