07/02/14 – Elizabeth Goitein – The Scott Horton Show

The military-industrial complex, the disastrous rise of misplaced power...
Hey y'all, Scott Horton here.
I'd like for you to read this book, The War State, by Michael Swanson.
America's always gone to war a lot, though in older times it would disarm for a bit between each one.
But in World War II, the U.S. built a military and intelligence apparatus so large, it ended up reducing the former constitutional government to an almost ceremonial role, and converting our economy into an engine of destruction.
In The War State, Michael Swanson does a great job telling the sordid history of the rise of this national security state, relying on important first-hand source material, but writing for you and me.
Find out how Presidents Truman, Eisenhower, and Kennedy all alternately empowered and fought to control this imperial beast, and how the USA has gotten to where it is today, corrupt, bankrupt, soaked in blood, despised by the world.
The War State, by Michael Swanson.
Available at Amazon.com and at Audible.com.
Or just click the logo in the right-hand margin at ScottHorton.org.
We should take nothing for granted.
All right, you guys.
Welcome back to the show.
I'm Scott Horton.
This is my show, The Scott Horton Show.
And our next guest is Liza Goitein.
And she is the co-director of the Liberty and National Security Program at the Brennan Center for Justice.
Welcome to the show.
How are you doing?
I'm doing great, thanks.
Good, good.
Very happy to have you here on the show.
And I saw this press release that you guys sent out this morning.
I guess, first of all, the bad news headline from AP here, Privacy Board NSA's Internet Monitoring is Legal.
And then you guys sent this thing right out saying, not so fast.
So I guess, could you please take us through their opinion and what's so wrong about it, do you think?
Sure, sure.
So the program in question is a program that allows the government to collect the international phone calls.
Between Americans and people overseas, and their e-mails with people overseas, without a warrant.
As long as the government certifies that it has a foreign intelligence purpose, and that its real interest is in the person who's overseas and not the American.
But now, the board seemed to think that this was okay, because some courts have said, not the Supreme Court, mind you, but some lower courts have said that there is a foreign intelligence exception to the warrant requirement.
But no regular federal court has ever gone so far as to say that a program like this one would qualify for that exception.
These have been much, much narrower cases where the target of the surveillance was a foreign power, or an agent of a foreign power, and there were other limits in place that are just not in place here.
So I think it's a real stretch for the board to conclude that this kind of warrantless surveillance is legal.
All right, now, I interview a guy named Adam Morrow from time to time from Cairo, and I guess, you know, I interview people in other countries pretty often, but he's in Cairo.
And he and I talk about Egyptian politics, that kind of thing.
He's a reporter for Interpress Service.
And, you know, it seems like, well, I guess my question is whether listening to him say smart things, and his analysis of what's going on in Egypt, whether that could count as an intelligence purpose.
I mean, I'll assert to you that if CIA guys or NSA guys are listening to what he says, never mind what they learn about him, all they'll learn about him is that he's smart, and they'll learn all about Egyptian politics in a way that, you know, could sure benefit their understanding.
Why not, right?
So is that a foreign intelligence purpose that they can then keep?
I mean, obviously, I'm putting our conversations on the Internet, so this isn't the best example.
But I'm talking about tapping my phone, keeping my call that they intercept in between me and him.
That's a little bit different than the MP3 later, right?
Right, right.
Well, I mean, I think the statute is very, very broad in terms of what it allows, because it defines foreign intelligence as really any information that is relevant to foreign affairs or the security of the United States.
And, you know, we don't really know how that's defined.
I mean, that's not further defined, so I'm sure that the government could take a very broad view of that.
So we really, I mean, in theory, sure.
I mean, if this person is a non-citizen located overseas, you know, sounds like the content could arguably fall under the definition of foreign intelligence.
As you talk about, you know, Egyptian, you know, state of affairs over there in Egypt.
So, yeah, I mean, in theory, that person could be a target, and that means that your communications with that person are fair game.
Now, under the rules of 1978 in the original Foreign Intelligence Surveillance Act, I think you were saying earlier, I don't know if that's exactly the law you were referring to or how it was, it used to be they would have had to have reason to believe that the reason that I was on the phone with this phone number in Egypt was because somehow they were influencing me to be an agent of a foreign power, or at least the person that I would be on the phone with would be, what, a member of their government?
Something like that would have had to have been the threshold?
How does that work?
Or how did it used to work?
Right, so the threshold is actually higher.
It's not reason to believe it's probable cause.
So in 1978, if the government wanted to...
Even for the FISA court it was probable cause?
