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  • Which is the bigger treason?

    Posted by TM Lutas on June 24th, 2013 (All posts by )

    In all the brouhaha over Snowden’s betrayal of his NSA obligations and his country I have yet to see a serious analysis outlining the full problem with this information. The nature of the information, how and why it becomes classified. Non-classified information gathered without a warrant but not accessible without a warrant is an interesting category. Why such information should be classified at all is an under-covered question though most people understand intuitively that there’s something fundamentally wrong with the government’s approach.

    In general this information has been accessible to lawyers in legal cases, ie not classified but has had short accessibility lifespans. Traditionally it has been fairly quickly thrown away because it is too expensive for private companies to maintain that volume of metadata for very long. Test cases are now underway where lawyers who have been turned down by the phone companies as their copies have been overwritten are now seeking the NSA’s copy in an effort to defend their clients from federal criminal prosecution. Criminal law discovery rules are rushing headlong towards a collision with the national security state.

    It is not at all clear that such information should be classified at all and that the first serious crime in the Snowden case might have been committed by as yet unnamed bureaucrats who improperly classified this information to begin with, possibly leading to unjust criminal convictions and obstructing justice for years now. Overclassification is a major issue of long standing in US governance. It creates legal jeopardy where none should exist and impedes government oversight crucial to the functioning of the US system of government.

    At trial (assuming there ever is one) the government bears the burden of proving that the information was properly classified in the first place. But long before this affair ever sees the inside of a court room, we need to hash out whether this classification was proper or should see the light of day.


    30 Responses to “Which is the bigger treason?”

    1. Grurray Says:

      A serious, transparent debate needs to occur about the effectiveness of these programs outside of secret hearings and star chambers. The burden of proof is on the bureaucrats.

      Once againg we are in a situation where responsible citizens all too willing to serve and assist their country are instead suppressed and in this case spied on.

      The big problem, however, is the current poster boy for this is a traitorous pinhead.

    2. VSSC Says:

      To answer the question posed by the title – which is the bigger treason?- it’s a contest now? Reality TV?
      “Criminal law discovery rules are rushing headlong towards a collision with the national security state.”

      There is no competent mental adult who has nothing to hide. There is always something personal or embarrassing or simply private.

      Yes we can of course see the bonanza for Trial Lawyers, reporters and Blackmailers. So it shouldn’t be De-Classified, it should be destroyed prior to Discovery.

      A point Mr. Lutas you seem to have missed. Perhaps it’s an oversight.

      Snowden is a narcisstic little punk and a traitor, let’s see what happens to him. He’s embarrased powerful people, and I don’t mean DoD. [NSA falls under DoD].

    3. Mrs. Davis Says:

      I have no problem with the government collecting the data or keeping it classified. If it were not classified, it would be available under FOIA. And the information should not be publicly available. I do have a problem with the government misusing the data it receives. But I have yet to learn of any misuse by the NSA, unlike the IRS. The NSA kerfuffle is a smokescreen that covers up the malfeasance of the IRS.

      I also wonder if we will ever see Mr. Snowden at trial. How different is he from Mr. al-Awlaki? Why should he not meet a similar end?

    4. Jonathan Says:

      I have no problem with the government collecting the data or keeping it classified.

      I don’t either, as long as the data collection and storage can be accomplished without abuses of the kinds that may already have occurred, which any large collection of personal data invites. I have no idea if this is possible but I am skeptical.

    5. Mrs. Davis Says:

      abuses of the kinds that may already have occurred

      When you can put that in the indicative mood instead of the subjunctive, you’ll have a point. Until then you have a, not unreasonable, fear. There is risk in any human activity, and any person can be corrupted. When that happens, there should be penalties for those who abuse their trust and delegated power. But we have no evidence of that having happened outside the IRS, even by Snowden.

    6. Lexington Green Says:

      “I have no problem with the government collecting the data or keeping it classified.”


      Fourth Amendment:

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

      Per Katz v. United States a search is when you have a reasonable expectation of privacy.

      The government is conducting unlawful, unconstitutional, warrantless searches.

      I have a problem with that.

      So should everybody.

