Obama’s Bipartisanship: Hiding Behind Jeff Sessions’ Skirts When Eliminating Privacy Protections

There are two disturbing details in Charlie Savage’s coverage of Thursday’s PATRIOT Act Hearing. As I reported on Thursday, the first thing the Committee did on Thursday was accept a whole package of amendments from Jefferson Beauregard Sessions III, doing things like limiting the library records under Section 215 which must be shown to have some tie to terrorism or spying.

Sessions: What we don’t all agree on is that the PATRIOT Act is not an overreach. Classified briefing. See if we can agree on language. Operation difficulties have been altered. Five amendments to address operational issues. One, on pen registers minimization. Remember, pen registers just pick up numbers, not content. [Uh, and names, and with email, probably subject lines.] Judicial review standards for NSL non-disclosure orders. “Judges should not have discretion” to refuse a non-disclosure order if govt meets the burden.

How nice that the ranking member of SJC wants to gut Article III of the Constitution.

LOL!! Sesssions trying to eliminate library exception with “the Fourth Amendment.”

Sessions, on pen registers, claims no content. (Um, except for the subject lines of emails?)

The committee accepted those changes, with almost no discussion, on a voice vote.

Well, as Savage points out, that package came from the Administration.

A Democratic staffer, speaking on condition of anonymity, said Mr. Sessions’ amendments were a verbatim transfer of the text of amendments the Obama administration had privately sent to Congress on Wednesday.

And guess what? As Savage also points out, Sessions didn’t even vote for the bill!

Now, as a threshold matter, consider what the Obama Administration did. It worked with the most heinous member of the opposition party to basically get the committee to rubber stamp changes made by the Administration. Pat Leahy didn’t have to answer for these changes. DiFi didn’t have to answer for these changes. Nope, DiFi and Leahy are hiding behind Jefferson Beauregard Sessions III’s plantation skirts.

But for that, the Obama Administration didn’t even get Sessions’ vote.

Changey bipartisanship we can believe in!!

Now, as Savage points out, aside from the library one, most of the amendments relate to record-keeping.

But not one that will serve to eliminate minimization for US person data in the case of some emails. As a reminder, pen registers and trap and trace devices allow investigators to get lists of who called to and from a particular number. Legislators always pretend they pertain exclusively to phone calls, but in reality they’re used with emails and other online communication as well. And with emails, there’s much more debate about what constitutes “content” and what constitutes “metadata” accessible through pen registers.

Here’s what the DiFi substitute said before Thursday.

SEC. 4. ORDERS FOR PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN INTELLIGENCE PURPOSES.

(a) IN GENERAL.—

(1) APPLICATION.—Section 402(c) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842(c)) is amended—

(A) in paragraph (1), by striking ‘‘and’’ at the end; and (B) in paragraph (2)—(i) by striking ‘‘a certification by the applicant’’ and inserting ‘‘a statement of the facts and circumstances relied upon by the applicant to justify the belief of the applicant’’; and 1 (ii) by striking the period at the end and inserting ‘‘; and’’; and (C) by adding at the end the following:‘‘(3) a statement of proposed minimization procedures.’’.

(2) MINIMIZATION.—

(A) DEFINITION.—Section 401 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1841) is amended by adding at the end the following:

‘‘(4) The term ‘minimization procedures’ means—

‘‘(A) specific procedures that are reasonably designed in light of the purpose and technique of an order for the installation and use of a pen register or trap and trace device, to minimize the 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;

‘‘(B) procedures that require that nonpublicly available information, which is not foreign intelligence information 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; and

‘‘(C) notwithstanding subparagraphs (A) and (B), 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.’’.

(B) PEN REGISTERS AND TRAP AND TRACE DEVICES.—Section 402 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842) is amended— (i) in subsection (d)— (I) in paragraph (1), by inserting ‘‘, and that the proposed minimization procedures meet the definition of minimization procedures under this title’’ before the period at the end; and (II) in paragraph (2)(B)—(aa) in clause (ii)(II), by striking ‘‘and’’ after the semicolon; and (bb) by adding at the end the following:

‘‘(iv) the minimization procedures be followed; and’’; and (ii) by adding at the end the following:

‘‘(h) At or before the end of the period of time for which the installation and use of a pen register or trap and trace device is approved under an order or an extension under this section, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was retained or disseminated.’’.

