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[palsch]

When a person argues that he broke one law because otherwise he would have to break a different law - he is still guilty of breaking a law and of his action or inaction that led him into that situation. Somehow that argument still allows Clapper to avoid criminal charges.

Are some laws (like the PATRIOT act and other espionage related ones, secret interpretations of Constitution) considered strictly more important than some other laws (Criminal Code, public interpretations of Constitution)?

I'd personally be OK with charges being brought, although I do have sympathies with him. I don't believe that the situation excuses him from legal consequences any more than Manning or Snowden should be excused prosecution because their leaks may have been in the public interest. It's all civil disobedience, just the reasons for it are somewhat different.

I also don't believe he was using the situation as a legal defence, but rather as a mea culpa in the hope that prosecution wouldn't be sought. It's more a political move than a legal one. And it does make some sense.

Look at it this way. Congress members had access to the information themselves. Hypothetically the person asking Clapper the questions could know the details of the program and the level of classification it had. They could deliberately put Clapper in a position where he either perjures himself or reveals the existence of the program.

This is entirely the fault of the level of classification and secrecy around the program, as well as the way congressional oversight is handled, but that doesn't change the immediate situation he was in.

[GlyphGryph]

The government should NOT, EVER be allowed to lie to the people as Clapper did. It is the worst corruption of a stable democratic tradition possible. If secrets must exist, do not talk about them. At least we will know where the dark areas are, and we can act to decide whether it's worth it to elect representatives to open them up.

This was the operational rule off the government for the last hundred years (they may have lied to the public, but this is the standard we tried for).

Obama's administration has, thanks to his executive orders, completely turned that around. The standard operating procedure of the government is now to explicitly lie to the American people - see his change to the FoI request system. Previously, requests could be denied, citing various concerns. Now? The government is simply allowed to say such records don't exist.

It is a frustrating and negative turn of events, indicative of the seeming shift in whole on the part of the government over the last decade.

Worse - what if they decide it's okay to start lying to themselves? What if they start outright lying to congress as a normal thing? Can we even be called a democracy at that point?

Edit: Of course, then there's this...
http://bbs.boingboing.net/t/members-of-congress-denied-access-to-basic-details-of-nsa-spying/6203/6

[palsch]

The government should NOT, EVER be allowed to lie to the people as Clapper did. It is the worst corruption of a stable democratic tradition possible. If secrets must exist, do not talk about them. At least we will know where the dark areas are, and we can act to decide whether it's worth it to elect representatives to open them up.

It was a catch-22 where a no-comment was as good as a confirmation. I personally don't have a problem with limited misinformation about national security issues (flat out lying about whether a military operation is taking place, say) to the public, although I do think there should still be legal consequences for doing so under oath. I also think that doing so and then accepting those legal consequences may well be the duty of government officials from time to time. This may well have been one of those cases, although more due to excessive classification and insufficient transparency than a genuine national security need.

Anyway, two more articles.

Bruce Ackerman calling for unilateral congressional action to reveal details of the programs.

The U.S. Constitution guarantees that elected representatives "shall not be questioned in any other Place … for any Speech or Debate in either House." In other words, they cannot be prosecuted for reading classified material into the public record -- and it is up to them, and them alone, to decide what is worth talking about.

I'd not considered that angle. As an interesting parliamentary note, the submission of written materials into the record is done through the whole "I ask unanimous consent to revise and extend my remarks" thing. This allows the parliamentarian to go back and insert whatever documents they like. The floor speech is just a placeholder for the actual records. In what is a pretty unique move, recently Gohmert decided to block such revisions during the debate over the farm bill. Not much relation to the thread (although hypothetically someone could pre-emptively block any attempts to insert classified material into the record, short of reading it out in total in a series of floor speeches), just an interesting story that popped into my head.

The other is this look at the XKeyscore program. What is worrying to me is that the Guardian posted a slideshow from 2007, during the era of Bush's warrantless wiretapping program, and suggested that implied anything to do with current practices despite the legislative changes since that time.

But if the slides were drafted in January of 2007, then they pre-date both the Protect America Act (passed in August of 2007), which modified large swaths of the NSA’s warrantless surveillance programs first started under President Bush, and the FISA Amendments Act (passed in July of 2008), which instituted strict limits on how the NSA can collect, and required a specific warrant to intentionally collect, any data on a U.S. citizen. The title slide is marked 2008, but it’s unclear how it was modified, since the classification date would have to be updated if it included new classified data. It is also unclear if the slides were published in the months before or after the passage of the FISA Amendments Act.

In Greenwald’s story, he repeatedly references, and includes tightly cropped screen captures of, another presentation apparently dated December 2012. While the 2007/2008 presentation can be perused to substantiate some of the reporting, many of the strongest claims Greenwald makes in his article are backed up only by small, cropped screen captures of slides that are not posted to the Guardian’s website. There is no way to verify or confirm what he’s reporting.

Combine this with the technical errors in the initial PRISM reporting and I'm getting even more uneasy about the Guardian's reporting on these issues.