Even for the FISA court, the government had to show, if it wanted your communications with someone overseas and it was getting those communications by putting a wiretap here in the United States, then it would have to go to the FISA court and it would have to show probable cause that the target of the surveillance, which would most likely be the person overseas, might be you, was a foreign power or an agent of a foreign power.
And those definitions, too, are pretty broad.
It's not just a foreign government, it's foreign political organizations, organizations under control of the foreign government, terrorist organizations.
But even though it's a broad definition, it's still much, much narrower than the current definition doesn't even count because it's any foreign person overseas as long as the purpose is foreign intelligence.
And now in practice, though, even before September 11th, the FISA court basically gave out blank checks on all these things.
I mean, they didn't give out general warrants like they do now, but they virtually always said yes to the FBI when the FBI or the NSA came and said, whoa, we think this guy's an agent of a foreign power, go right ahead.
We think was the real standard, right?
Yeah, well, so the thing is that whenever courts hear warrant applications in any context, and that's even regular criminal warrant applications, they tend to grant them.
And there's a question about why that's so.
Is it because the government only brings these applications when it knows it has enough evidence?
Is it because the court isn't hearing from another side and so it's going to give deference to the party that's in front of it or it's going to be swayed by the party that's in front of it?
I mean, this is a common feature of these kinds of ex parte warrant-type proceedings is that they go in favor of the government.
But in the regular criminal context, there's usually an opportunity at some point to contest.
I mean, not always, but usually to contest this, to contest the gathering of information because the warrant gathers evidence for a criminal proceeding, and in that criminal proceeding, the defendant can raise a Fourth Amendment objection.
This doesn't happen in the context of FISA orders, surveillance orders for foreign intelligence purposes because the person is never notified that the surveillance even happened unless that person ultimately goes up on criminal charges.
And even then, the notification provisions have been kind of honored in the breach.
Well, you know, I work for AntiWar.com, and as far as they'll admit so far, I wasn't part of it, but they were certainly using their FISA powers to spy on AntiWar.com's founder and head writer, Eric Garrison Justaramondo, and the ACLU is suing now.
That's the first journalistic organization that it could be proven that they were using their FISA powers to target us on the bankrupt and ridiculous theory that somehow AntiWar.com had foreign funding.
It could, after all, so let's go ahead and use our FISA powers to look into whether or not, maybe, kind of thing.
And it only came out in documents that were FOIAed in another case.
It came attached.
So part of what we worry about here is that in cases that involve some kind of international element to them, if the government doesn't have enough evidence or doesn't have probable cause of a crime in order to get a warrant, it can maybe get around the warrant requirement by using FISA or by using, really, the programmatic surveillance.
Now, it's illegal for the government to collect that information with a U.S. person as a target, and that means a citizen or legal resident or a corporation, a U.S. corporation.
So the government isn't supposed to have you in mind when it's picking up communications between you and someone overseas.
But first of all, I don't know how you enforce that.
Second of all, it's pretty clear that the government does have you in mind or does have Americans in mind, because after going into court and getting approval for this program of warrantless surveillance on the grounds that it's not interested in the Americans, only in the foreigners, right?
That's the basis on which it doesn't have to get a warrant.
The government is right now running searches using U.S. person, Americans' identifiers, their names, their phone numbers, their e-mail addresses.
The government plugs those into this data to pull out and review their calls and their e-mails.
And now, is this the corporate store that you're talking about?
Once it's made it through the loophole, it's in the giant warehouse full of data that they can search through on their own?
Actually, no.
So the corporate store relates to the metadata, the telephone records that the government collects.
This is communications.
This is content that the government pulls in.
So it has this whole pile of content that it got without a warrant because it was targeting foreigners.
But it knows the government...
I'm sorry, we've got to hold it right here.
When we get back, everybody, we'll have more with Liza Goytin from the Brennan Center about this privacy board ruling, statement, something.
Anyway, hang tight, just a sec.
Hey, all, Scott here.
First, I want to take a second to thank all the show's listeners, sponsors, and supporters for helping make the show what it is.
I literally couldn't do it without you.
And now I want to tell you about the newest way to help support the show.
Whenever you shop at Amazon.com, stop by ScottHorton.org first.
Just click the Amazon logo on the right side of the page.
That way, the show will get a kickback from Amazon's end of the sale.
It won't cost you an extra cent.
And it's not just books.
Amazon.com sells just about everything in the world except cars, I think.
So whatever you need, they've got it.
Just click the Amazon logo on the right side of the page at ScottHorton.org or go to ScottHorton.org slash Amazon.
All right, you guys, welcome back.
I'm Scott Horton.
This is my show, The Scott Horton Show.
I'm talking with Liza Goytin from the Brennan Center for Justice.
About the NSA here, about the Privacy Board, the Privacy and Civil Liberties Oversight Board.