(C) EMERGENCIES.—Section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843) is amended—

(i) by redesignating subsection (c) as (d); and (ii) by inserting after subsection (b) the following:

‘‘(c) If the Attorney General authorizes the emergency installation and use of a pen register or trap and trace device under this section, the Attorney General shall require that the minimization procedures required by this title for the issuance of a judicial order be followed.’’.

(D) USE OF INFORMATION.—Section 405(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1845(a)) is amended by striking ‘‘provisions of’’ and inserting ‘‘minimization procedures required under’’. [my bold]

That section basically laid out the same completely bogus for pen registers as DiFi’s amendment did for Section 215–basically allowing a judge to examine only whether the applicant had some cockamamie theory connecting this request for foreign intelligence, while not allowing her to examine whether that cockamamie theory made sense. It also gave the AG emergency authority to get them pen registers. I’ll come back to “unconsenting” in a later post.

Here’s what it looks like after Sessions Obama got done with it.

SEC. 4. ORDERS FOR PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN INTELLIGENCE PURPOSES.

(a) IN GENERAL.—

(1) APPLICATION.—Section 402(c) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842(c)) is amended—

(A) in paragraph (1), by striking ‘‘and’’ at the end; and (B) in paragraph (2)—(i) by striking ‘‘a certification by the applicant’’ and inserting ‘‘a statement of the facts and circumstances relied upon by the applicant to justify the belief of the applicant’’; and 1 (ii) by striking the period at the end and inserting ‘‘; and’’; and (C) by adding at the end the following:‘‘(3) a statement of whether minimization procedures are being proposed and, if so, a statement of the proposed minimization procedures.’’.

(2) MINIMIZATION.—

(A) DEFINITION.—Section 401 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1841) is amended by adding at the end the following:

‘‘(4) The term ‘minimization procedures’ means—

‘‘(A) specific procedures that are reasonably designed in light of the purpose and technique of an order for the installation and use of a pen register or trap and trace device, to minimize the retention, and prohibit the dissemination, of nonpublicly available information known to concern unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

‘‘(B) procedures that require that nonpublicly available information, which is not foreign intelligence information 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; and

‘‘(C) notwithstanding subparagraphs (A) and (B), 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.’’.

(B) PEN REGISTERS AND TRAP AND TRACE DEVICES.—Section 402 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842) is amended— (i) in subsection (d)— (I) in paragraph (1), by inserting ‘‘, and if, in exceptional circumstances, minimization procedures are ordered, that the proposed minimization procedures meet the definition of minimization procedures under this title’’ before the period at the end; and (II) in paragraph (2)(B)—(aa) in clause (ii)(II), by striking ‘‘and’’ after the semicolon; and (bb) by adding at the end the following:

‘‘(iv) ‘‘if applicable, the minimization procedures be followed; and’’; and (ii) by adding at the end the following:

‘‘(h) At or before the end of the period of time for which the installation and use of a pen register or trap and trace device is approved under an order or an extension under this section, the judge may assess compliance with any applicable minimization procedures by reviewing the circumstances under which information concerning United States persons was retained or disseminated.’’.

(C) EMERGENCIES.—Section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843) is amended—

(i) by redesignating subsection (c) as (d); and (ii) by inserting after subsection (b) the following:

‘‘(c) If the Attorney General authorizes the emergency installation and use of a pen register or trap and trace device under this section, the Attorney General shall require require that minimization procedures be followed, if appropriate.’’.

(D) USE OF INFORMATION.—Section 405(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1845(a)) is amended by striking ‘‘provisions of’’ and inserting ‘‘minimization procedures required under’’.

See what Jeff Sesssions–I mean Barack Obama–did in complete secrecy and behind the cover of Jeff Sessions’ skirts the other night?

