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Marcy Wheeler on journalism as terrorism, FISA court as duped rubber stamp, and bigfooting as crazy national insecurity

transcriber's picture

As always, I can't keep up with Marcy's postings on emptywheel, so I'm grateful for a new interview.

From The Scott Horton Show program notes for August 19:

Blogger Marcy Wheeler discusses the detention of Glenn Greenwald’s partner at Heathrow airport for “terrorism” concerns; the highly selective prosecution of government leaks; the Obama administration’s juvenile handling of Edward Snowden’s asylum journey; Greenwald’s bold proclamation that he will return to the US and fight for his Constitutional rights; and why the founder of now-defunct Lavabit email may face prosecution.

Podcast here, and transcript below the fold:

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Scott Horton interviews Marcy Wheeler
The Scott Horton Show
August 19, 2013

Transcript

SCOTT HORTON: All right, y’all, welcome back to the show. I’m Scott Horton. This is my show, The Scott Horton Show. Check out the new and improved website at scotthorton.org. It’s a work in progress, but... making progress. ScottHorton.org, approximately 3,000 interviews there, almost 3,000 interviews going back to 2003. And also you can follow me on Facebook, Twitter and YouTube at /scotthortonshow for any of those, Facebook, Twitter, YouTube. All right. Next up is our friend Marcy Wheeler. In the blogosphere she’s known as emptywheel. That’s emptywheel.net. Welcome back to the show, Marcy. How are you doing?

MARCY WHEELER: Hey, thanks for having me back.

SCOTT HORTON: Well, you’re welcome. Thank you very much for being here. I sure appreciate it, and I sure appreciate your blog. I learn so much every time I read it. I hope people go and check it out if they’re not already completely familiar. Let’s start with the detainment of, is that the proper legal term for what happened to Glenn Greenwald’s partner at the Heathrow Airport in London yesterday?

MARCY WHEELER: Yes, so. Yeah, Glenn Greenwald’s partner was detained in Heathrow for nine hours, which is to the minute, roughly, what they’re allowed to do without having to go to a judge.

SCOTT HORTON: Mmmhmm. And under what pretext?

Even though they started asking him questions right away about the NSA, they claimed that they stopped him because they had to make sure that he wasn’t a terrorist. So, getting awfully close to defining journalism as terrorism now.

MARCY WHEELER: Well, they held him under a terrorism pretext. So even though they started asking him questions right away about the NSA, they claimed that they stopped him because they thought, they had to make sure that he wasn’t a terrorist. So, getting awfully close to defining journalism as terrorism now.

SCOTT HORTON: Yeah, I wonder if that’s just the implication or if they just decided to break the law. I guess it becomes precedent either way, right? If they get away with it.

MARCY WHEELER: Yeah, I mean, already in the UK, you know, activists had said that people of color get stopped more often than white people. That’s not surprising. In the United States, the same thing can happen and they don’t even have to say terrorism. And, you know, one of the times – my husband’s not a citizen, and one of the few times he’s been detained, we were coming in from Brazil and most people, like David Miranda, Glenn’s partner, were just transiting, were just going through the airport, and a ton of them got pulled aside. And, you know, so I’m very sensitive to the fact that Brazilians just transiting the United States get pulled aside all the time. In the UK it’s supposed to be limited to people you’re plausibly trying to make sure aren’t terrorists, but in this case they pulled over a high-profile journalist’s partner. And ultimately the other interesting part of it is they confiscated all the devices he had with him, so laptop, phone, etcetera etcetera.

SCOTT HORTON: Right. I think they said even his Xbox, is that right?

MARCY WHEELER: Yep.

SCOTT HORTON: All right. I didn’t know that people travel with their Xboxes, but why not, I guess, if you’re really into that kind of thing.

MARCY WHEELER: Well, the New York Times did report that he may have been a courier, bringing stuff from Glenn to – he was visiting Laura Poitras in Germany, who is a documentary filmmaker, one of the other people who’s been central to the whole Edward Snowden story, so, you know. But as people who even were sympathetic to the notion that what the UK was doing was actually trying to reclaim stolen goods, meaning the leaked goods, the leaked documents that Edward Snowden had given Glenn and Laura, you know, they didn’t need to hold them for nine hours if all they wanted were his devices.