They're voting to approve their report, which is saying that it's legal for them to search us without a warrant.
And where we left off, our electronic data.
Where we left off before the break, she was correcting a point of fact here.
It's not the corporate store.
That's just the metadata.
Once they've collected your metadata under any pretext of collecting anyone else's and you got caught up in it, now they can search yours, too.
That's a different scandal than this one.
Is this the backdoor search?
There's so much here, I can't keep it all straight either, Liza.
Yes, this is the so-called backdoor search loophole.
And that's what Senator Wyden called it.
And now this is all computer data or this is my voice, too?
It's both.
It's phone calls and emails.
It's whatever is collected under Section 702 of the FISA Amendments Act.
And I'm sorry, you were going to say about the senator there.
Right.
So, I mean, he sounded a warning that this was, I think, even before we even knew what he was sounding a warning about because it was classified information.
So he started out kind of obliquely.
But, you know, this is an end run around the Fourth Amendment because these are communications that the government would have needed a warrant to get if it had come clean in the beginning and said, we actually want to get the information on the American part of the communication.
But instead they say the opposite.
They go and they certify, the government certifies, that it isn't interested in the American side of the conversation because that would be reverse targeting and the government's not supposed to do that.
So how is it consistent to then search through all of the communications that the government pulls in for information about Americans?
Now, but here's one thing about the position of the board here is that I remember when they passed the FISA Amendments Act of 2008 legalizing all of Bush's millions of felony violations of the FISA Act of 1978 that we all knew this.
That was the scandal at the time was, look, here's your hero, Barack Obama, Mr. Civil Rights, Mr. Civil Liberties and peace and everything.
Here he is voting for the FISA Amendments Act that legalizes general warrants in direct violation of the Constitution of the United States.
And Glenn Greenwald wrote about it back then and so did a lot of other people.
And it was as clear as that.
They were legalizing Bush's crimes.
And so how could that be legal?
The Constitution is still the first law of the federal government, right?
Right.
Well, the theory was that, you know, it was it was clearly what Bush was doing was clearly in violation of the Foreign Intelligence Surveillance Act.
And so rather than sort of roll back the abuses, Congress decided to roll back the law to allow the abuses to continue.
The problem is there's also the Constitution, which the Congress is not allowed to roll back.
But this is where things get tricky, because the Supreme Court has never actually said definitively whether there is or is not a foreign intelligence exception to the warrant requirement of the Fourth Amendment.
And if there is one, how broad is it?
What does it look like?
And in the absence of that guidance, you know, the government is sort of taking that wiggle room and running with it.
And it's definitely taken the idea much further than any of the courts of appeals.
The regular courts of appeals have taken it in their ruling.
Right.
And then so.
I guess was there is there some kind of compelling narrative that they put forward to justify this that's even worth kind of recounting and commenting on?
Or they just basically said, you know, we don't want to make the president look that bad.
And so, you know, if you read it, it all kind of hangs together.
It's just a little bit strange because I read the facts.
I mean, one of the things this report does very well is it puts out much more detail on how this program actually operates than we've seen before.
And it really provides a very useful service in that way.
So I'm reading along and learning quite a bit about how the program operates.
And then I read that that same set of facts and I think, wow, we really need some stronger privacy protections.
And somehow the board, you know, looking at the same set of facts just came to a different conclusion.
And, you know, it's possible that the board was swayed by its feelings about the usefulness of this program.
So on the telephone collection program, the board basically said this program isn't very useful.
Now, on this program, the board said, actually, we think it is useful.
I'm a little concerned when I read it, when I really kind of parse what the board was saying, that the board is relying a little too much on, you know, assurances by officials.
And I'm not sure there's quite enough independent evidence that's cited at least to support this claim of how valuable it is.
But I just wonder whether that is what sort of swayed the board.
But, you know, that's not the board's job.
The board's job is to represent the other side of the balance.
Right.
I mean, there's the intelligence agencies are representing the side of the balance that that says that we need to be, you know, primarily concerned with our sort of national security interests.
And this board is supposed to weigh in on the other side with any sort of countervailing privacy and civil liberties interests that Americans have.
And that just didn't happen in the way I thought it would.
Well, now, I think there are two different kind of review board things going on here.
Right.
Is this the same one that had ruled that they were abusing the Patriot Act, Section 215?
This same board actually did say that.
This same board said that the Section 215, and there was another board as well that said that.
But this same board said that the Section 215 bulk collection program was illegal, that it violated the statute, that it wasn't useful, and that it should be stopped.
And that's the one that you're saying, that they also said, and yeah, we don't believe that it's been useful at all.
Whereas in this case, they're saying they they seem to be maybe relying on how useful this is claimed to be.