They absolutely gutted the minimization procedures tied to pen registers! Pen registers are almost certainly the means by which the government is conducting the data mining of American people (using the meta-data from their calls and emails to decide whether to tap them fully). And Jeff Sesssions–I mean Barack Obama–simply gutted any requirement that the government get rid of all this meta-data when they’re done with it. They gutted any prohibitions against sharing this information widely. In fact, they’ve specified that judges should only require minimization procedures in extraordinary circumstances. Otherwise, there is very little limiting what they can do with your data and mine once they’ve collected it.

The whole thing is disgusting: Obama sneaking these in in a last-minute classified briefing. Doing so under cover from Jeff Sessions (what? DiFi and Pat Leahy don’t want responsibility for this??). Pat Leahy letting that happen. A voice vote, so no one will ever hold Leahy and DiFi and Whitehouse and Franken and others responsible for doing this.

Update: Added one more bit of language gutting minimization from this amendment.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

50 replies
  1. BoxTurtle says:

    Prediction: Obama is not yet done disappointing us in this area.

    Here’s what worries me. We need a new defination of what qualifies as a search. Technology has surpassed the law.

    Is it a search if I ask for all the phones numbers that called your cell? Yes. Is it a search if I carry a scanner in my pocket that happens to pick up the cell phone ident information that’s exchanged during a call?

    Is it a search if I store all phone calling data, including text and voice forever? That information goes out over the air, I can pick it up just by listening. If I run a search against that, do I need a warrant for everybody or just a warrant to look for “acetone”?

    If I tell a computer to scan the data looking for terrorists, but set it up so that it only shows to agents people we have probable cause for a warrant?

    Keep in mind that the phone companies are already mining the data much more extensively for marketing purposes. And it’s perfectly legal.

    Boxturtle (Still doesn’t regret voting for Obama over McBush)

  2. PJEvans says:

    Are these from O’s people or from the Bush staybehinds?
    Will we ever get O to stand behind his rhetoric, or is he going to be all talk-nice, act-bad?

    (Also no regrets about choosing O over McC, however much I regret O’s lack of followthrough on promises; I suspect that Palin would be president by now if we’d chosen the other guy.)

    • BoxTurtle says:

      Oh, it’s coming from ObamaCo…or else ObamaCo is aware of the Bush holdover’s actions and approved of them.

      Either way, it begins and ends on Obama’s desk.

      Boxturtle (The only secure Communication in America may be Obama’s Blackberry)

    • emptywheel says:

      There’s no distinction in this case.

      John Brennan is the stay-behind who was central to the illegal program and is now in charge of this stuff for Obama. Bush’s stay-behind IS Obama’s guy.

      • Mary says:

        I think on this, wherever the direction is coming from, the amendments likely came from, or under the direction of, Kris. He wasn’t a Bush left behind – he left while Bush was in office and even made some noises about Bushco violating the law. Apparently that was bc he wanted the law to change, not the actions. Obama went out and got Kris to bring back in. From what I’ve read, Kris is much smarter and he’s probably more trusted by SJC guys – than the crew from before. This kind of language changes almost had to come from his guys – I think it’s where I feel most kicked in the gut. He’s someone whose writings and demeanor indicated that he understood the dangers, but then you get what has been going on the last few months. One more strike out in the search for some baseline respect for the Bill of Rights at DOJ.

        • bmaz says:

          Kris is a career prosecutor (in the DC Office no less); what made you think he is any civil libertarian? That is simply not how, with very rare exception, career law enforcement thinks. They never see the other side that is daily bludgeoned by their bullshit.

            • Mary says:

              He’s been ethics and compliance officer at Time, not GC.

              @13 – I’m not going to say I wasn’t wrong, bc I have been wrong, but if you want to know what made me think he was going to be more honest, it’s reading a lot of his writings, from his pre-9/11 presentations on “the wall” to the SJC, to his willingness to engage in the public exchanges he had – I think it was with Slate – on the topics.

