Shock views on monitoring devices, Fourth Amendment
(Tea Party) – If one member of President Obama’s NSA review group charged with recommending surveillance policy gets his way, tracking cars could become a routine procedure in law enforcement.
University of Chicago law professor Geoffrey Stone took issue with a Supreme Court ruling in the case of the Jones GPS Tracking case. Stone took his case to the Stanford University Law Review in an article entitled, “A Reasonableness Approach to Searches After the Jones GPS Tracking Case.”
The case centered on Antoine Jones, a private citizen suspected of drug trafficking. Police had a warrant to attach a GPS to Jones’ car for a limited amount of time but breached that warrant by tracking him for a month and going beyond the geographic boundaries in the warrant. The case went to the Supreme Court which sided with Jones’ attorney who argued that police trespassed on private property—Jones’ car—and conducted an unreasonable search against constraints of the Fourth Amendment.
Justice Stephen Buyer, in his brief, wrote: “[I]f you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.”
Justice Sonia Sotomayer also issued a warning about the government’s unrestrained power to “assemble data” and its “unfettered discretion” to track citizens, which “may alter the relationship between citizen and government in a way that is inimical to democratic society.’”
Looking to other case law Stone, however, defined reasonable “search or seizure” differently. Stated Stone in his writings:
“Some ‘searches,’ however, do not require warrants under existing case law. For instance, the mechanism of court review of new technologies could be similar to that for a Terry stop, the brief detention of a person by police based on reasonable suspicion. For Terry stops, the initial decision about reasonableness is made by law enforcement officials. The role of the courts is to review the reasonableness of the police behavior after the fact.”
Stone made a recommendation that the courts review the reasonableness after the police behavior occurs. If Stone were to have his way, here’s what his plan would look like:
“The reasonableness of procedures for GPS tracking or other searches would be assessed by law enforcement initially. Courts would test that reasonableness only in a concrete case, after surveillance was conducted pursuant to the procedures.” And he continued:
“Effective procedures for a type of surveillance can and should be crafted in advance. Where a prior judicial warrant is not required, ‘reasonableness’ should still be required of police officers at the time of the action, and then tested after the fact by judicial scrutiny. Failure to craft procedures will often not be reasonable, nor will failure to comply with established procedures.”
Stone is among several controversial figures populating Obama’s NSA review panel, a group whose stated purpose, according to Obama, is to “consider how we can maintain the trust of the people [and] how we can make sure that there are absolutely is no abuse.”
Other controversial figures include a former administration official who advocated for government agents to infiltrate chat rooms and online social networks and another panel member, a resigning CIA official, who was pegged in the White House scandal that scrubbed Benghazi talking points.
Obama’s former regulatory czar, Cass Sunstein, is among the experts examining government surveillance programs, leading to questionable confidence in the group.
Sunstein was the proponent of infiltrating chat rooms and social network sites of private citizens—eerily similar to what the NSA has been accused of doing.
Sunstein is also an advocate of clamping down on conspiracy theories. In a 2008 Harvard law paper, entitled, “Conspiracy Theories” he and co-author, Harvard law professor Adrian Vermeule, readily put forth suggestions on what government can do about such theories.:
“(1) Government might ban conspiracy theorizing. (2) Government might impose some kind of tax, financial or otherwise, on those who disseminate such theories.”
In their 30-page paper Sunstein argues the best government is “cognitive infiltration of extremist groups.” He continues on by saying, “We suggest a distinctive tactic for breaking up the hard core of extremists who supply conspiracy theories: cognitive infiltration of extremist groups, whereby government agents or their allies (acting either virtually or in real space, and either openly or anonymously) will undermine the crippled epistemology of believers by planting doubts about the theories and stylized facts that circulate within such groups, thereby introducing beneficial cognitive diversity.”
Sunstein proposes that government agents “might enter chat rooms, online social networks, or even real-space groups and attempt to undermine percolating conspiracy theories by raising doubts about their factual premises, causal logic or implications for political action.”
He even goes so far as to recommend conspiracy theories for covert action. They include:
- “The theory of global warming is a deliberate fraud.”
- “The view that the Central Intelligence Agency was responsible for the assassination of President John F. Kennedy.”
- “The 1996 crash of TWA flight 800 was caused by a U.S. military missile.”
- “The Trilateral Commission is responsible for important movements of the international economy.”
- “That Martin Luther King Jr. was killed by federal agents.”
- “The moon landing was staged and never actually occurred.”
He did concede that “some conspiracy theories, under our definition, have turned out to be true.”
“The Watergate hotel room used by Democratic National Committee was, in fact, bugged by Republican officials, operating at the behest of the White House. In the 1950s,the CIA did, in fact, administer LSD and related drugs under Project MKULTRA, in an effort to investigate the possibility of ‘mind control.’”
Whitewashing the White House talking points
Another controversial figure in this group is recent acting head of the CIA, Michael Morell, who announced his resignation in June. Morell is the key figure in the scandal regarding the scrubbed talking points on Benghazi.
Morell told senators during a briefing that references to terrorism and al-Qaida were removed from the White House talking points on Benghazi in order to “prevent compromising an ongoing criminal investigation.”
