The “techie” side of “Getting It Right”

The following posting is intended as part of the background information for a forthcoming Get FISA Right chat on the technological issues in “getting FISA right” or more generally balancing needed foreign intelligence gathering with the rights reserved and protected in the Constitution. We eagerly seek your comments here and your participation in the chat. Please post as comments here not only critiques of this posting, but also any ideas regarding who should participate in such a discussion, when we should hold it and any of the ideas that should be discussed.

We will also discuss the logistics of the chat at our next regular organization conference call or two Please join us.

— Jim Burrows

Introduction

One of the knottiest problems in “getting FISA right” is the question of precisely how to insure that our Constitutionally guaranteed rights are protected while any email is being spied upon. It’s a purely technical problem in one sense, but one that has huge repercussions in the Constitutional and political areas. As a dedicated nerd and and civil libertarian, let me see if I can lay it out clearly.

The Goals

In US legal theory, our rights are inherent in us as human beings. We are “endowed by our Creator” with them, as the Declaration of Independence says. They are not granted by a King or a piece of paper. Our Constitution is not a grant of rights to the people. It is a grant of power to the government. It lays out what constitutes that government, what it can legitimately do. It is very specific about what what the government may not do in the area of surveillance. It says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This means that the explicit search warrants based on probable cause and sworn testimony must be used for:

  • Any surveillance by the government within the US
  • Any surveillance by the US government upon “US persons” anywhere in the world.

On the other hand it is relatively well accepted that we allow the government to spy on the nation’s foreign enemies, and that the US courts need not issue warrants for spying on foreigners outside the US.

Last year’s FISA amendment clearly sought to bring the law into line with these principles regarding warrantless surveillance of foreigners in foreign places, US court warrants on US persons within the US and FISA Court warrants in the gray zone between. It is highly debatable whether it has succeeded, but these are clearly the goals.

The Technicalities

The government’s authority and responsibilities in the area of surveillance, search and seizure depend upon identifying “US persons” (US citizens and resident aliens) and on identifying where people are while being spied upon (within the US jurisdiction or without). But how do you identify such people and their location when dealing with email? The following diagrams and discussion will attempt to summarize the issues involved. Be warned: they are both gross over-simplifications and still rather complex.

First, let us consider three people and a handful of the computer process (both in terms of hardware and software) involved in someone spying on an email exchange.

Sender->Mail Client->Mail Server->Internet->Mail Server->Mail Client->Recipient

The sender composes an email in some sort of mail client. This can either be a mail program such as Outlook, Thunderbird, or Apple’s Mail.app on the user’s own computer (or cell phone or other device), or a web application running on a server such as the GMail interface running at Google. The mail client packages the email in the electronic equivalent of an envelope and transmits it to a mail server which may be the same server used by the recipient, but which is more likely to be a different one which passes it on to the recipients server either directly or through one or more intermediaries. Eventually, the recipient’s mail client program fetches the mail from the recipients’s server and the recipient reads it. The recipient’s mail client, like the sender’s can be on the user’s own computer or some remote server.

Diagram showing TCP/IP packet(s) containing and SMTP Message consisting of a Header and BodyMessages are transmitted to the recipient’s mail server by mail clients and intermediate mail servers using a protocol called SMTP (Simple Mail Transport Protocol), which is layered on top of the TCP/IP protocols that power the internet. At each level of the “stack” of protocols, the messages are broken into some form of source address, destination address and message content. In TCP/IP, the addresses consist of a set of four numbers, something like “32.167.111.84“. In SMTP, the addresses are the the familiar email address format such as “John.Doe@XYZ.com”

Each of these forms of address carries with it some implication as to the identity and location of the person or the machine named. Yet, none of them is entirely reliable. Suppose, for instance, that we have an email addressed as follows:

From: Mohamed.Atta@alQaeda.org
To:   FISAexample@gmx.co.uk
Subj: Next Month’s meeting

A quick glance suggests that it is being sent by a member of a group of interest to someone in the UK. Further, it is rather easy to find out that the domain name “alQaeda.org” is registered in South Korea, and “gmx.co.uk” is registered in the UK to a company, GMX AG, whose headquarters are in Munich, Germany. Unfortunately, as it turns out, “FISAexample@gmx.co.uk” is registered to a US citizen, namely me. It is one of several email addresses that I have in the UK and Germany. I have family in the UK and have been doing substantial genealogical research in Germany. I didn’t want to attract a lot of spam to any of those addresses, so I created this one for this article.