              When most of the Dems other than Feingold were being obseqious about the TSP, and just after NYT covered it up for a year, and when it might not have made his Time employer very happy, Kris did this:

              Ex-Justice Lawyer Rips Case for Spying

              A former senior national security lawyer at the Justice Department is highly critical of some of the Bush administration’s key legal justifications for warrantless spying, saying that many of the government’s arguments are weak and unlikely to be endorsed by the courts, according to documents released yesterday.

              David S. Kris, a former associate deputy attorney general who now works at Time Warner Inc., concludes that a National Security Agency domestic spying program is clearly covered by a 1978 law governing clandestine surveillance, according to a legal analysis and e-mails sent to current Justice officials.

              Kris, who oversaw national security issues at Justice from 2000 until he left the department in 2003, also wrote that the Bush administration’s contention that Congress had authorized the NSA program by approving the use of force against al-Qaeda was a “weak justification” unlikely to be supported by the courts.

              Kris’s views are contained both in a 23-page legal analysis that he provided yesterday to journalists and in a series of e-mails that he sent in December to Courtney Elwood, an associate counsel to Attorney General Alberto R. Gonzales. The e-mails were released yesterday by the Electronic Privacy Information Center, which obtained them as part of ongoing Freedom of Information Act litigation.

              I pretty much agreed with Lederman here:

              He’s extremely thorough, careful, and impartial. And those qualities are on display in his recent analysis of the NSA program, contained in this series of e-mails to the Attorney General’s Office in December and January, and, much more importantly, in this remarkable 23-page memo dated January 25, 2006. (All were written in his personal capacity, and do not reflect the views of DOJ or Time-Warner.)

              David’s memo is by a large measure the most thorough and careful — and, for those reasons, the most effective — critique anyone has yet offered of the DOJ argument that Congress statutorily authorized the NSA program. It largely confirms the statutory argument contained in two letters that I and 13 other academics and former government officials recently sent to Congress (here and here), but David’s analysis is much more comprehensive than anything we could have done in that format — it delves deep into the interstices and legislative history of FISA (a subject that David knows inside and out), and takes apart with precision all of the technical statutory arguments offered in the DOJ “White Paper” defense of the program.

              I don’t pretend to know (and if I did, I’d have to admit now to having been incomplete in my knowledge) that he is, as Lederman said, “thorough, careful and impartial” but I agreed his memo and exchanges were. Of course, it is a bit harder to claim “impartial” when he was the one asking for the ability to use FISA to conduct criminal investigations and surveillance of people for whom they were trying to rig up criminal cases, but against whom they had no criminal probable cause. Still, at the time I was absolutely impressed and especially that he did what he did (including follow up testimony to SJC and the more open debate exchanges and a little grilling of Wainstein when he was making a sales pitch at a Bar function, etc.) and while he was in a slot where his employer might not have been thrilled that he was poking the admin.

              Not a civil libertarian, but I though he was pretty honest in his arguments.

              Now, not so much. That legislation isn’t just a sell out, it’s a dishonest, stealth sell out.

              • bmaz says:

                Heh, well it turns out he is more than willing to go there, he is just smarter and more detailed in the legal cover he wants to do it with. In fairness, I guess that alone is a step up from the Bushies. I come more from the view that there is just a point to where you cannot be made more safe and i am not willing to give up ever more swaths of privacy and civil liberties for that tragically diminishing return of incremental safety and security. This is not how prosecutors and law enforcement thinks; the best of them are willing to go there but want to do it legally, the worst just want to go there and damn the Constitution. Either way, the Grand document dies in the end, it is just a matter of speed to that point.

        • emptywheel says:

          That may be true. Except that two weeks ago he said with a straight face, presumably under oath (though I’d have to check) that he was fine with Leahy’s bill as written.

          There was a briefing on–presumably–the Zazi case on Wednesday night which is where these all came from.

          • Mary says:

            Whether he was fine with it or not, he’s a lawyer with a client. He’s the guy in charge national security, which would put the nat security legislation tools in his bailiwick and I see no way you get legislation popped out of the WH on this issue without Kris’ team involved in some way or another – they weren’t going to have someone like Brennan draft legislation, and Kris is the guy (and presumably he has others on his team with the same expertise) with the expertise to get the language right to cover what his client wants and make sure they don’t leave holes and gaps.