SCOTT HORTON: Yeah, and it’s not like he’s going to have all of the documents on him, and –

MARCY WHEELER: No.

SCOTT HORTON: – are they kind of admitting that they still can’t tell what all Edward Snowden may have downloaded?

Of course, this is a classified leak about a legal investigation into a classified leak, which we should always point out the irony of that because those leakers that make it clear that he pulled stuff when he was at Dell will never be prosecuted in the same way that they’re trying to go after Snowden himself.

MARCY WHEELER: You know, there’s conflicting reporting about that, and I suspect – I mean, one of the things that recently did come out – I think it was Reuters but I don’t guarantee it; I think it was a Mark Hosenball story – is that they now believe that he was downloading stuff when he worked for Dell, before he worked for Booz Allen Hamilton, so going back several years. We might ask what Dell does for the NSA that would give somebody this much access, but apparently it did. So they, you know, I think they’re beginning to suss out – and in that case, in the Dell case, he did leave some kind of digital tracks and they were able to find that he was there. Of course, this is a classified leak about a legal investigation into a classified leak, which is, we should always point out the irony of that because those leakers that make it clear that he pulled stuff when he was at Dell will never be prosecuted in the same way that they’re trying to go after Snowden himself.

SCOTT HORTON: Right. Yeah, and they make that contradiction plain on a daily basis, too –

MARCY WHEELER: Right.

SCOTT HORTON: – the authorized leaks versus the unauthorized ones, and the legality. Which goes right back to the point about detaining Glenn Greenwald’s partner under any old law. I mean, why not just call it a parking ticket thing or whatever, because the truth is, just like Glenn Greenwald’s whole book is about, at this point there’s no such thing as the law. These are all just – you know, that’s a fancy term for a pretext for a government agent to kidnap somebody. That was why I was stumbling over “detain” at the time at the beginning of the show is because who cares what they call it, kind of, or what do you call it when it’s imprisoning someone, temporarily, whatever, but it seems like if you call it “detain” you sort of make it sound like it was actually lawful as some kind of pre-agreed upon process rather than just the arbitrary will of tyrants.

Whether or not Miranda was carrying documents between Poitras and Greenwald, are we now at the point where that journalistic function becomes a problem? Becomes prosecutable? It certainly seems to be the case. But the other thing is, it also raises attention to the fact that this happens. One of the reasons Laura Poitras is in Germany is because that happened to her like 40 times, every time she crossed the border.

MARCY WHEELER: Right. I mean, detain – and it’s nine hours. I mean, you know, detain at the airport, and of course he wasn’t allowed to have a lawyer. The way it works in the UK, if you don’t cooperate, then you can be prosecuted for not cooperating. There’s a whole lot that’s packed into that, and I’m glad that this has gotten as much attention as it has, partly because there are a lot of people including Andrew Sullivan who have been kind of saying, “I’m not sure this NSA deal is as big of a deal as you guys make out because I’m really worried about terrorists,” but last night after this happened to David Miranda, whom he knows through Glenn, he was like, “You know, this is arbitrary. This is where things start hitting the fan because it’s clear that they’re going outside the law to go and try and get to Glenn.” And of course, you know, whether or not Miranda was carrying documents between Poitras and Greenwald, are we now at the point where that journalistic function becomes a problem? Becomes prosecutable? It certainly seems to be the case. But the other thing is, it also I think raises attention to the fact that this happens. I mean, it happened – well, one of the reasons Laura Poitras is in Germany is because that happened to her like 40 times, every time she crossed the border.

SCOTT HORTON: She’s an American citizen, right?

As the US and the UK continue to bigfoot their Snowden response, they continue to piss off Latin America. I joked last night that Miranda should feel good because he got the same treatment that Evo Morales, the president of Bolivia, got, right?

MARCY WHEELER: She’s an American citizen. Unlike Miranda. But, you know, Miranda was transiting through London from Germany to go back to Brazil. He’s a Brazilian citizen. The Brazilian government is sort of pissed, which is interesting because as the US and the UK continue to bigfoot their Snowden response, they continue to piss off Latin America. You know, I joked last night that Miranda should feel good because he got the same treatment that Evo Morales, the president of Bolivia, got, right?

SCOTT HORTON: Right.

