Yo, that's some wicked spin ya' got on that sentence of yours.

Implying the slightest good intention to Obama in these circumstances seems deplorable.

If Obama didn't want to enforce the program, he could have stopped when it was secret and no one could complain. If there's an objective "guide" to Obama's supposed intentions, it's what his administration did in secret because they had very few controls on their surveillance approach.

The better to describe thing is: He'd like to continue program and he'd like to have it declared constitutional.

And don't bet this won't be declared constitutional given the Supreme Court's history and it's entanglement with the current system. Sure it would be lighting the constitution fire, tearing it, vaporizing the pieces and throwing them in a volcano. But hey, that's progress.

I'm of the naive opinion that he is not a sleeper muslim communist agent bent on destroying America; that he really wants to do the best he can for America.

He's not always right in his beliefs, but has been public about his intentions, e.g., continuing engagement in Afghanistan.

If his "true self" doesn't match his actions... frankly, that's hardly even a "defense", that's just further damnation.

As far as I'm concerned, you elect an authoritarian on the left, to pacify that side, and pass authoritarian policies. To say that they're really good guys, and shouldn't be held accountable, is defending the status quo IMO.

Obama and the Supreme Court are pro authoritarianism, and will not question more power, nor will they dismantle it.

And if he's not acting in malice, why would he be doing what he's doing now when he is well-versed in the Constitution?

Note: I disagree with a lot of his policies (including this topic), I'm going for a first-principles thing here.

There have been many opportunities for him to break through that bubble - it's not like there has complete silence on the issue. And what kind of President oversees constitutional breaches of this magnitude and then manages to overlook the entire issue? It's too big, too serious and too illegal for him to be some sort of innocent participant.

The relentless pursuit of whistleblowers, his unwillingness to address the NSA/4th amendment/etc debate on its merits, lack of movement on key policy fronts (anti-drug policy, DHS, serious financial system reform) - all of it indicates to me that while he is not a Muslim Communist Terrorist Baby Killer, he also does not espouse any of the left of center beliefs he held as a younger politician, and for someone who voted him in to see symbolic leadership and practical progress on all these issues, he has been a huge disappointment.

I personally will be campaigning heavily for independent candidates at most levels of government in the future. I will certainly never vote Democrat again. For someone who campaigns, votes, and participates in all areas of civic life, these last few years have left me very disillusioned.

I'm pretty sure Obama is better informed, has a more thorough background in constitutional law, and has spent significantly more time thinking about these issues than just about anyone in the crowd here on HN.

It's the unintentional collection of data on U.S. citizens that is politically damaging. However, he can't kill that part of the program himself as it totally hobbles the NSA's foreign surveillance capabilities--it's very hard for them to correctly screen out U.S. citizens. To achieve a 0% false positive rate, they'd probably have to throw away 99% of traffic with today's techniques.

So he'd either like the courts to do it for him, or for them to validate the approach (as you say). Showing that NSA data is being used to prosecute a terrorist is a political win, either way.

from: https://www.eff.org/deeplinks/2013/01/new-year-new-fisa-amen...

While most laws exist simultaneously in the distinct (and sometimes even contradictory) forms of statutes, rules, and operational norms, foreign intelligence laws start out by necessity with fuzzy statutory foundations, and end by necessity with secret operational norms. This situation is indeed exacerbated by the DoD's (and, I suppose, FISC's) unwillingness to be clear about its rules and rulemaking process.

But this is an article about the use of surveillance evidence as criminal evidence. So, my refined question would be, in what sense does this executive branch have secret rules or norms that apply to the criminal justice system?

Thomas - I can't help but feel that you're using words and definitions (aka splitting hairs) to defend something that should not be defended here. With enough effort, almost any unethical behaviour can be made to look justifiable given the circumstances, the complexity of the world, etc etc.