            So I think his straight faced response to Leahy was his version of Gonzalian parsing – he might have been ok with it, but that doesn’t mean he wouldn’t slide in much more egregious language for his client. His primary issues had been, even in his prior writings, not so much Bill of Rights and decency related, as the statutory grants from Congress. If Leahy is willing to give away the farm, who is the lawyer for the guy who wants that farm for free to stand in his way? Sure, he’d be ok to buy the farm for a fair price too, but if the seller says, “oh no, please please please, screw me” then it’s hard not to take advantage of that for your client.

            Still – it’s dirty, in a really viscerally dishonest way. Couldn’t be more bummed.

  3. oldtree says:

    Isn’t the facade appealing? We have Obama using a racist to put through more draconian measures to remove our rights. Too bad they never seem to have a reason for doing so.
    Let me see if I have it straight? We have yet to have a terrorist attack on the US that wasn’t known about in advance. So we have to do more to find out in advance about all these nasties out there. If the terrorist group we find out about isn’t smart enough, our own FBI provides them with the tools to pretend to blow something up so they can get a conviction and look good. Do you think the FBI took care of building 7? Science says it had to be destroyed by a power not contained in the planes or the building, so it’s either magic, or it was explosives on the ground, right? Occam’s razor has to cut one way or the other.
    Nice to throw us a bone on health care as they sell us out. I must begin to wonder if we have anyone in our government that gives a crap about the constitution? I think the answer is no. I can’t see where anyone has tried to stop the endless parade toward totalitarian control of each aspect of our lives.

    • fatster says:

      Here’s a bit of hopeful news on the future of the National Security Agency’s ability to handle all the data being collected on all of us. In a huge facility somewhere in a remoter part of Utah “the data volumes are increasing with a projection that sensor data volume could potentially increase to the level of Yottabytes (1024 Bytes) by 2015.” But maintaining this facility requires huge amounts of power: “the biggest problem facing the agency is not the fact that it’s drowning in untranslated, indecipherable, and mostly unusable data,” but the cost of power, currently about $70 million annual. “And as it pleads for more money to construct newer and bigger power generators . . . Congress is balking.”

      More.

  4. fatster says:

    Thanks for this article, EW. Sessions’ are some pretty dirty skirts to be hiding behind. Very telling. And disgusting.

  5. Loo Hoo. says:

    Did you guys see this?

    The Obama administration believes giving the imminent grant of authority over the release of such pictures to the defense secretary would short-circuit a lawsuit filed by the American Civil Liberties Union under the Freedom of Information Act.

  6. PJEvans says:

    I think it’s time to start sharpening the pitchfork. And organizing for better Ds in next year’s elections, or organizing a better party for us DFHs to belong to (because I didn’t sign up for the conservative party).

    • emptywheel says:

      I don’t know where we’re going to get better D’s. We’re talking Leahy, Whitehouse, and Franken voting for this. Leahy is consistently among the furthest left on civil liberties issues.

  7. earlofhuntingdon says:

    Much of this is undoubtedly clean-up – a broad-based program to legalize and institutionalize all and more of the national security state Cheney illegally built on Bush’s watch.

    Should the administration finally lose its arguments in one or more court cases, its last redoubt is that whatever it did, if anything, it is now legal and it would be moot, bad policy, violate national security, ad nauseum, to disclose or punish it now.

    A rational court might toss that argument in a heartbeat, but it would buy two or three years – after that argument finally has to be made – as the case wound back to the Supremes. Who knows what the court’s make-up would be then. The pendulum is unlikely to have swung back toward a more civic-minded court. From a civil rights perspective, the Roberts Court is more likely to imagine their pendulum the way Edgar Allan Poe did: it’s not which direction it swings that counts, it’s what lies beneath.

    • bmaz says:

      And remember, Sotomayor is unlikely to vote against this security state BS; she is very law and order when it comes to such issues.

  8. joanneleon says:

    Looks like we have only two branches of government instead of three these days.