    7. Mike K Says:

      The problem, as I see it, is that loyal American citizens are willing to accept some secrecy of programs that are designed to intercept calls to and from foreign destinations that are suspect for enemy activity.

      To accept such a program, one must trust the people in charge to be honest agents of our national defense. The scandal of the Nixon tapes was that Nixon was not trusted, especially by the left as a consequence of the Hiss case. Even so, technology was not effective in extending that scandal beyond the White House and visitors thereto.

      Now, we have a pervasive intelligence system that seems to have been turned on the public by a government that is 100% political and willing to use any tool (IRS, EPA, Border Patrol, NSA) for political purposes. What is missing is trust. The president (I used to capitalize that word) has shown that he is willing to ignore Congress and the Constitution to impose his will, such as the NLRB case.

      This is a very frightening time and I fear that this may be beyond the point of no return. How do you get such people to surrender such power ? For the first time, the conspiracy theorists seem to have a point.

    8. VSSC Says:

      “I have no problem with the government collecting this data.”

      You have nothing that you have communicated about yourself or a loved one that couldn’t be abused? You have nothing to hide, even personal matters, financial transactions [ching ching], medical information?

      There are no penalties for abuse of this data…and if there are, that’s why the media is so valuable. You leak it to them and they ruin someone. Or you send it to your favorite taxpayer funded NGO. Like what happens to the Tea Party.

      Please have no problem with cutting the line in front of me for the delousing showers if that happens. You’ll have no problem with anything until it’s too late. Hopefully I’m not being to subjunctive here…

      I have a problem myself that certain people can cancel my vote.

    9. Mrs. Davis Says:

      What the government is collecting is the phone number I have called, or which called me, the date and time the call took place and the length of the conversation. That’s it. It used to be printed on your phone bill and still may be. You have no reasonable expectation of privacy in this information. Every clerk at the phone company can see it. And SCOTUS has so ruled. No systemic unlawful, unconstitutional, warrantless searches have been documented.

    10. Mike K Says:

      “No systemic unlawful, unconstitutional, warrantless searches have been documented.”

      And if you have called the local Tea Party office four or five times, then IRS agents come to your door. Is that OK ?

      It’s not just the NSA.

    11. Mrs. Davis Says:

      As I said in my first comment, I fear the NSA story about legal, longstanding traffic analysis by the NSA is becoming a smoke screen for the far greater transgressions of the IRS. At this point, it is unfair to the NSA to lump them together with the IRS.

      And I have had extensive up close contact with the IRS corporately in a political case. After that experience, my personal taxes are clean as a hound’s tooth. The power of the IRS to investigate you is far greater than the electronic capabilities of the NSA.

    12. TM Lutas Says:

      VSSC – The bureaucrats who decided to create this data structure took advantage of a tendency not to think these metadata issues through, depending on technical limitations and inertia to safeguard our privacy. This is obviously no longer tenable. I believe they betrayed America long before Snowden drew his first NSA paycheck.

      Yes, it’s a contest, a contest for resources and prosecutorial attention. Sorry you didn’t like my formulation. I do not believe that we have a substantive disagreement, though when you get in the weeds, you will discover that destruction before discovery is not a tenable standard without changing to a pay as you go telecom system.

      Mrs. Davis – What you did have was an expectation that such things would not be remembered too long and would be used for billing, not to turn your life upside down. Pen traces used to require some effort. It is now a routine matter that seems to be in violation of 18 USC § 3121 because they are doing everybody’s lines all the time and not individualized cases with a FISA court request for each person of interest.

    13. amspirnational Says:

      Generally speaking, if you believe America should retain its Empire, you believe Snowden is a punk and a traitor.
      If you believe it should revert to being a nation again, you believe he’s an unassuming hero.

    14. Mrs. Davis Says:

      TM Lutas, Whose life has been turned upside down?

      We are at war. There is no evidence that any information was collected in violation of 18 USC § 3121, although the limit of the law is certainly being approached. I would still allow an extension of the power to allow data mining and traffic analysis of metadata for national security purposes. In fact I would argue that what they are doing in this regard currently is insufficient as the Tsarnaev case indicates.

    15. PenGun Says:

      I am amazed that any of you thought you had any privacy. I can hack into all kinds of places I’m not supposed to be and I’m an old man. There is nothing they cannot see if they want.