In my experience, I've found that a much quicker test of ethics is using the incredibly powerful subconscious brain that we have evolved with, which allows us to make pretty quick decisions about issues of right and wrong. In this case, it's pretty clear which side is wrong and needs to be brought to task and examined more closely. In no way can you possibly suggest that the level of mass spying that the NSA/GCHQ are engaging in is on the right side of the ethical line in the sand and retain any credibility as... as a human being.

As for the hair-splitting, I can engage in that too:

> So, my refined question would be, in what sense does this executive branch have secret rules or norms that apply to the criminal justice system?

Because the executive branch created the secret spying system and then allowed it to feed into the criminal justice system as a secret source of information. Whether or not they knew about the "parallel construction" (which I prefer to call "lying to the judge's face"), they were an essential element of it. Probably they knew, given how sensitive it is.

Irrespective, though, these people have done nothing to earn your staunch support. Have they?

It's not a case of innocent before proven guilty. First of all, we're talking about a state, not a person. Secondly, there is overwhelming evidence of guilt.

tedivm: blaming congress is an easy way out. Congress themselves have complained that the executive branch has been overstepping the boundaries it had set in secret.

you: really? evidence?

logn: here you go. Senators have repeatedly complained that the laws are being deliberately misinterpreted.

you: blargh! laws exist simultaneously in multiple forms, you can't possibly expect them to be applied exactly as they've been phrased!

There's a word for that: apologism. Why are you stooping to that? Stop defending those who don't deserve your efforts to defend them.

You're a highly reputable security expert and founder of a highly reputable security business. You have enormous credibility with the HN crowd and outside of it (hell, you're the top commenter on https://news.ycombinator.com/leaders by karma, by 70'000 points!). But with every one of these comments in which you defend these people for no reason other than wordplay you lose a little bit of that reputation, at least with me.

You seem to be worried that people will be persuaded by tptacek just because he's tptacek, rather than by the content of his comments. But, somewhat ironically, you're helping that process along by being so emotional when countering his arguments. E.g. I wouldn't want to associate myself with what you're advocating: "Don't think. Trust your feelings." So even if there's some truth to what you say, it's obscured by the way you're expressing it.

EDIT: I've figured out what's upsetting about this exchange. You're not trying to change his mind. That would require you give him some credit, and you seem unable to. You're just trying to attack him (poorly). If forum members don't resist that sort of feeling, then forums will degenerate into flamewars. Therefore what you're doing now is poisonous to HN.

I am worried that every time one of these arguments pop up, tptacek suddenly sprouts fifteen heads like a hydra and starts defending "the system". That worries me, because I don't understand why he feels that is worthy of his time, and none of the explanations I can come up with are satisfactory in view of his standing in the community.

Volumes of comments can appear convincing even though they are made by a single person (I've experienced that in flame war situations).

Edit: Perhaps. In any case, I need to go now, so I'll stop and let this rest. That said, I'm still worried.

Also, your summary of the thread so far is very inaccurate.

As for your summary of the conversation, here is what actually happened:

* The story is about DOJ adopting a policy of providing notice when evidence in a case is derived from surveillance intelligence.

* The top of the thread suggests that this was a politically good move for Obama, who is (according to that commenter) essentially required to execute surveillance policies set up by Congress.

* The comment I replied to refuted that argument by suggesting that the Obama administration has little respect for the laws of Congress to begin with.

* I replied by suggesting that refutation conflated a lack of transparency in an area of law specifically designed by Congress not to be transparent with a general contempt for the laws of Congress, which contempt is not actually in evidence. I also, as you pointedly refused to acknowledge, expressed dissatisfaction with that state of affairs.

* Various commenters cited evidence of a lack of respect for the laws of Congress which were, to my eyes, all further evidence of the former point (opaqueness and "flexibility" in an area of law that was designed to be opaque and open-ended) and not the latter. I then refined my comment to be about criminal law, which is the subject of the story the thread is based on.

* Along comes 'swombat to tell me that I'm an apologist for the state, a not-credible human being, and at risk of putting my professional reputation in doubt.

I think a close reading of the thread will bear my interpretation out, and, more importantly, show how different that interpretation is from the one you provided.