    How did they get Sessions to submit this amendment? Of all people, arguably the most racist senator in the U.S. I’m having trouble wrapping my mind around this. DiFi, I expected this from. Leahy? I can’t figure out what happened to him.

    Then again, if you have emails, phone conversations, text messages, etc. from every person in the U.S., and their family and friends, you’ve got a lot of power unless your target is willing to do a Letterman fess-up.

    This makes me sick.

    It would be good if Sessions was pressured by the media, by letters/calls to his office and questioned by someone on the street like Mike Stark. If he voted no on the amendment, it seems like he was signaling that he did not want to do this. With some pressure in questioning, would he reveal that this wasn’t really his amendment?

    • emptywheel says:

      Sessions was willing to do this because he never met a government intrusion he didn’t like. And he voted no because he wanted more, not fewer, government intrusions.

  9. earlofhuntingdon says:

    Using Jeff Sessions to carry this particular paper bag of bookie’s money – gutting the Fourth Amendment even further – suggests a level of cynicism comparable to Karl Rove’s. Rahm may be thinner, Obama may be taller, but it looks like they view the public with a similar manipulative, adversarial bent.

    If Rahma & Bahma used Sessions – who, no doubt, will expect a reward out of all proportion to his service – for such tasks, and DiFi and Leahy let them, would they hesitate to outsource dirty work to Karl?

  10. joanneleon says:

    From a technical standpoint, I just do not see how this is sustainable.

    The goal is to track a particular person. That would require tracking their land line (easy), their various cell phones (some through traditional telecom accounts, others through throwaways that could be bought with cash), every IP address associated with a person (home, work, cellular, library, wifi hotspots, et al).

    The IP address is the equivalent to the phone number and they are not always static, plus any given person can use a number of different IP addresses as noted above. They can also go through anonymizers.

    Now you’ve got to gather up all voice data, emails, text messages, Facebook (etc.) posts, tweets, blog posts, documents uploaded, and whatever else I haven’t thought of, and you have to store all of this and eventually make all the right associations to tie it to a person.

    Data bases are notoriously imperfect. Data bases that are heavily relied on to be very accurate, such as market data data bases (which I have some experience with) are watched and scrubbed by a small army of people and software, typically in an organization named “Data Control”. As the data comes in it is run through software that looks for irregularities and there are people who watch it and fix it.

    Dealing with this enormous volume of data, constantly growing — the challenge of even storing it is enough — making sure it is not buggered is IMO impossible.

    What this suggests to me is that the likelihood of mistakes is very big and the likelihood of innocent people getting swept up into this is very big too.

    Lastly, one of the biggest challenges in the IT world is uniquely identifying people. Social security numbers aren’t reliable. Even if you have a person’s name and address, it isn’t necessarily reliable. The simplest things can trip up a system. I’ve worked on online systems where people register as members of a professional organization’s web site. It costs money to register. When a new member would register, often they had been a member in the past but had forgotten their member ID, so they just signed up again as a new member. During the registration process, we’d do a search on the member data base to see if we could match up name, address, employer, etc. to help connect the “new member” with their previous data (certifications and other info. that would be helpful to both the person and the organization, helped with the accuracy of counting actual members, et al). It was very surprising how difficult is was to do this with any reasonable expectation of accuracy. Title searches are another very good example of how tough it is to connect data with the correct person.

    So, yes, while all of this surveillance is technically possible, I just do not see how it is sustainable and more importantly, I do not see how it is feasible to maintain the integrity of the information they want to get from this data.

    • fatster says:

      The link provided @ 6 suggests storing and processing all the data being collected will be so onerous that the entire thing will collapse in upon itself.

      • PJEvans says:

        Ah, it turns into a black hole.

        I think joanneleon has it right.
        I’m part of a GIS project; I do QC. It’s damned difficult, even with a relatively small project (we have 20 people on my end), to keep the data clean and get the mistakes fixed. We’re probably going to need multiple terabytes of storage for our stuff, and that’s before all the maintenance kicks in. We aren’t even half the full project, either: they’ve outsourced the rest to India, where I hear there’s a couple of hundred people doing data conversion (and I wish them luck, because I know exactly what they’re dealing with).
        (And one of my hobbies is genealogy: you can find a lot of data on the net, but you don’t know how good it is, or how much cleanup you’ll have to do to make it fit with your own stuff – and some of the available databases never do any cleanup and merging (and they also can go way out into fantasyland).