      Knowing this I have conducted myself as if all my secrets were visible. Well I don’t actually have any although there are people here who would have trouble believing anyone is that perfect. I’m not. I just don’t care about anyone knowing what I have done.

      Anyhoo, you lot were well behind the patriot act and this is what you get when you go to war over a terrorist act. Blowback.

    16. Jonathan Says:

      Mrs. Davis,

      I agree that the NSA story is a diversion. The NSA staff are no doubt competent and probably not very corrupt. But who can reasonably trust the Obama administration not to misuse the NSA or the NSA’s databases as it misuses the IRS and other agencies? And why does the NSA need to archive communications data going back many years? Surely recent data are much more useful than old data for stopping terror attacks.

      There is too much temptation here for corrupt officials.

    17. Jonathan Says:

      Anyhoo, you lot were well behind the patriot act

      Many of us weren’t. And most of the people who supported it did so out of decent motives. It’s just that they happened to estimate the costs and benefits differently than the opponents did.

      Real-world decisionmaking is difficult because the real world, unlike the world of video games and moral posturing, is uncertain. You can always go back and use hindsight to pick apart difficult decisions by focusing only on the costs.

    18. Mike K Says:

      One interesting thought over at Instapundit. What if this is a false flag (so to speak) operation to plant a worm in Russian or Chinese systems ? There was one lady a few years ago pioneered coding messages, or worms, into photo files.

      Boxes inside boxes.

    19. Mrs. Davis Says:

      who can reasonably trust the Obama administration not to misuse the NSA or the NSA’s databases as it misuses the IRS and other agencies?

      A couple of thoughts.

      First, any time we give power to a government made up of human beings, we should expect it to be abused. And we should punish the abusers when it happens. But some times the value of giving power to the government exceeds the cost of potential abuse. I come down on the later side on this one. My complaint is that we aren’t getting the value we should.

      Second, I am not at all convinced the administration is responsible for the IRS abuses. I suspect the smoking gun for the treatment of the TEA Party groups will be found in the hands of a National Treasury Employees Union official. Whether the official is truly the source or merely falling on the sword for the good of the Obama administration, we’ll probably not find out for decades. But whoever is responsible for initiating action, corrupt officials will sooner or later abuse their power. The problem is when they aren’t punished.

      Third, fish rot from the head. Obama sets the tone for his administration, regardless of what orders he explicitly gives. He has signaled that his administration will tolerate illegal behavior from those supporting his cause since the NBP non-action. This was clear in 2009, but with the collusion of the MSM he was able to hide it from the public. If any administration has this kind of attitude, there will be abuse, and it doesn’t matter how little power the government has. People elect the government they deserve. Let’s hope we do better in 16.

    20. PenGun Says:

      “Real-world decisionmaking is difficult because the real world, unlike the world of video games and moral posturing, is uncertain. You can always go back and use hindsight to pick apart difficult decisions by focusing only on the costs.”

      It is because it really is impossible to gather _all_ the threads and make bullet proof decisions about anything as complex as the modern world, that you need your moral compass.

    21. Michael Hiteshew Says:

      I am very, very, very uncomfortable with our entire surveillance society approach to terrorism. We are actively building the machinery of a tyrannical police state and won’t we all be shocked when it’s turned on us instead.

      Citizens who disagree with the ruling party and collude to remove them from power are a far greater threat to the ruling regime than any terrorist – and that’s their primary concern at all times, their hold on power. Therefore, that machinery will primarily be used to quell political opposition. See any tyranny/police state in the world or in history for examples. To believe otherwise is, I think, naive.

      (BTW, I am another who was, and still is, opposed to the Patriot Act. For these very reasons.)

    22. setbit Says:


      Real-world decisionmaking is difficult because the real world, unlike the world of video games and moral posturing, is uncertain. You can always go back and use hindsight to pick apart difficult decisions by focusing only on the costs.

      Please tell me you’re not saying that the existing abuses of the Patriot Act were not easily foreseeable at the time of its passage.