It was a mistake to post this as a thread on a public forum, and I apologise for that.

I think you should be wary that other people might form the same impressions that I've formed, and perhaps be more exact and clear in your responses. For example, you say you meant to say:

> I replied by suggesting that refutation conflated a lack of transparency in an area of law specifically designed by Congress not to be transparent with a general contempt for the laws of Congress, which contempt is not actually in evidence. I also, as you pointedly refused to acknowledge, expressed dissatisfaction with that state of affairs.

When what you said was:

> It's clear to me (and I hope everyone) that the executive branch and particularly the DoD is not transparent.

> While most laws exist simultaneously in the distinct (and sometimes even contradictory) forms of statutes, rules, and operational norms, foreign intelligence laws start out by necessity with fuzzy statutory foundations, and end by necessity with secret operational norms. This situation is indeed exacerbated by the DoD's (and, I suppose, FISC's) unwillingness to be clear about its rules and rulemaking process.

> But this is an article about the use of surveillance evidence as criminal evidence. So, my refined question would be, in what sense does this executive branch have secret rules or norms that apply to the criminal justice system?*

I still don't quite see where you point out that there's a conflation of "a lack of transparency in an area of law specifically designed by Congress not to be transparent with a general contempt for the laws of Congress, which contempt is not actually in evidence". Perhaps I'm not smart enough to read between the lines, but then that's probably the case of others too. What it sounded to me was a get-out clause for anyone to ignore the laws (roughly equivalent to the statement "no one can possibly know exactly what was meant by the people who wrote the law, so those who vigorously stretch the meaning of those laws are perfectly in their right to do so.").

Surveillance is a touchy topic for many. It can get people emotional. I'm sure I'm not the only one who feels that the society that is currently forming thanks to those laws is a direct existential threat - i.e. that if those people win the game entirely, I (and you) will either have to join them and give up our freedom to choose to do the right thing, or give up our lives. I'm sorry I brought this up in a public forum rather than via an email, but I think you should be aware of this possible reactions to what I (and perhaps others) sometimes perceive as a vigorous defence of the government surveillance programmes.

Happy to continue this conversation by email if you wish to do so. My email is on my blog, at swombat.com.

Also, I personally don't think it's unfair to occasionally call out people individually when they've reached epic commenter status... people do it to pg all the time, and anyone who's in the public light gets this, and tptacek has reached that level on HN. And the great thing is, we're all here to hash these concerns out... ah, if only people with real power (politicians and corporate elite) were so accessible.

However, when it comes to ethics, in the vast majority of cases, your gut judgement points in the right direction - at the very least in terms of deciding that there's something bad going on here that should be investigated further.

It is impossible to honestly look at the facts we currently have and declare that the current state of affairs is not seriously fucked up and needing a lot of attention, transparency, and probably purging.

There have been plenty of people throughout history that had no problem subjugating other people for their own gain, and I do not believe they all knew at some level that it was wrong and chose to ignore it.

The point of both rational and passionate discussion is to change personal beliefs. If enough people are swayed, then changes in familial, cultural and societal beleif structures may follow.

In other words, many people may implicitly trust the government, and their gut feeling may be that all is well.

You do realise that this is exactly what our ethical and moral systems are based on, right?

Ethics does not exist in a vacuum. It is a function of our societal, cultural, familial and personal beliefs.

Ultimately, no matter what rational argument you might make to yourself for (let's use an extreme example) killing an innocent person, taking their stuff, raping their daughters, hanging their sons, burning their village and drinking wine in their skull, you will feel that that's wrong, and you will avoid doing so if you can. Even if you were magically transported in some kind of viking environment where this is perfectly reasonable behaviour according to everyone around you, your moral compass, which comes from those beliefs that you have accrued and which largely define who you are, would (I hope) make you feel very bad about doing this, and it would take an enormous effort (or a deranged mind) to slip from the relatively civilised present into such an environment without any difficulty.