        • fatster says:

          You got it. I’ve had a few incredibly awful data-bases thrown at me for analysis, which couldn’t possibly be done without massive clean-up first (including going back to the original documents, fer chrissake). Always preferred to assemble my own whenever possible so I could be sure they were squeaky-clean, thus worth the analysis effort. I’m with you too on the genealogy stuff, believe me!

          Let us hope that grotesque thing in Utah does collapse under its own weight. Meanwhile, of course, evisceration of the Fourth Amendment continues apace. Why?

    • temptingfate says:

      Not trying to be smart. but as a programmer or IT professional you may be looking at this the wrong way. Much like any other behemoth tracking system the goal is not to be right all of the time, rather to box the accuracy and avoid being provably responsible for inaccuracies. Non-technical people or just investigators looking to build a case simply want to be able to answer the question: Is this information considered to be untainted? Have non-software sources been massaging the data? While nearly anyone with actual systems experience can see that the volume of date is untenable, the investigator building links for an investigation need have no such concerns. Plausible deniability is the name of the game. Showing that you’re on the job without an axe to grind is the goal.

      It won’t work if the intent is to avoid false positives but that is probably not a concern. Being able to prove in court that the IT system is the problem by the defense would call for intimate knowledge and sophisticated analysis. The prosecution rests.

        • temptingfate says:

          The designers may not care if doesn’t work if the goal is to find suitable victims. The more obscure the data and it’s sources, the better.

        • fatster says:

          How many congresscritters do you think understand what temptingfate, PJEvans, joanneleon and I are alluding to? Do you know if any congressional committees have called before them top-notch professionals in this stuff and asked for their unbiased, expert assessments of efforts such as the monstrous, costly effort in Utah? Wish they would.

      • fatster says:

        Yep. Just as people have been tortured to get them to say what Fourth Branch wanted to hear, you can so manipulate a data set that you can get it to produce results that are wanted. I had to do that once for a professor who was so eager to get certain results that she kept coming back and demanding I weight this variable and that variable and then another variable until she finally had a data set that barely resembled what we began with–but it got her what she wanted. I never did another bit of analysis for her, needless to say. I like my data clean and lightly steamed by analysis rather than cooked beyond all recognition (or FUBAR, if you will).

  11. joanneleon says:

    What are the chances that these senators have even the essence of a clue about all of these things they are voting on?

    Do we really think that Leahy understands all of this?

    • earlofhuntingdon says:

      If they don’t know, their top staff do and they have the executive summary. These sorts of machinations are extraordinarily planful. The quid pro quos expected from it are almost Japanese in complexity.

  12. earlofhuntingdon says:

    The Senate has fantastic lawyers on its payroll too. Who are their clients? This works appears to be the result not so much of tooing and froing, as just froing.

  13. Mary says:

    @28 – well, aparrently the Senate has taken to heart Obama’s argument that it is an agency of the Executive branch and they are deferring to DOJ’s determinations, just like other agencies (like when CIA destroys evidence subject to production orders in multiple courts).

    Sideways to topic – any additional votes on my long ago spec that the main reason Dawn Johnson isn’t in place yet is bc Obama doesn’t want her in place?

    • earlofhuntingdon says:

      Oh, I think that’s a given. Question is, do her views get more visibility because she does not withdraw her name or because she does?

    • bobschacht says:

      Sideways to topic – any additional votes on my long ago spec that the main reason Dawn Johnson isn’t in place yet is bc Obama doesn’t want her in place?

      Do you mean O doesn’t want her in place *now*, at this particular time, or “ever”? If the latter, he should at least have a chat with her, rather than leaving her to twist slowly in the wind.