The IP addresses used in the actual packets that transport the email around the internet are not that much more useful in determining either identity or location. To illustrate, suppose our spy has managed to tap the cloud in figure #1. They might see an SMTP packet that looks like this:

TCP/IP Packet(s)

Source: 74.125.92.27
Destination: 213.165.64.100

SMTP Message

Received: by qw-out-2122.google.com for <FISAexample@gmx.co.uk>; …
Received: by 10.224.89.80; …
Received: from 173.48.201.218 by mx.google.com; …
Subject: GMail to GMX example
From: FISAexample@gmail.com
To: FISAexample@GMX.co.uk

In this example I’ve shown not only the To and From fields, but also, in abbreviated form, some of the “Received” fields. These are basically the equivalent of the postmark in electronic mail, mail servers are supposed to add them as they pass the mail along its route from sender to recipient. Not all servers do, and as a you may have read with regard to spam and “phishing” attacks, forged ones may be added by badly behaved programs. Nonetheless, they do offer some indication of how the mail has moved through the network.

The Source and Destination addresses show that the packet is being sent from 74.125.92.27, a server at Google, to 213.165.64.100, a server at GMX. The Received headers show that the Google server got it from another Google server using the private IP address 10.224.89.80, who in turn got it from 173.48.201.218, a machine using an IP address allocated to it by a DHCP server at Verizon. In this case, that machine is a router between my mail client running on my Mac and the mail server at Google.

A sufficiently well informed filtering agent could perhaps associate the Verizon address with its various DNS aliases and dynamic DNS addresses and the name I used in creating them with the name I gave when I created one or both of the email accounts, and by that means infer that I was at home at the time that the email was sent. However, the mail could have been queued earlier or sent by someone else in my household. Knowing for sure that the sender or the recipient is me and that I was in the US and not the UK at the time the email was sent is very difficult, even though I used my own name for all of the various registrations.

The Implications

According to the FISA act as amended in 2008, email and other electronic surveillance must be targeted at non-US persons outside the US, or must have a warrant. In somewhat greater detail, the following rules apply. The parenthetical notes are the section numbers from the US Code excerpts at the bottom of this article.

  1. Surveillance may target persons outside the US (a), but not people known to be in the US (b.1), or US persons reasonably believed to be outside the US (b.3), or communications involving only people known to be in the US (b.4), and may not be used to indirectly target people believed to be in the US (b.2), nor violate the Fourth Amendment (b.5).
  2. Further, the targeting procedures must be designed to insure that only persons believed to be outside the US are targeted (d.1.A) and to prevent the intentional targeting of communications involving only people known to be in the US (d.1.B)
  3. Finally, there must be procedures to minimize the acquisition and retention and prevent the dissemination of private information about US persons without their consent, and to guarantee that the identities of uninvolved US persons not be revealed when information is disseminated.

The Law

The key passages in defining what traffic can be targeted are as follows. The full text of the 2008 amendment to the FISA act from which these were taken can be found at depublican.org.

  1. […] the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.
  2. Limitations- An acquisition authorized under subsection (a)
    1. may not intentionally target any person known at the time of acquisition to be located in the United States;
    2. may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;
    3. may not intentionally target a United States person reasonably believed to be located outside the United States;
    4. may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and
    5. shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.
  3. […]
  4. Targeting Procedures-
    1. REQUIREMENT TO ADOPT- The Attorney General, in consultation with the Director of National Intelligence, shall adopt targeting procedures that are reasonably designed to
      1. ensure that any acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and
      2. prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.
    2. […]
  5. Minimization Procedures-
    1. REQUIREMENT TO ADOPT- The Attorney General, in consultation with the Director of National Intelligence, shall adopt minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, for acquisitions authorized under subsection (a).
    2. […]

The “section 101(h)” referred to above is as follows:

  1. “Minimization procedures”, with respect to electronic surveillance, means—
    1. specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
    2. procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;
    3. notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
    4. notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

The law, then, does make serious attempts to insure that the principles stated above are followed. The surveillance allowed here is supposed to be targeted at non-US persons outside the US. US persons and anyone in the US is supposed to have their rights protected, and failure to do so is a crime as well as a violation of Constitutionally protected rights.