For some reason, the fact that the claim of 54 attacks being completely debunked and whittled down all the way down to somebody, moneygrammed some money to Somalia or something like that.
That would seem to me like it would cause them to not just take the government's word for it on Section 703 of the other law, I guess.
Yeah, well, it's strange because the report cites these two examples where it was useful.
And then it says, you know, you could make the argument that in these two cases, the government could have gotten the same information with a warrant.
Basically, the government could have had enough evidence to get a warrant.
And so it could have just gotten the information that way.
And that may be true, but there may be other circumstances where that's not true.
Well, why don't you actually cite the circumstances where it's not true?
I mean, if the only concrete examples that you have to cite are examples where it really wasn't sort of uniquely valuable, then to me, that's not strong evidence that the program is is is incredibly valuable.
I mean, I'm not you know, I'm not in a position to say one way or another.
I'm just waiting to see the evidence.
And I haven't seen it yet.
Well, and then, of course, when the whole thing is to justify warrantless searches, it really doesn't matter anyway, because it's a violation of people's rights anyway.
And the worst crimes in America quantifiably would be husbands beating their wives.
So we could put cameras in every, you know, two or three cameras per floor on every in every household in America.
They're cheap enough nowadays.
It could be done for the cost of one or two regime changes overseas somewhere.
And we keep everybody safe.
It's that we don't want to live like that.
And so that's so that's a line they haven't crossed yet anyway.
Right.
Right.
Well, I mean, sure.
And if I knew it was going to keep husbands from from being their wives, it'd be awfully tempting.
But, you know, the Constitution, you don't get to make those sort of you don't get to say, well, but it works really well or well, but it's convenient.
Yeah, there's got to be somewhere because, yeah, there's always a necessity is the argument of tyrant and the creed is slaves.
William Pitt, I think, whoever that is.
Anyway, thank you so much for your time.
You're great.
Thanks so much.
All right.
But that is Liza Goitein.
And she is at the Brennan Center for Justice at New York University School of Law.
Don't worry about things you can't control.
Isn't that what they always say?
But it's about impossible to avoid worrying about what's going on these days.
The government has used the war on guns, the war on drugs and the war on terrorism to tear our Bill of Rights to shreds.
But you can't fight back.
The Tenth Amendment Center has proven it, racking up major victories.
For example, when the U.S. government claimed authority in the NDAA to have the military kidnap and detain Americans without trial, the nullifiers got a law passed in California declaring the state's refusal to ever participate in any such thing.
Their latest project is off now dot org, nullifying the National Security Agency.
They've already gotten model legislation introduced in California, Arizona, Oklahoma, Missouri and Kansas, meant to limit the power of the NSA to spy on Americans in those states.
Don't be fools to wait around for the U.S. Congress or courts to roll back, big brother.
Our best chance is nullification and interposition on the state level.
Go to off now dot org, print out that model legislation and get to work nullifying the NSA.
The hero Edward Snowden has risked everything to give us this chance.
Let's take it.
Off now dot org.
Man, you need some new stickers for the back of your truck.
Scott Horton here for LibertyStickers.com.
Aren't you sick and tired of everyone else being wrong about everything all the time?
Well, now you can tell them all what's right with some stickers from LibertyStickers.com.
At LibertyStickers.com, they're against everything, so you know they're good on your issue, too.
Whether it's the wars, police, state, gun laws, the left and right of the president, LibertyStickers.com has hundreds of choices so you can find just the right words to express your opposition and contempt for those who would violate your rights.
That's LibertyStickers.com.
Everyone else's stickers suck.
Hey, I'm Scott Horton here.
It's always safe to say that one should keep at least some of your savings in precious metals as a hedge against inflation.
If this economy ever does heat back up and the banks start expanding credit, rising prices could make metals a very profitable bet.
Since 1977, Roberts & Roberts Brokerage Inc. has been helping people buy and sell gold, silver, platinum, and palladium, and they do it well.
They're fast, reliable, and trusted for more than 35 years.
And they take bitcoin.
Call Roberts & Roberts at 1-800-874-9760 or stop by rrbi.co.
Hey, I'm Scott Horton here, and I'm so excited about Commodity Discs from CommodityDiscs.com.
They're one-ounce silver pieces with a QR code engraved on the back side.
Scan the code with your phone and get the instant spot price.
Commodity Discs are paving the way forward for the alternative currency community in America and around the world.
The QR code, Commodity Disc.
Technology has now finally made a real free-market silver currency viable.
And anyone who donates $100 or more to The Scott Horton Show at scotthorton.org slash donate gets one free.
That's CommodityDiscs.com.
Commodity Discs.