      Bob in AZ

      • Mary says:

        way epu’d

        I think he basically tossed her name out as a pacifier and at heart he may not care if it’s never, but he will have bought himself some trouble if it is never. She’s married to Lee Hamilton’s nephew (another reason why I think it’s pretty clear that if Obama wanted her through, she’d be in by now) so I don’t think he will want to just cast her aside completely. If I had to bet (and I’m old timey Methodist on betting, so I don’t) I’d say he is waiting to get as much egregious crap out of Congress as possible, then he’ll put her in.

        IOW, if releasing pictures and engaging in illegal surveillance and torturing at Bagram etc. are all no longer matters of Executive Order, but instead Obama and Kagan have finished out their threesome with Goldmsith and adopted his policy of, “hey, our only fault wasn’t that we tortured cabdrivers to death through horrible, gruesome, group participation rituals that we encouraged and solicited, but rather that we didn’t get Congressional leglislation to back up our torture program” – – if Obama instead is getting Congressional legislation for all he wants to do, then it is “safe” to bring Johnson in, bc she’s not likely to end up touching much at that point. She won’t be typically reviewing the Constitutionality of Congressional statutes in her role at OLC.

        fwiw

  14. demi says:

    Obama is hiding behind Jeff Session’s skirts. Really? Kinda going way out there to make a point. Just like the women who do botex and implants, bleach their hair and get fake nails. It’s a long way to look good. Sorry, that’s how I see your title.

    • bmaz says:

      Fascinating. What exactly, then, would you call it when an Democratic, supposedly liberal constitutional scholar, who ran on a platform and promise diametrically different than this, uses a callous southern Republican opponent, with a history of bigotry, to carry the President’s water forward here so that the subterfuge is not associated with that Democratic President or his Democratic leaders in the Senate committee and the whole lot of them are in on the ruse? So, pray tell, what would you call that since you have such petulant indignation as to how we have phrased it?

      • earlofhuntingdon says:

        I would have expected such prissy parsing had the headline described the water carrying by Lindsey Graham.

        Given that the esteemed senator is a former Texas judge (a contradiction in terms), perhaps a better analogy is that Mr. Obama is using Sen. Sessions to sell us a bum steer disguised as legal bull.

          • earlofhuntingdon says:

            Thank you; my bad. The name Jefferson Beauregard Jackson Pickett Burnside Sessions should have been my first clue that he was from east of the Mississippi. Does Sen. Sessions, too, live on a plantation called Peckerwood? No, that’s in Georgia. Never mind. My analogy then should have something to do with ‘bama gators or football or mistaking Karl Rove’s Alabama clients for state court judges.

  15. earlofhuntingdon says:

    I think Rahma & Bahma are happy to leave Ms. Johnsen twisting in the wind or they would have cut her down from the administration’s nomination tree already. Her name and reputation are mildly useful, less to an unconvinced liberal wing than as a threat to uppity Republicans. Why Ms. Johnsen is silent for this long a time is a wonderment, though she has spoken with her feet by returning to Bloomington.

    Apart from that, Rahm must be getting adequately serviced, but if not from an intentionally short-staffed OLC, from whom? White House attorneys? They work for him/the president, of course, and not the AG and the public. Even if the work has been dispersed to other DOJ and White House lawyers, they would have to be following a common game plan. What personality is in charge of that?

    Where does the intrepid Mr. Holder fit in and why is he not going to the mat for his department’s leadership and resources? That he accepts suspended nominations like Ms. Johnsen’s, and so many of Bush’s USA’s as his own, suggests he has his eye as much on returning to private practice as on the DoJ.

  16. orionATL says:

    ew-

    if it’s worth the trouble,

    remind me and the rest of your readers about your comments on the obama admin and sessions some time back – had to do with judge sotomayor maybe.

    foresight in the whitehouse?

    kumbaya creates such wonderful political vibes.

  17. bertman says:

    what is being forgotten in all of the hoohaa over this capitulation by the Obama administration to the Intelligence-MIlitary-Industrial-Congressional Complex’s demand for total oversight is the fact that President Obama is a highly intelligent man who remembers exactly what happened to the last President of the United States who tried to restrain the overlords who really call the shots.

    Peace is War. Surveillance is Privacy.

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