That’s what is supposed to happen. But, exactly how is that to be implemented, given the technicalities listed above? Aye, there’s the rub. What slips may there be ‘twixt cup and lip? How is a computer program to know that an email message being delivered between two specific IP addresses with a given set of sender and recipient email addresses represents Constitutionally protected communication or the target of legitimate surveillance? If it spreads its net too wide, who has committed the crime? Was the error intentional? Or was it just a bug? Is being a bug a mitigating circumstance? Is an overzealous program that was “just obeying orders” innocent? Or, regardless of whether it was a bug or intentional, is it a crime?

The law as seen here is very clear about what the Attorney General and the Director of National Intelligence must do. It specifies the reviews to be conducted by them, the FISA Court, the Intelligence and Judiciary Committees, and even the agency heads. However, as one gets closer to the actual technology of spying, it becomes less and less clear.

Recent Revelations

It should not be surprising, then, that word has begun to leak out that the first NSA review shows that the targeting and minimization procedures have failed to an unacceptable degree. The first of the semi-annual reviews shows, we are told by reliable sources, that surveillance has been too broadly targeted and the abrogation of rights has been insufficiently minimized. Please note tat the NSA themselves are finding this. Their own review, being conducted in keeping with the law, and not some outside agency, is showing that there is a problem.

In a sense, this means that the law is working. An attempt has been made to implement the law, and to monitor the success of the targeting and minimization procedures. Problems are being found and reported. Presumably attempts will be made to correct these problems. But in just as true a sense, it means that the law has failed, at least this first test. The NSA has proven unable (in the first round) to carry out its mission and protect the rights of US citizens. They have violated the Constitution and quite probably committed a crime. That they were trying to avoid that, but failed makes it all that much worse. By all accounts the folk at NSA are highly competent, and they are failing to follow rules that they knew.

And so, here we are: face to face with a snarly, nasty technical problem facing the question of how to, or even if it is possible to create software procedures that implement the current law, or the Constitutional requirements and principles upon which that law is based. What, exactly, in the precise terms that computers and technology require, does it mean to “get FISA right”?

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7 Responses to The “techie” side of “Getting It Right”

  1. The ‘technicalities’ are important, but are they not also a forest of details in which we may get lost?

    At the end of the day, we are tasking our Government with the charge to defend our Republic against all enemies, foreign and domestic. Email may be one form our enemies choose to use for whatever plot they might be developing – but it is still just communication between enemies that is of interest to us. And with that in mind, perhaps we need to return to the first step and assess our initial decisions; a misstep at the start can lead us down the wrong path in the end – which is the problem we are here to address, no?

    As you rightly point out, our Constitution seeks to address this thorny issue of surveillance.

    “It says:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    And you are right about what this has meant in practice:

    “This means that the explicit search warrants based on probable cause and sworn testimony must be used for:

    – Any surveillance by the government within the US
    – Any surveillance by the US government upon “US persons” anywhere in the world.

    On the other hand it is relatively well accepted that we allow the government to spy on the nation’s foreign enemies, and that the US courts need not issue warrants for spying on foreigners outside the US.”

    Is not our problem found right here, in these words: “well-accepted that we allow the government to spy on the nation’s foreign enemies and that the US courts need not issue warrants for spying on foreigners outside of the US”?

    Please note: I am not arguing that this is some new practice, or that this is some change in how the law was applied in the past. Rather, I am arguing that it is because ‘this is how its always been done’, that has led us into this hornets nest of an issue. In the days and nights when our Republic was founded, long distance communication was limited to mail delivery. Approaches that worked well then – assumptions that sufficed at that time – are now foundering on the volume and variety of long distance communication options available today. Additionally – and even more important than the varied communication platforms – our world is more interconnected at an interpersonal level across all strata of our society. The transformations that our world has undergone – no doubt abetted by our efforts to develop new (and hopefully, better) tools for communication – must also be accompanied by transformations in our understanding of our Laws, especially those we have codified into our Constitution.

    So when previously, we have held that the Fourth Amendment only applied to US-persons, wherever in the world they might be, isn’t the better option to define the scale and scope of those Constitutional protections as universal verities? When we say:

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    We can actually implement that in a world of email and text messages, can we not?

