Back on the Fence!

OK—a fact, a story, and a change of mind (maybe)….

Fact—in 2012, the federal government made 1856 requests for warrants to the FISA judges. And guess how many of those requests were granted?

1856.

Caveat—I haven’t checked this number out; I’m trusting Gail Collins of The New York Times, those fire-eating liberals up there. But if correct, we could save money on the whole FISA thing and buy a rubber stamp, instead.

Story—in 2004, several bombs were detonated in the Madrid subway system. Spain asked the FBI to search its database of fingerprints after a print was found on a detonating device; the FBI complied, and sent back a response: they had a match. A 100% match.

The FBI’s own records would reveal that there were 20 possible matches, but the FBI focused on Brandon Mayfield, a Portland lawyer who had served in the military (which was, ironically, why his prints were in the database) and who had converted to Islam.

Strange things began happening in the Mayfield home—doors were locked that hadn’t been, a computer screen was half unscrewed, and the computer itself had a hard drive half sticking out. The family became convinced that somebody had been entering the house.

Nor was it just Mayfield—remember those 19 other possible matches? Well, the same thing was going on with them. Oh, and by the way, Spain, which had never been convinced about the fingerprint anyway, now had a suspect a bit more credible than a guy raised in Kansas. It was an Algerian man named Ouhnane Daoud.

In April, Spain notified the FBI that they believed Mayfield’s print was a negative match. Amazingly, the FBI keeps right at it, and on May 6, 2004, the FBI arrested Mayfield. They then turned around and leaked the news to the media, which was how the family found out where poppa was.

Mayfield sat uncharged in prison for 20 days; it took Spain announcing the name of the suspect and international attention before Mayfield was released.

Ready for the punch line?

Mayfield had not left American soil for eleven years prior to the explosions in Spain.

The FBI conducted an internal review and found—hang very tight to your seat here—that they had not misused the PATRIOT Act. I can feel the relief of all you readers out there; relax—have a beer.

Mayfield—well, there’s always somebody to spoil the party, isn’t there—wasn’t satisfied. Explicably, he sued; just as explicably, he won, at least partially. Here’s Wikipedia on the subject:

On November 29, 2006, the U.S. government settled part of the lawsuit with Mayfield for a reported $2 million. The government issued a formal apology to Mayfield as part of the settlement. The settlement allowed Mayfield to pursue a legal challenge against the Patriot Act.[7] The FBI was also cleared of wrongdoing in an earlier internal investigation.

On September 26, 2007, two provisions of the U.S. Patriot Act were declared unconstitutional. Finding in Mayfield's favor, Judge Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, "now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment," which violates the Constitution of the United States.[8] The Federal government appealed that ruling, and Mayfield's attorney, Elden Rosenthal, argued in front of the Ninth Circuit court on February 5, 2009.[1] The ruling was overturned in December 2009.

It seems that Mayfield had committed two crimes: he had served in the military (which got his prints into the FBI database) and he had converted to Islam (which was a red flag for the FBI).

You could argue that it was an isolated case, but I’d return that 19 other people were also being investigated. But what’s completely troubling is the mindset of the FBI—they are determined, despite all evidence, to get this guy, to nail him for a crime he didn’t commit on foreign soil.

I wrote a couple of days ago about Thomas Friedman and his argument—the time to start a database is not after you have a suspect but before. Persuasive—I bought in briefly. But now I’m wondering—if you want my vote, there have got to be better safeguards against abuse than those now in place. 

Sorry, Tom!

1984 Is Not Behind Us

There’s something screwy about it. The United States government has collected this enormous amount of information about whom we’ve called, how long we’ve talked; it also has connections to the largest servers in the country, and so it knows—minimally—who we’ve emailed. And if the government has access to servers, it seems logical to me that it can also monitor Internet use.

We cannot have, says Obama, 100% safety and 100% security: there has to be a trade-off. And he says that these programs have thwarted terrorist attacks in the past. What he doesn’t say is what attacks, and how the information helped identify the threat.

And according to at least one guy, Shane Harris, this kind of data mining is really only useful when you have a specific lead. And where do those leads come from? Here’s Harris on the subject:

Those leads tend to come from more pedestrian investigative techniques, such as interviews and interrogations of detainees, or follow-ups on lists of phone numbers or e-mail addresses found in terrorists' laptops. That shoe-leather detective work is how the United States has tracked down so many terrorists. In fact, it's exactly how we found Osama bin Laden.

So we have an enormous pile of data, and yet we’re still relying on tips, interrogations, or information found on terrorists’ laptops. Why collect all this information? Couldn’t the government get a court order when needed?

It’s also a little screwy that the government, with all this data on its hands, was unable to prevent a couple Boston kids from making bombs, killing several people, maiming scores more, and shutting down a major American city for a day. The Russians had told the FBI—watch out for this guy. That said, why wasn’t the government looking at all Tamerlan Tsarnaev’s Internet usage, which presumably is where he was “radicalized” and / or where he learned to make the bombs?

I also understand that the last thing Obama wants is to have a terrorist attack on his watch. And God knows, I would have continued the program, too—what president wouldn’t? But the real question is whether a president, with the help of Congress and the Supreme Court, should be making these decisions.

And let’s be honest, if given the power, the government will use it. But is it legal, collecting all this data? Well, here’s what James Sensenbrenner wrote in the Guardian last Saturday:

In his press conference on Friday, President Obama described the massive collection of phone and digital records as "two programs that were originally authorized by Congress, have been repeatedly authorized by Congress". But Congress has never specifically authorized these programs, and the Patriot Act was never intended to allow the daily spying the Obama administration is conducting.

To obtain a business records order like the one the administration obtained, the Patriot Act requires the government to prove to a special federal court, known as a Fisa court, that it is complying with specific guidelines set by the attorney general and that the information sought is relevant to an authorized investigation. Intentionally targeting US citizens is prohibited.

The point should also be made—how do you get the genie back in the bottle? We have invested billions to obtain the technology to spy on our citizens. Is it likely that the government will walk away and leave it rusting there?

We went nutso after September 11. But actually, our freedoms had been eroding for years before. Am I the only person in the US who thinks that being asked to pee into a plastic cup in order to get a job stocking cereal in Wal-Mart is an unjustified invasion of privacy? And why is it that I am photographed countless times a day, sometimes without my knowledge? Since when did walking out onto the street mean implied consent?

“If you’re not doing anything wrong,” goes the line. Yeah? What if a major al-Qaeda figure dials my phone number by mistake? What if he emails the wrong person? Or what if my vengeful ex-wife, working away for our homeland security, decides to tap into the system, read my emails, and then start stalking my girlfriend?

Even if I trust this president not to misuse the information, will I trust the next one? Oh, and by the way, what if I write the sentence, “It is completely untrue and without basis that I want to kill Obama?” Will that ring alarms bells for Homeland Security? Am I to expect a knock on the door shortly?

The guy who leaked the information is 29, and though making a pot of money, wasn’t particularly high up in the hierarchy. He’s intelligent and speaks well; I believe him when he says that his intention was to force the issue onto the national stage.

Guess what.

He has.