In April, a 46-page House Republican report probing the Benghazi attacks detailed how lawmakers were given access to classified emails and communications that prove the talking points were not edited to protect classified information as Morell claimed—but instead to protect the State Department’s reputation.
“Contrary to administration rhetoric, the talking points were not edited to protect classified information,” states the “Interim Progress Report for the Members of the House Republican Conference on the Events Surrounding the Sept. 11, 2012, Terrorist Attacks in Benghazi.”
“Evidence rebuts administration claims that the talking points were modified to protect classified information or to protect an investigation by the Federal Bureau of Investigation (FBI),” the report continues.
The House report charges that the talking points were “deliberately” edited to “protect the State Department.” Their report states: “To protect the State Department, the administration deliberately removed references to al-Qaida-linked groups and previous attacks in Benghazi in the talking points used by [United Nations] Ambassador [Susan] Rice, thereby perpetuating the deliberately misleading and incomplete narrative that the attacks evolved from a demonstration caused by a YouTube video.”
He said she said
The talking points scandal began during closed-door testimony when U.S. intelligence officials were asked point blank whether they altered the talking points on which Susan Rice based her comments about the Benghazi attacks. Rice appeared on five different television programs claiming that the attacks were a response to a “hateful video.”
Other officials in the Obama administration made similar claims.
Anonymous Congressional sources told Reuters that Morell ,along with James Clapper, Director of National Intelligence and Matthew Olsen, Counterterrorism Center Director, each testified that they did not alter the talking points. General David Petraus, former CIA Director, also testified that he did not alter the talking points.
But days later, the CIA reportedly told lawmakers they had changed the wording to delete a reference to al-Qaida. In that meeting were Morell, Rice and Republican Senators John McCain, Lindsey Graham and Kelly Ayotte. All three senators stated Morell told them during the meeting that the FBI removed references to al-Qaida and “did so to prevent compromising ‘an ongoing criminal investigation'” of the attack on the U.S. mission.
Therein lies the contradiction. Morell claims the talking points were changed for reasons of security but that claim is now contradicted by the Republican probe. Further deepening suspicion was the CBS NEWS report that the CIA told the news agency that edits were made “so as not to tip off al-Qaida as to what the U.S. knew, and to protect sources and methods.”
In that same CBS report a source from the Office of the Director for National Intelligence told Margaret Brennan of CBS News that the source’s office made the edits, claiming the edits were part of the “process” since links to al-Qaida were deemed too “tenuous” to make public.
In the meantime, Morell’s office contacted Graham a few hours after their meeting to say that Morell misspoke and it was the CIA not the FBI that scrubbed the al-Qaida references.
“CIA officials contacted us and indicated that Acting Director Morell misspoke in our earlier meeting. The CIA now says that it deleted the al-Qaida references, not the FBI. They were unable to give a reason as to why,” said the senators’ statement.
“This was an honest mistake and it was corrected as soon as it was realized. There is nothing more to this,” reported an intelligence official regarding Morell’s briefing to the senators.
Officials claim that the talking points “were never meant to be definitive and, in fact, noted that the assessment may change. The points clearly reflect the early indications of extremist involvement in a direct result. It wasn’t until after they were used in public that analysts reconciled contradictory information about how the assault began.”
However, it bears repeating and reminding that the intelligence community clearly portrayed the edited White House talking points as a bid to protect classified information.
White House making Morell the sacrificial lamb?
In a New York Times article, Morell’s involvement was further called into question when administration officials were quoted as saying that Morell deleted a reference to CIA warnings of extremist threats in Libya in a draft version of the talking points. State Department officials objected to the references because they feared it would reflect badly on them.
Officials claim Morell acted on his own, not in response to pressure from the State Department. However, the interim House report on Benghazi states that after a White House deputies meeting on September 15, 2012 it was the administration that altered the talking points. They removed references to the likely participation of extremists in the attacks on the consulate. And, that included references to at least five other attacks against foreign interests in Benghazi.
Furthermore, the administration, in a scrub-happy mode, also removed references to the threat of extremists linked to al-Qaida in eastern Libya and Benghazi. The report charges:
“Senior State Department officials requested – and the White House approved – that the details of the threats, specifics of the previous attacks, and previous warnings be removed to insulate the department from criticism that it ignored the threat environment in Benghazi.”
Authors of the report claim they went through email exchanges of the inter-agency process to scrub the talking points. They also wrote that the emails do not reveal a concern regarding protecting classified information.
“Additionally, the bureau itself approved a version of the talking points with significantly more information about the attacks and previous threats than the version that the State Department requested,” the report concluded. “Thus, the claim that the State Department’s edits were made solely to protect that investigation is not credible.”
In what is perhaps one of the most stinging accusations, the report states that when the draft talking points were distributed to the executive branch, it was senior State Department officials that requested the talking points be changed. These officials were attempting to “avoid criticism for ignoring the threat environment in Benghazi.”
“Specifically, State Department emails reveal senior officials had ‘serious concerns’ about the talking points, because members of Congress might attack the State Department for ‘not paying attention to agency warnings’ about the growing threat in Benghazi,” the report claimed.