    Your example of Sender and Recipient: is not the thorny issue of whether or not to get a warrant resolved by always getting a warrant? In this scenario, the Government (represented in your example in the form of the Spy) has a reason behind his or her desire to intercept the communication of one or both: Sender and Recipient; the Spy – presumably an Agent-member of the Executive branch – operates under a set of rules codified into law by our Legislators, one of which requires him or her to present that rationale to a member of our Judiciary, as a request for a warrant to intercept and search the communications sent from/to the aforementioned Sender and Recipient.

    Why is this not the better approach? Rather than seek for exceptions to the rules, why not attempt to apply the rule more broadly? Our Republic was founded under the principle of balancing Federal authority amongst three separate, but equal branches of government. What we have today is an Executive that frequently says to the other two: “Trust me”. This should be abhorrent to us, as we know historically that this is what the Executive always says (in truth – it’s what the Legislature and the Judicial powers always say too).

    We need to force our Legislators to codify the rules of the road into laws, such that search warrants are always required for the interception of communications; we need to force our Judges to develop processes based upon these laws whereby they can support the volume and velocity of these requests; and we need to force our Executives to faithfully conduct themselves according to these laws, under the guidance of our Judges and the supervision of our Legislators.

  2. Jim Burrows says:

    Thank you. When I first started to write about FISA in July of last year (see http://www.dailykos.com/storyonly/2008/7/20/554381/-I-think-I-understand-the-FISA-bill.-Do-I ), the first two people I showed my article to before posting it both took a very similar approach and it is one for which I have a great deal of respect. Both of them basically said that if we believe as the Declaration of Independence says, that all men are created equal and are endowed with inalienable rights, then the Fourth Amendment should apply to all people in the world, not only to US persons and not only within our borders.

    There are several practical problems with this approach, all of them of a practical or pragmatic nature, but in terms of principle it is both entirely consistent and courageous. This last is especially important in this day and age, when cowardice seems to rule. We live in a country that exists due to the courage of men like Isaac Davis, who stood his ground in Concord in 1775 despite believing that he had seen an omen that he would die in the effort, and men like Nathan Hale and Patrick Henry, who not only said things like, “I only regret that I have but one life to give for my country” and “Give me Liberty or give me death!” but lived by those words. The fear and trembling that we allow a few rag-tag religious fanatics to induce in us is disgusting. The neocon-led reaction of the last 8 years has been nothing short of panic.

    Still, despite my respect for the principles, integrity and courage of the position that the 4th amendment should apply to all 6 plus billion denizens of the planet, there are those pesky practical difficulties.

    First, there is the very real question of the disadvantage that it puts us in a world that is quite dangerous. If we tell our spies that they need to have court orders to spy on our enemies overseas, that we cannot spy on our very real enemies, then it puts us at a serious disadvantage. Would we have fared as well against the Nazis and Fascists, the Soviets and so forth had we said our spies needed court orders to intercept their communications? It’s a real concern even if similar fears are used to justify the most cowardly abandonment of principles and law that we have seen in our history. If we are going to take that risk we at the very least have to be very clear that it is there and real.

    Second, there is the problem of actually getting our intelligence and military communities to go along with it. Understand that in thousands of years of history no nation ever has so tied the hands of the men and women who sought to protect it. Telling our spies and our troops that the enemy has rights and regardless of how intent upon our destruction they may be we must follow certain legalistic procedures is like to be on the one hand demoralizing and on the other hand ignored. Personally, i think that the demoralizing can be overcome. This country does have a proud history of courage and taking unprecedented steps. It was in fact conceived in liberty and dedicated to an ethical proposition, as was famously pointed out.

    Much more serious is the problem that such a law if we established it would be ignored. As we should have learned with Prohibition and any number of other laws that are broadly flouted, getting people into the habit of breaking or ignoring the law leads people losing respect for the law and deprives the law of its greatest power, the compliance of the vast majority of the population. Teaching our soldiers and spies contempt for the law is very very dangerous.