MARCY WHEELER: All of Europe decides to stop this guy, and it’s absurd, but, but that’s where we’ve gotten, I guess.

SCOTT HORTON: Yeah, in this day and age consider that the red carpet treatment. That’s a mark of distinction and honor.

MARCY WHEELER: Yeah. Right.

SCOTT HORTON: All right, well, so, here’s a thing to discuss. What a stupid move! I mean, if you’re the military intelligence people or whatever, they didn’t apparently think this through very good, or they need to fire and hire a different psychological profiler or something like that, because this is just going to piss off Glenn Greenwald and now he’s just going to publish more and louder somehow. Come on.

It’s just a lot easier for the US to spy on every other country than it is for them to spy on the United States, because we’ve made it so much of the telecommunications infrastructure passes through the United States and we just pick stuff up as it goes through. And that’s one of the things that Snowden’s revelations make clear. You know, I think the Russians and Brazilians and everyone else knew that already, but it makes it clear to all of us.

MARCY WHEELER: Well, I mean, I’ve been saying that from the start, that if they really cared – I believe that Snowden at least to some extent has documents that are as inflammatory as he says, or as crazy as he says. And, you know, back in the old Cold War era, and I said this I think even bef– well, I said it I think as Snowden was flying to Russia, but back in the Cold War, you know, when we had spies, when we had people who were willing to trade secrets and choosing to trade secrets, what we would do, first and foremost, is minimize the threat. And at that point I said, you know, if you want to minimize a threat, you find a way to get Snowden to retire quietly in the south of France where, you know, he isn’t in your custody but at least he’s not going to be turning everything over to Putin and what have you. But in this case, at every step the US has sort of exacerbated the problem, partly because, you know, as I said, the treatment of Evo Morales is a good example. I mean, partly because you’re making it clear that this is about imposing US power all over the world. And one of the things that Snowden’s revelations do, there’s been less focus on this recently, is they describe the degree to which the US uses its advantageous position on the telecommunications networks to – it’s just a lot easier for the US to spy on every other country than it is for them to spy on the United States, because we’ve made it so much of the telecommunications infrastructure passes through the United States and we just pick stuff up as it goes through. And that’s one of the things that Snowden’s revelations make clear. You know, I think the Russians and Brazilians and everyone else knew that already, but it makes it clear to all of us.

SCOTT HORTON: Right. Well, and the thing is, it’s funny, is Obama’s virtually exiled him to Siberia, right? But then only just for the PR that he could say, “See, Snowden’s in Russia, what a bad patriot he supposedly is,” kind of a thing, when we all know that Obama’s the one who exiled him there by taking his passport away. Illegally, by the way, right? Just on his executive order, which he has no authority to do.

MARCY WHEELER: I mean, I’m going to put aside the question of, you know, of will, of what ended up putting Snowden in Russia. But part of what’s going on, and I’m going to forget her name but it was at The New Republic. You know, one of the issues is that the United States turned around and dealt with this like a spoiled child. Like, Putin’s a jerk, Putin is not a nice person, but nevertheless Putin has a degree of power and a great deal of ego and we dealt with Putin like we were dealing with a child. You know, we dealt with Putin saying, “Oh, give him back. Just give him – you have to give him back.” Rather than saying, you know, “What would it take to get – you know, we’ll give you Victor Bout, who you’ve been asking us for for a while, if you give us Snowden. Let’s make a deal.” And, you know, one of the things that this whole episode has shown is that this kind of bigfooting just doesn’t work. I mean, regardless of how much more powerful we are than Russia, Putin is going to get his way every opportunity he has to get his way, and we’ve just made it a lot easier for him in this case.

SCOTT HORTON: Right. But I mean then again there were strong indications, right, that Snowden wanted to come to the Western hemisphere and go down to South America, where it’s, you know, quite arguable that he would have been a lot easier to get if Obama really just wanted to get him, that they could have gotten him, you know, if he’s down in Bolivia or something, but they’ve gone to every effort to leave him, you know, even grounding the Bolivian president’s plane, as you mentioned, in order to keep him isolated in Russia. So it doesn’t seem like – I mean, you’re right that they’re playing their hand badly, but it seems pretty deliberate that they’re playing it badly. They want him there.