      Because the opposite is true. The reaction a citizen or politician has to poorly conceived legislation like the Patriot Act (or the ADA, or Medicare Part D, or the TSA, or Obamacare, ad infinitum) is an almost perfect indicator of their political competence. Unaccountable power will be abused, loopholes will be exploited, open-ended budgets will grow, unrealistic goals will be missed. To think otherwise is to be ignorant of the human condition and human nature.

      The U.S. Constitution was constructed in an explicit attempt to avoid and prevent the kinds of abuses that we are now experiencing. Whatever our fate, we can’t say we weren’t warned.

    23. Jonathan Says:

      Mrs. Davis,

      I agree about fish rotting from the head, but I think this means that Obama is responsible for the IRS abuses even if he didn’t order them. He benefited from them, could have stopped them, and as chief executive is responsible for what happens on his watch.



      I mostly agree with you. I opposed the Patriot Act because I thought it wouldn’t do much good and would inevitably be abused. My point was merely that I think most supporters of the PA were well intended if misguided.

    24. Mrs. Davis Says:

      I agree about fish rotting from the head, but I think this means that Obama is responsible for the IRS abuses even if he didn’t order them. He benefited from them, could have stopped them, and as chief executive is responsible for what happens on his watch.

      I agree completely with you, but (not to be snotty) so what? This is political problem. The people voted for him. They have to live with the consequences of their decisions and hopefully learn from their errors. I am not optimistic about this nor enthusiastic about the growing popularity of democracy instead of a balanced government. Further, every progressive amendment was a mistake (suffrage should have been extended to women by the P&I clause of the XIV amendment.). But the only one repealed was the one about booze. Perhaps I’m becoming a curmudgeon in my old age.

    25. setbit Says:


      I think most supporters of the PA were well intended if misguided.

      Technically true — and maybe I’m also getting cranky in my old age — but the tired “I didn’t know the gun was loaded” excuse cuts exactly zero mustard with me these days. Doubly so in this case when so many of us were on record trying to tell them the gun was loaded.

      Someone who tries to fix their own transmission and ruins it is well intended if misguided. Someone who takes it upon themselves to sign away my Constitutional protections is a dangerous fool, and arguably a traitor.

      I say that not because I want to pass moral judgement on such people; I just want to stop them sending us all down the road to hell with their good intentions.

    26. TM Lutas Says:

      Mrs Davis – We’ve gone down this road before. Will we really need to wait the decades it took to get studies done showing that London CCTV cameras spent a disproportionate amount of time on young, attractive women’s rears and breasts? At least the CCTV footage wasn’t classified.

      In this case, mapping out connection networks of political opponents is so obvious an illicit benefit that it’s highly unlikely that we’re going to escape that use. Any security system that let Snowden escape with his evidence is lax enough to let the whole database walk out. This capability is ripe for abuse and is not necessary to keep us safe because there are better pathways to do that.

    27. Jonathan Says:

      Setbit, I don’t know how to stop them. They won’t listen to us and we can’t keep them from voting. Meanwhile we have to live with them. No easy solutions here.

    28. veryretired Says:

      It is not just the current regime, it is not just the IRS or NSA or the EPA, it is not just about privacy, or politically motivated interference, or politically motivated regulations—it is not the bits and pieces, but the total effect on our cultural environment that matters.

      The state, at any level one cares to examine, is out of control. The cadres seriously believe that they have a mandate to enforce the various progressive theories about our society regardless of any statutory authorization, the head of the regime believes he can rule by directive, and the congress sees no limits to its power, even if there is an occasional feeble protest by some elements of the supreme court.

      The ruling oligarchy in this country has brought us to the brink of insolvency and cultural dissolution, and we sit around at our keyboards and argue, endlessly, if this bit of the poisoned brew is still potable or not.

      These supposed experts and elite leaders are hollowing out the most prosperous and free society in history from within, and when it collapses, will be loudly proclaiming their innocence and good intentions, while pointing their demagogic fingers at the usual scapegoats.

      They don’t know what they’re doing, and never have.

    29. Sgt. Mom Says:

      What Veryretired said.

      The political elite will walk away from the disaster they have created, loudly proclaiming their innocence and their good intentions.

    30. TMLutas Says:

      Documenting what is going on to make such protestations of innocence impossible to make successfully is a major motivation for my project, citizen intelligence