Certainly there are people whose moral compass is totally fucked. Sociopaths/psychopaths come to mind. However, I am operating from the assumption that I am not one of those people. I can prove that to myself through simple observation of my life.

There are certainly biases in the intuitive shortcut for ethics. As I pointed out before, it doesn't work well when the topic is very emotional (which I guess you could say surveillance can be for some). Also, as you rightly point out, it is not very adaptable to change. This merely means that when faced with a new situation, if you're not used to evolving your morals with the times, you need to make an extra effort to do so. By now, when faced with new things I tend to react first conservatively (I am but human), but then quickly by accepting that there are many good things in the world that I'm not aware of, and that difference or unfamiliarity are no reason to condemn.

Intuition is a really powerful tool. I strongly encourage you to test its uses and limits for yourself, and see how you can get this amazing tool to work for you, rather than ignoring it and relying purely on analytical thinking that can be explained to others.

Intuition used as a direct reason for action puts us in the realm of lynch mobs and herd mentality. It is indeed a powerful tool, and as such has great power over us. I think the best check we can put on it is the rational mind. If you can't come up with a rational reason why you feel a certain way, maybe it's in fact your intuition that needs to be put in check. That was really the reason for my response. I have an immediate negative reaction to appeals through emotion. That's not to say that what you are arguing for is wrong, just that I refuse to take a feeling like that as a persuasive argument, as surely with a little time a more coherent argument can be formed, and if not, then that's definitely reason for pause.

I'm a little shocked to hear such a remark coming from you. You've historically been thoughtful. I can understand if you're just having a bad day, but there's nothing that could possibly be gained by talking down to someone like that.

which allows us to make pretty quick decisions about issues of right and wrong

Also, this second half is just nonsense. If you believe you're thinking for yourself, but your decisions about ethics are always quick, then you probably aren't. You're probably letting society's moral fashions determine your belief system for you.

Re: thinking methods - analytical thinking is not the only way to think effectively. Logic has its limits. I am loathe to shift the discussion to a meta-argument about thinking approaches. But here goes...

It has been my experience that intuitive thinking can arrive at useful conclusions faster than analytical thinking. It is in fact the way that most people function (though I'm not defending it as a general approach) - by jumping to a conclusion and then rationalising it.

However, in some cases, this intuitive thinking (described but not fully discussed in "Blink") can be useful. Blink itself gives a number of examples where it works. In my own experience, the areas where it is most effective are:

- ethics: whilst I have on occasion changed my mind from my initial intuitive ethical stand, that has been rare and usually involved a shift in fundamental assumptions and world view, not just an argument.

- judging people: in hiring, in particular, the few times I have hired someone that I didn't get a good feeling from almost instantly, I have regretted it. Same for dating and other people interactions.

- business risk: while a good feeling is not sufficient to make a decision, getting a bad gut feeling about a business decision seems (across many successful entrepreneurs) to be a very good reason to pull out of a deal or other situation immediately without further discussion. I've certainly seen that in my experience too.

There are other contexts - and also contexts where this kind of thinking definitely doesn't work, like relationships, for example, which are way too emotionally charged - but I think this will do for an HN comment.

It considers itself above the law to the point of being able to kill Americans without trial.

That aside, 40 years ago the NSA stated that it was above the law because it was created by Executive decree and tus not bound by statutory law:

"NSA does not have a statutory charter; its operational responsibilities are set forth exclusively in executive directives first issued in the 1950s. One of the questions which the Senate asked the Committee to consider was the "need for specific legislative authority to govern the operations of...the National Security Agency."

According to NSA's General Counsel, no existing statutes control, limit, or define the signals intelligence activities of NSA. Further, the General Counsel asserts that the Fourth Amendment does not apply to NSA's interception of Americans' international communications for foreign intelligence purposes." [1]

[1] Church Committee Report on NSA Surveillance Affecting Americans (1975)

https://news.ycombinator.com/item?id=5920793

Your quote about the NSA has nothing to do with criminal evidence.

Edit: badly worded.