After watching via Alexa O’Brien’s amazing Twitter feed the Bradley Manning sentencing, it became clear how really paranoid they are about having the Bolivarists in Latin America. They basically said Bradley Manning is at fault for all of the Bolivarists challenging the Washington consensus, which is complete nonsense, and it really betrayed a great deal of worry about having these Latin American leaders who are suggesting that maybe, you know, maybe, maybe redistributing wealth works better than just having superrich oligarchs.

MARCY WHEELER: They are, but after – and I agree, and certainly when they downed Morales, I certainly agreed at that point 100% with what you said, but after watching or, you know, watching via Twitter, via Alexa O’Brien’s amazing Twitter feed, the Bradley Manning sentencing, you know, it became clear how really paranoid they are about having the Bolivarists in Latin America. Meaning, you know, they basically said Bradley Manning is at fault for all of the Bolivarists challenging the Washington consensus, which is complete nonsense. You know, they went so far as to suggest that, you know, the mere increase in usage of neoliberalism is due to Bradley Manning. Which is crazy. But it was this crazy paranoid argument they were making on the stand to try and get a longer prison sentence for Bradley Manning, and it really betrayed a great deal of worry about having these Latin American leaders who are suggesting that maybe, you know, maybe, maybe redistributing wealth works better than just having superrich oligarchs. And I found it really interesting. I mean, I think it’s a real testament to insecurities in the United States about the power that that ideology, the Bolivarist ideology, might have, particularly backed by oil and gas as it increasingly is. So –

SCOTT HORTON: Right.

MARCY WHEELER: – that’s a side note but, but I find it interesting in this case, and so I think to some degree they were as worried that Edward Snowden would further empower this ideology that directly challenges the efficacy of the Washington consensus, if that makes sense.

SCOTT HORTON: Yeah. True. And you know, if they really are just focused, or to whatever degree they’re just focused on trying to make Snowden look bad for being in Russia, they could have done the same thing. They could have demonized him in the same way if he was, you know, in South America and all that. I think they really did just – it is kind of a ham-handed approach up there, this administration, on virtually every issue.

This Miranda detention of Glenn’s partner in the UK I think is another example where you’re just proving everything that Snowden was trying to reveal, which is that the US is abusing its power.

MARCY WHEELER: Yeah, I mean, even if – and I don’t, and you don’t, but even if we were on the administration’s side and thought, well, you know, you have to neutralize Snowden at all costs – even if you bought that, I’d still think their response has been ridiculous. I think it’s been completely ineffective. And back to where we started, this Miranda detention of Glenn’s partner in the UK I think is another example where, you know, you’re just proving everything that Snowden was trying to reveal, which is that the US is abusing its power, it’s bigfooting, it’s – you know, what have you.

SCOTT HORTON: Right. Yeah, “We’re not targeting you, it’s all about terrorism. Here, let’s detain the partner of the journalist who’s exposing us, under terrorism powers.” And they really are just clumsy.

Now, here’s another important thing I think, in Justin Raimondo’s column at antiwar.com today, he refers to a statement by Glenn Greenwald, I forget exactly where, where he says that – I guess he was asked in an interview whether he’s worried about coming back to the United States, whether he’d be prosecuted, because a bunch of loudmouths in D.C. have been talking about prosecuting him for journalism, and now he said something brave about the First Amendment and how he ain’t afraid and he’s coming back, and Justin Raimondo says, “No. Stay gone. You know and I know there is no First Amendment and that actually you’re not safe, and so don’t be a martyr, just stay where you are and keep publishing things.” And I was wondering what you think about that. I mean, because after all, for a Constitutional lawyer like Glenn Greenwald, that’s the place to make your stand. Can they really just prosecute a journalist for doing investigative journalism? And a lawyer journalist, no less, for doing investigative journalism in America. Is the First Amendment completely dead or not? That’s a pretty big thing to do or not do, but I guess it was more of a personal thing that Justin was saying. “If you really value your liberty, you will not come back.”

MARCY WHEELER: Well, I mean, look at Barton Gellman, who, as you know, he’s the other journalist to get a lot of the Snowden leaks, and he published on Thursday night a bunch of details about the violations the NSA has had on these programs, and you know I do think that they would go after Glenn a lot quicker than they would go after Barton, partly because Barton, you know, he’s publishing in the Washington Post, he’s not publishing in The Guardian. People like to say, “Oh, The Guardian is the UK,” you know –

SCOTT HORTON: Yeah, I like Gellman, but he’s no Greenwald.