    But beyond the practical risks and dangers of trying to embody the universality of rights in our legal system there is the sheer logistical difficulty of it. What court do we give jurisdiction over actions that are outside the jurisdiction of our Constitution, laws and courts? I suppose we could simply create a new court, a federal “district” of “the rest of the world”, but that court would differ from the other US courts in that the only issues it would ever hear are requests for warrants for foreign spying. There are no other issues because their jurisdiction is places where are laws have no jurisdiction. And the fact that they exist for no other purpose would disconnect them from the rest of US law. They would operate independently, with different principles and precedents. They would, in short, be a law unto themselves, and that is problematic. our whole legal system works because it is based on precedent, on the accumulated wisdom of hundreds of years of decisions and refined reasoning. This is at the heart of what makes the US a progressive country, a leader at the forefront of world progress. It is hard to see how you make that work in a court that is so detached from the rest of our legal history, tradition and practice.

    Still, all of these objections are “mere practicalities” and must be weighed against or great principles, our traditions and the courage of our convictions. We will not excel if we do not strive. I welcome and encourage this line of questioning and reasoning, even if in this and my other work on these issues I deal solely with the practical issues.

    Thank you.

  3. Let me state upfront that I acknowledge my late arrival to the party. I most certainly do not want to derail the evident progress that has been made, which – on the whole – I find quite agreeable. It is my nature, however, to be disagreeable.

    If we are in agreement on the principle, then all of the rest is merely a process question and I have spent enough years as a consultant to know that change is only bounded by resources, like time, money and people. On an effort like this – designing the processes and procedures by which our government might conduct needed surveillance – we know that this will be an ongoing question for the life of the Republic. And it should be. Furthermore, we know that no entity has money to devote to answer this question, quite like the federal government. Finally, we know that as a nation we produce oodles more attorneys than we currently know what to do with and pulling some of them away from important injury cases to answer questions that tie directly to the founding principles of our Republic, well, that has to be a good thing.

    So we agree on the principle, we know we have or can find the people: this means we must figure out the process and what tools we might use to put these principles in practice. Let’s restate the principle here:

    1. We’re kinda happy with the Fourth Amendment and we don’t think it needs changing.

    Now, lets examine the practicalities of attempting to realize this goal in practice. I would argue that their is no evidence to support the notion that court orders hamper surveillance in any way. Every operation – however that term may be defined – needs the approval of someone; why must including a representative of the Judicial branch in that approval even extend the time it takes to grant the approval, much less add any additional burden on the operative? We are talking about defining a role for a member of the Judiciary – not establishing a rule that everything must go before the FISA court. Not that a mandate to go before the FISA court would necessarily be a bad decision. This court rarely rejects a warrant request and by rarely I mean at the level of fractions of 1% of all requests are rejected. And as the law mandates that these requests for warrants can be ex post facto, surveillance can hardly be said to be hampered. In a sense, what we want here is to make sure all of the ‘i’s are dotted and all of the ‘t’s crossed. We want to put in place a process, through which we can ensure that if something untoward is happening, we can stop it – quickly. The goal is not to burden the surveillance process with delay. Think of how companies authorize mid-level managers to do purchase orders, but they limit their authority to $50,000 or $100,000, in order to prevent someone from cleaning out the bank account.

    With a lightweight process in place, resistance from the intelligence community should be minimized and once it has been in practice and the results of it made clear, then that resistance will fade. I want to keep emphasizing that this is a judicial review – not a congressional one – and so it will, presumably, be that much more immune to the politicization process.

    As far as the law being ignored, it seems that this would not be an issue comparable to Prohibition, because nothing is being banned here. Rather, it seems like this is a process that will be welcomed by the Executive, as it gives them a chance to say, “hey – why are you looking at me? It was those folks over in Judiciary who approved all of this!” And it is that knowledge that they will be placed into the fall guy scenario, that will urge the Judiciary to not get too cozy with the Executive. Also, knowing that their reporting responsibility goes up through the Judiciary instead of the Executive, frees them from feeling like an interloper. While an Inspector General can be walked around or thwarted by an Executive, to whom he or she ultimately reports, the end of the line for this Judiciary role is the Chief Justice of the US Supreme Court, someone who can stand in equal stature to a President and several weight classes above a Vice President.

    With respect to the logistical issues of where this court operates, this is the beauty of this approach. For operations in the US or US Territories, we already have the FISA Court and this role can be filled by a number of people, each of whom report to a specific FISA Court Judge. And once we have the model up and operational, we can make a similar proposal for the introduction of a new court (and the related judges/roles) at the international level. This places us back on the path to viewing law as universal, as opposed to something that exists solely here within the US. Setting aside the notion of one world government – which is merely a Trojan Horse, trotted out by the foes of limits on Executive authority – encouraging other nations to adopt our procedures expands our influence and reduces the available pool of individuals who see us as “the Other”. Humans inherently distrust “the Other” and we feel less compassion for pain caused to humans we can force under that label.