But if what we're talking about is the idea that a clearly-defined Al Qaeda target operating in a territory that is self-evidently fertile ground for the operation of paramilitary death squads should somehow have been served with some kind of due process notification rather than being sniped from orbit, I'm less sure I'm on the same page with you.

For one thing, drone strikes kill far fewer people than ground operations do. Read any story about soldiers operating in middle eastern theaters (or Vietnam, for that matter) --- hell, read accounts of Army Ranger squads operating in theater --- and I think you'll see where I'm coming from. Somebody's old grandfather sticks his head out a window looking to see what the commotion is at the wrong time, and blam, he's a target. Ground combat (at least as long as it's conducted by humans on the ground) is necessarily horrific and anything that spares both sides those horrors is at least worth considering.

So that's a little shotgun blast of my thoughts about drone strikes.

As long as there have been states, there have been "non-state" actors that field real, no-shit militaries, with which to go to war.

The most famous example from history is the scourge of piracy on the high seas. You'll note that ships that would hoist the Jolly Roger would be treated with a military response, not a police one.

So, the legal framework for drone strikes against non-state belligerents is not nearly as nebulous as it's made out to be. In fact there's actually quite a bit of precedent within international law.

> Your quote about the NSA has nothing to do with criminal evidence.

It shows historical patterns of gross negligence in observing legalities by the Executive Branch that lead to things like killing your own citizens based on your own "evidence" without benefit of a trial.

They are not forthcoming about what the interpretation might be because it's exempt from FOIA. https://www.aclu.org/files/assets/patriot_act_section_215_fo...

So, the safe thing is to assume that anything permitted by Section 215 is actually being performed. In other words, the executive branch is not expanding the law, but they are refusing to detail what specific areas within the law they are paying special attention to, since that would simply be a blueprint of areas to avoid.

If the executive actually is being allowed by the judiciary to do things which are outside the scope of the public law (incl. section 215) then that's a serious matter indeed. But we don't typically demand that the executive always detail the implementation plan to implement the requirements of the law.

Imagine being able to call the police department and get an exact list of DUI enforcement areas along with exact times for weeks in advance.

I dunno. I can think of two interpretations of this one phrase "protect against international terrorism or clandestine intelligence activities".

It's not a secret law. It's just how they interpret it (and even without the secrecy, would it be that surprising to find they consider their actions constitutional?)

That's a strong statement, one that I don't believe has any support other than campaign rhetoric (ie: no real support)

One only needs to look at the signing into law of the patriot act extension and the NDAA to see that Obama is in no way different than Bush when it comes to these sorts of laws.

Reading the original article this appears to have absolutely nothing to do with Obama and any of his campaign promises of rhetoric, but everything to do with Mr. Verrilli discovering that the argument he made to the SCOTUS (ultimately leading to the dismissal of the case in favor of the DOJ) was based on a lie and/or is no longer true.

Citation needed. So far I haven't need Obama even imply that he doesn't actually want these programs. All that he has said or implied so far was that we need to accept the mass surveillance, because that would be a "balance" between privacy and security. He believes this is a the "balance" - regardless of its constitutionality (and so far the administration has done everything in its power to fight against cases that question the legality of it all).

Also, Dianne Feinstein explicitly said the Obama Administration wanted FISA Amendments Act to be renewed, too, when she asked Senate to renew it last year.

Remember?

http://youtu.be/aznaD8yzVjM

The FISC has found that there have been numerous violations by NSA et al, yet the juggernaut rolls on...

Secret courts. Secret police. Secret orders.

"... this is not who we are."

Obama has expanded the war on terror to several new countries, and oversees assassinations by drone regularly. He may talk convincingly about civil rights, but he has overseen the expansion of a system denying people those rights, and I have no doubt he is completely aware of just how pervasive and unconstitutional these surveillance programs are but has no intention of changing them, just as he has no intention of winding down the war on terror (as shown by his actions, not his words).

Then the last step of this terrible spiral will be unscrupulous intelligence officials planting digital evidence to make a case or do "what is right for the country."