As bigfooted as they are, as stupid as detaining Miranda was, as stupid as detaining Evo Morales was, I think that they believe, probably rightly, that American citizens are not going to pay attention unless it happens in this country.

MARCY WHEELER: That’s true, but it was funny, because after he published that, and remember, remember that he’d had this long interview with the NSA’s compliance guy and that was supposed to all be good, but then at the last minute the White House panicked and said, “No, no, you can’t publish anything by Compliance Guy, and then the very next day Compliance Guy had a conference call with journalists to kind of rebut what Gellman had said and they didn’t even invite Gellman. You know, they didn’t invite Gellman to fact check the things that the compliance guy had said, you know, just five days before, because they couldn’t subject themselves to that risk, so I think it’s funny. I think Gellman is no Greenwald, although some of his stories have been just as important as what Greenwald has done. I do think they would go after Greenwald a lot quicker, but I also think, you know, the US is a lot more willing to, say, prosecute journalists who if they work for Al Jazeera, if they’re overseas, you know, if they’re in Yemen, but they – as bigfooted as they are, as stupid as detaining Miranda was, as stupid as detaining Evo Morales was, I think that they believe, probably rightly, that American citizens are not going to pay attention unless it happens in this country.

SCOTT HORTON: Yeah.

MARCY WHEELER: But I could be wrong.

SCOTT HORTON: I mean, hey, there’s just no denying how stark of a bright line that would be crossing, to simply – I mean, we do not have an Official Secrets Act in this country because this ain’t England. We declared, well somebody back then declared independence from them, and we have the First Amendment, and we either have the First Amendment or we don’t, and even for people who hate Glenn Greenwald, that’s the same one that protects your right to choose which church you want to go to too, pal.

The other thing to remember though is, if you look at what’s happening with James Risen, I think the chances that he’s going to end up doing jail time to protect his source are still pretty high, and most people I think who have observed that closer believe that was the point. You know, they wanted to prosecute Risen and his sources for the original NSA story, found they couldn’t do that, then they went after this other story and used every opportunity to say Risen needs to testify, Risen needs to testify, Risen needs to testify. So in that case they’re finding another way to probably make Risen go to jail.

MARCY WHEELER: Right, and I mean the other thing to remember though is, if you look at what’s happening with James Risen, you know, I think the chances that he’s going to end up doing jail time to protect his source and to protect the notion of source is still pretty high, and you know most people I think who have observed that closer believe that was the point. You know, they wanted to prosecute Risen and his sources for the original NSA story, found they couldn’t do that, then they went after this other story and used every opportunity to say Risen needs to testify, Risen needs to testify, Risen needs to testify. So in that case they’re finding another way to probably make Risen go to jail.

And then you look at Lavabit that tried to – I think you had somebody on talk about that last week, which is the e-mail provider that Snowden used, and he had been getting some kind of request, probably from the FISA court, and rather than comply just shut down. And, you know, there are reports that they may try and prosecute him for choosing to go out of business rather than fail to provide his customers with the guarantee of security that they thought that they had. And that’s, you know, that’s another striking issue, because if he can’t guaran– you know, if he goes to jail because he’s trying to basically fulfill a contract with his customers, that’s another huge problem.

SCOTT HORTON: Yeah, they’re going to prosecute him for not staying in business so that he can continue betraying his customers’ contract? What?

On Lavabit: I think if what I just described is in fact what’s happening, that they basically were trying to require him to renege on the promise he made to all of his customers, not just Edward Snowden, then I think everyone will be up in arms because it’s a business issue. It’s a contractual obligation issue. And we are getting close to the point where businesses need encryption, they need secrecy just as much as private citizens do, and if the government can do this to private citizens, they can do it to businesses as well.

MARCY WHEELER: Right. Right. I mean, that’s a problem. And, you know, of course in that case they’re doing it with complete secrecy, and I think if what I just described is in fact what’s happening, that they basically were trying to require him to renege on the promise he made to all of his customers, not just Edward Snowden, then, you know, I think everyone will be up in arms because it’s a business issue. It’s a contractual obligation issue. And we are getting close to the point where, you know, businesses need encryption, they need secrecy just as much as private citizens do, and if the government can do this to private citizens, they can do it to businesses as well, and I think, you know, that’s one thing, again, the government is going to try and hide, but I think increasingly they’re going to be less able to hide.