    Please don’t misunderstand me. I am not making a claim that this approach will lead to world peace, because it won’t. What I am saying is that the further we can expand the norms of our Constitutional form of government, the better that is for us.

    In the end, there may not be any changes to our Open Letter to President Obama from the concepts I propose herein. What I do hope is that we can expand our use of that question – why?

  4. Jim Burrows says:

    I, likewise, do not mean to seem disagreeable, but I’ll have to say that despite the sentiment by multiple highly intelligent and well meaning people, the chance that our legal system will anytime soon extend Constitutionally protected rights to non-US persons outside the US I somewhere between negligible and none. We are far far more likely to deny them to US person or within the United States.

    It is all well, and good to glibly say that the intelligence community’s resistance to change should be minimal, but the reality is that their resistance to outside imposed change is huge. Breaches of security and procedure result in death or worse in the spy business and as such, and regardless of the fact that most of the intelligence community is not out in the field risking immediate exposure and death, they nonetheless resist change and interfrence at a very gut level.

    The notion that something as radical as extending Constitutionally protected rights to foreigners would be welcomed by the executive flies completely in the face of recent history. The same goes for the notion of any sort of ceding of power to the other branches of government. Certainly it is clear that the Bush admiistration was all about concentrating centralized power in the hands of the Executive and concentrating all executive power in the hands of the President. It should by now be nearly as obvious that that the progressive administration led by the guy who used to teach ConLaw, and who promises change, transparency and citizen empowerment is very nearly as loathe to cede any power whatsoever.

    No, I think that idealistic as it is to say that the whole world should be included in te Fourth Amendment, that is a completely hopeless direction, and that if we want to stem the tide of loss of civil liberties, we’ll have to do it in the context of the current assumptions and definitions, and today there is zero question but that Constitutional protections apply solely to US persons and people within the US jurisdiction.

  5. I look forward to the call today, during which I hope we will continue to advance the development of our Open Letter to the President.

    I was heartened to view President Obama speaking before the press in China, side by side with President Hu; the President of the United States of America and the President of the People’s Republic of China – conducting a joint press conference before the media – and this after having held a town hall with students from across China.

    I am sure the intelligence community anticipated this change years ago and so when they heard the president say:

    “Finally, as I did yesterday in Shanghai, I spoke to President Hu about America’s bedrock beliefs that all men and women possess certain fundamental human rights. We do not believe these principles are unique to America, but rather they are universal rights and that they should be available to all peoples, to all ethnic and religious minorities. And our two countries agreed to continue to move this discussion forward in a human rights dialogue that is scheduled for early next year.”

    They were well prepared to accept the notion that these are universal rights and “they should be available to all peoples.”

    It is not our residency or our citizenship in America that bestows upon us the right to not be searched – without cause – by the government of America. No, that is a right that belongs to us as a member of the human family and it has been bestowed upon us – irrevocably – by our Creator. This right is mine through birth – not through citizenship in the United States of America. Now, citizenship in the United States of America provides me with the knowledge that I live in a republic that recognizes this right – and it harms America by acting as though this right is of a political, transitory nature as opposed to one that is eternal and unchanging. That would be taking a top shelf right and placing it on the bar; on which level is it more likely to be broken?

    We need not make any change to this letter at all, but if liberals do not support the notion that the all people throughout the world are endowed with certain inalienable rights, then we certainly have no cause to wonder when conservatives choose to ignore that central, organizing principle of our Republic. Conservatives blather on and on about the “power of free markets”; we should seek to take as many of our arguments back to free people as we can. This is how conservatives have taken and tarnished the concept of freedom, so much so that they can pretend to argue for freedom, while arguing to imprison “terrorists” indefinitely.

    Liberals must wrest the notion of freedom back from those who have little understanding of the word and we must do so under the auspices of increasing our security: a police state can never be free.

  6. […] participants from across the ideological spectrum. Jim Burrows has started this conversation on the techie side of getting it right, and we will be providing an update on this soon as […]

  7. jon says:

    Derrick, Obama’s comments in China did indeed come up on the call yesterday 🙂

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