[SalmonGod]

From "The Paranoid Style in American politics"

The spokesman, sees the fate of conspiracy in [/size]apocalyptic[/color][/size] terms — he traffics in the birth and death of whole worlds, whole political orders, whole systems of human values. He is always manning the barricades of civilization... he does not see social conflict as something to be mediated and compromised, in the manner of the working politician. Since what is at stake is always a [/size]conflict[/color][/size] between absolute good and absolute evil, what is necessary is not compromise but the will to fight things out to a finish. Since the enemy is thought of as being totally evil and totally unappeasable, he must be totally eliminated — if not from the world, at least from the theatre of operations to which he directs his attention. This demand for total triumph leads to the formulation of hopelessly unrealistic goals, and since these goals are not even remotely attainable, failure constantly heightens the paranoid’s sense of frustration. Even partial success leaves him with the same feeling of powerlessness with which he began, and this in turn only strengthens his awareness of the vast and terrifying quality of the enemy he opposes[/size]

[/u]

So I was thinking about this... and while it makes some sense as a character portrait, it just doesn't seem right to lump paranoia in with absolutism as if they're the same thing.  What this quote is telling me is that if I make the simple observation that the public is frequently lied to in bad faith and that conspiracies have also not been uncommon in American history, and that it only makes sense to be suspicious and critical of authorities as a result, that I am also a person who sees anyone who disagrees with me as evil and will never be satisfied with meaningful reforms.  That's kind of ridiculous and offensive.

[GlyphGryph]

http://arstechnica.com/tech-policy/2013/08/researchers-say-tor-targeted-malware-phoned-home-to-nsa/

So it looks like the NSA have been writing some infectious malware on top of everything else.

[Zangi]

http://arstechnica.com/tech-policy/2013/08/researchers-say-tor-targeted-malware-phoned-home-to-nsa/

So it looks like the NSA have been writing some infectious malware on top of everything else.

Not surprising, considering that they employ hackers and the likes.

[alway]

http://www.nbcnews.com/technology/fbi-hacking-squad-used-domestic-investigations-experts-say-6C10851882
FBI using malware too. Though in their case, they're at least getting warrants to do so.

[palsch]

Bruce Ackerman calling for unilateral congressional action to reveal details of the programs.

A counterargument suggesting this could lead to reduced congressional access to classified information and so even less congressional oversight. Rather congressmembers should go through the existing channels;

What Ackerman overlooks is that both the House and Senate have established procedures for releasing classified information. Wyden, for example, could ask SSCI to disclose information regarding the NSA surveillance program under section 8 of S. Res. 400, which provides that SSCI “may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure.” If SSCI votes for public disclosure, it must then notify and consult with the Senate Majority and Minority Leaders prior to notifying the President of the vote. Once the President has been notified and five days have elapsed, SSCI may release the information to the public unless “the President, personally in writing, notifies the committee that he objects to the disclosure of such information, provides his reasons therefore, and certifies that the threat to the national interest of the United States posed by such disclosure is of such gravity that it outweighs any public interest in the disclosure.” In that case, the Senate itself must vote before disclosure may be made.

Ackerman seems to be suggesting that Wyden or other members circumvent this procedure and unilaterally release classified information to the public. This is a bad idea. If the Senate or House allows one member to do this with impunity, nothing would prevent other members from making classified disclosures on the same or other topics. Eventually someone will release information that damages national security and/or provokes a public backlash, thereby giving the executive branch a justification for restricting congressional access to classified information.

[MorleyDev]

Eventually someone will release information that damages national security and/or provokes a public backlash, thereby giving the executive branch a justification for restricting congressional access to classified information.

...what?

[Baffler]

public backlash

justification for restricting congressional access to classified information.

In what sort of representative government does this make any sense? The scenario he puts forth is one in which an entire branch of government aren't to be trusted with information relevant to their job. I'm not so sure  this is likely to happen, even if Congress does what Ackerman suggests. If all that comes to pass, would the legislature be able to block it? And couldn't the Supreme Court call shenanigans at some point? This is not my strong suit.

[palsch]

It would be an interesting separation of powers debate, but it wouldn't surprise me if it played out the way he said.

There are procedures (which he outlines) for congress releasing classified materials. Releases of classified materials to congress by the executive branch are done with the assumption that those procedures will be followed before anything is released. If people were to routinely ignore those procedures and simply release them into the congressional record (which also seems to be possible, legally speaking) then the assumptions that feed into what is released to congress will change and the amount of material being offered up reduced.

The amount that has to be released is rarely explicit in legislation. Especially given the modern tendency towards vaguely worded laws. But even where releases are mandated I could quite easily see them being reduced or abandoned if congress started leaking like that.

The executive branch could easily argue that releasing more information to congress - with the potential for an oversightless release to the public - would interfere with their ability to operate and so is an unacceptable burden, even if it's the law. The current Supreme Court majority is very executive friendly and I wouldn't be against such reasoning being upheld.

[SalmonGod]

I hate the idea that classification should be upheld to prevent public backlash.  If information would provoke public backlash, then it's almost certainly because it's something against the interests of the public, and they should therefore be made aware of it.  Of course, that's the essence of the whole whistleblower debate, isn't it?

[Mrhappyface]

Well it's more like the public tends to take the news the wrong way and blow it out of proportion. Although that can be remedied by better spokesmen or spin doctors.

[palsch]

I obviously don't know how he meant it in the post, but it's possible to have a public backlash against the fact of a disclosure as much as the content. Or a split backlash with some hailing and some criticising the release. If you had a significant minority (say, the percentage who are solidly against Snowden) believing that a release, say, put troops at risk then you would see an easy justification of reducing congressional access to information by the executive branch.

[Baffler]

What I'm saying though is that I do not approve of giving the executive even further leverage over the legislative , despite how poor a job they might be doing now, and that it is counterproductive to keep them in the dark about national security. This is especially important considering Congress is the group that declares war and sets the budget for these agencies. It is a pretty significant blow to Congressional Oversight as well.