SCOTT HORTON: Man. I mean that is really something else, right, where the headline is for a week that this guy shut his company down rather than – because that was his choice. You can either continue and turn over this information – presumably they were asking for everybody’s password, that kind of thing – he can either continue doing that at gunpoint or he can just go out of business. And then the truth is, no he wasn’t even allowed the option of going out of business, he was threatened with arrest and prosecution for choosing to go out of business. He didn’t even have that option, apparently. Wow.

MARCY WHEELER: Yes. Yes.

SCOTT HORTON: That is really something else. And it’s here at boingboing.net, by the way, if people want to look at that threat of Lavibit’s owner threatened with arrest. Now that is really something else.

And then, oh yeah, do we get a chance to mention about this thing where the head judge of the FISA court has said, “Actually, we can’t provide oversight.” (laughs) Never mind whether they’re transparent or not, the chief judge of the FISA court says that “I’m, me and my colleagues, we’re a joke. Yeah, there’s no check and balance here at all.” I’m roughly paraphrasing, Marcy, forgive me.

One of the things that Gellman reported, this is one of the big shoes that’s going to drop, is that in 2011 the NSA started to do something, didn’t tell the FISA court about it for months, and when the FISA court finally reviewed it in the annual reauthorization process they said, “No, that’s illegal, that violates the Fourth Amendment,” and put a halt to it. First of all, it says that the government is kind of inventing new approaches without telling the FISA court. But as more and more of these revelations come out, I think Judge Walton is beginning to realize the cracks in the system. And some of the authorizations and some of the applications made to the FISA court have relied on tortured interrogation, and so you’ve got illegal wiretapping building on top of torture, all hidden behind the FISA court. The fact that the FISA court is at the mercy of the NSA to hand over the information and be honest is a real fundamental problem with them as an oversight body.

MARCY WHEELER: No, no, no, you’re right. So the chief judge of the FISA court, Reggie Walton, who incidentally is the same guy who prosecuted Scooter Libby, so I’ve gotten to meet him a couple of times, but he, you know, he had in the past said, “We’re not a rubber stamp.” He had described – a couple weeks ago, he sent something to Patrick Leahy which is available online which describes their process, which is actually an interesting document. But in response to Barton Gellman’s story on Thursday night, he – and one of the things that Gellman reported, which is, this is one of the big shoes that’s going to drop, which is that in 2011 the NSA started to do something, didn’t tell the FISA court about it for months, and when the FISA court finally reviewed it in the annual reauthorization process, they said, “No, that’s illegal, that violates the Fourth Amendment,” and put a halt to it. First of all, it says that, you know, the government is kind of inventing new approaches without telling the FISA court, using the same law, and that means it could be up to 11 months before the FISA court is actually going to get a peek at this. They didn’t know about it in this case. But I think as more and more of these revelations come out, I think Walton, Judge Walton, is beginning to realize the cracks in the system and know that, you know, basically what he said is the FISA court wasn’t set up to be an oversight. They weren’t set up to audit the NSA’s claims. They have to trust the NSA’s claims and they have to trust that the NSA is going to be forthright with them about these claims, and they’re not in the posi– and this what I’ve said from the start, I don’t think the FISA court is a rubber stamp, but I think they have been defined by statute to have a very limited role, and that’s one of the things we’re seeing now which is that they, you know, they’re the ones the government points to to prove that they’re operating soundly, but they don’t have any independent way of getting this information, and there are a couple of instances where it’s fairly clear the government was misrepresenting basically the value of these programs. And in some cases, they’ve, you know, I’ve in the past shown that some of the authorizations and some of the applications made to the FISA court have relied on tortured interrogation, and so you’ve got illegal wiretapping building on top of torture, all hidden behind the FISA court. So, you know, the FISA court, that’s a problem, and what I just brought up, that sometimes the information that goes to the FISA court is based on torture, that would have been found more likely if there was an antagonist in the court. You know, if there was a defense attorney or somebody in the court. And in the absence of this, the fact that the FISA court is at the mercy of the NSA to hand over the information and be honest, I think is a real fundamental problem with them as an oversight body.

SCOTT HORTON: Mmmhmm. Well, and then when they passed the FISA amendments in ’08, is it fair to say that – you know, because obviously the – well, I don’t know how obvious – the Bush administration had been caught with the illegal program and they had to shut down at least parts of it or something, but then the Democrats rode into the Republican’s safety and legalized what the Bush team had been doing, so making the point moot about all their criminal violations of the law and all that, and giving immunity to all the telecoms that helped them do it at the same time. But then what it did, really, didn’t it really make a pretty big step in the role of the FISA court, a big change where they’re really no longer even granting individualized warrants; they really just grant general warrants against categories of information rather than targets that the NSA’s even looking for – I mean, that’s the way I’ve been paraphrasing my understanding of it since ’08 when the whole thing was explained to me in the first place. Is that not about right?

The other difference that happened as they were trying to make Cheney’s illegal program legal, and it started back in 2004, is that they would go to the court and say, “Heeey! We’ve got this thing. We want to collect all of the internet metadata in the country, and we’d like to have your rubber stamp for it.” And this is where they get called a rubber stamp, by the way. And the FISA court approved that and then approved using the Section 215 to collect all of the metadata, and subsequently has approved, we think, probably a bunch more of those decisions, and those have been described as more Constitutional questions. They go to more fundamental questions about how the Fourth Amendment works and how the First Amendment works and how a bunch of court precedents work, and that’s the problem, that’s the other problem, that in 2008 they were given a completely different role as far as defining what the NSA could do, but even before that they were being asked to make the kinds of decisions that usually appeals courts and the Supreme Court make, and they were doing it in secret and without any opposing side to influence their decisions.

MARCY WHEELER: Yeah, it’s actually, it was a gradual process that started from 2004 to 2008 and two things happened: One, as you’re right, basically the government goes to the FISA court and gets a programmatic approval. It will go and say, “Okay, we want to spy on Al Qaeda.” And the FISA court says, “Okay, that’s fine, so long as you follow the rules, don’t target anyone in the United States, follow the minimization rules, yada yada yada.” And that’s what goes on as opposed to previously, where they’d go, “I want to spy on Anwar al-Aulaqi, who we believe is part of Al Qaeda,” and the court would then approve, and did, almost certainly, getting a pretty broad collection on Anwar al-Aulaqi’s communications. So that’s one difference that happened. But the other difference that happened as they were trying to make Cheney’s illegal program legal, and it started back in 2004, is that they would go to the court and say, “Heeey! We’ve got this thing. We want to collect all of the internet metadata in the country, and we’d like to have your rubberstamp for it.” And this is where they get called a rubber stamp, by the way. “Here’s a novel legal theory. Would you mind approving the novel legal theory so we can use your stamp of approval to claim that what we’re doing is legal?” And the government, you know, the FISA court approved that and then approved using the Section 215 to collect all of the metadata, and subsequently has approved, we think, probably a bunch more of those decisions, and those have been described as more Constitutional questions. You know, they go to more fundamental questions about how the Fourth Amendment works and how the First Amendment works and how a bunch of court precedents work, and that’s the problem, that’s the other problem, you know, that in 2008 they were given a completely different role as far as defining what the NSA could do, but even before that they were being asked to make the kinds of decisions that usually appeals courts and the Supreme Court make, and they were doing it in secret and without any opposing side to kind of influence their decisions.

SCOTT HORTON: Right. And then so that’s what the NSA files are revealing now is the extent to which they’re able to just take all these interpretations and just run with them and basically collect and collect what they want and only call it collecting when they want.

MARCY WHEELER: Right. Or target when they want, or any number of other words they’ve redefined.

SCOTT HORTON: Yeah. Amazing. All right. Good times. Well, thank you very much for your time. Sorry I’ve already kept you a little late here but I really appreciate you joining us, as always, Marcy.

MARCY WHEELER: Great to be here, Scott.

SCOTT HORTON: All right, everybody that is the great Marcy Wheeler, emptywheel.net, that’s her great blog.

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Submitted by JuliaWilliams on

Just a comment, I appreciate your posts and their transcriptions immensely, thanks again.

Time for Real Change

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Submitted by transcriber on

Thank you, Julia. You're so nice to say so. Really appreciate it.