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This comment has been posted, on behalf of the Cryptocloud team, in response to Bruce Schneier's excellent summation of the NSA scandals thus far. It reads (or will read, if it ever escapes moderation jail) as follows, verbatim:
One federal prosecutor - an Assistant U.S. Attorney - doing her job could shut this whole thing down. Those prosecutors are sworn to uphold the Constitution, and sworn to protect citizens from criminals by enforcing the laws evenly and consistently. They can empanel grand juries, seek indictments, issue subpoenas, move for contempt of court citations, supersede indictments with new charges... remember, all of these high-powered tools are deployed hundreds of times a day in America ("land of the free," or used to be anyhow).
The funny thing is, these high-powered tools are mostly deployed against people voluntarily selling drugs to each other - victimless crimes. And they're disproportionately deployed against minority groups: read "black people, and Mexicans too" instead of "minority groups," and you'll be pretty close to the truth.
Anyway, federal prosecutors have almost limitless power to enforce the law. They have the U.S. Marshalls at their beck and call, they can suborn resources from just about any state or local law enforcement organization in the country. They can force overseas entities to cooperate, or face criminal charges themselves. They can demand documents, threaten indictments against family members, jack up charges to put defendants' entire lives at risk if they go to trial and lose. They can force people to change their stories or go to prison for decades, to testify against their friends, to betray their families, to lie under oath just so the prosecutor approves of what they say. They do this every day, day after day, in the country they serve. It's called "the rule of law" - American style, anyhow.
So why on God's green Earth can't a SINGLE federal prosecutor grow a backbone and indict a SINGLE NSA employee for breaking federal statutes - felonies - hundreds, or thousands, or most likely millions of times per year? Not ONE indictment? Not one single person actually held accountable by, you know, the laws: courts, prisons, police... that sort of thing.
If that country were functional - which it isn't, clearly - Alexander the Geek and James 'pantsonfire' Clapper would be named as kingpins in a criminal RICO indictment going after hundreds - or thousands - of NSA co-conspirators. Threaten a few of those "just doing my job" fascism facilitators with a decade or three in prison, and they'll roll on Clapper and his lying co-conspirators: and when they roll, the truth will come out. ALL of the truth, not just what Snowden could grab on his way out the door (before the US chased him around the globe for daring to speak that partial truth).
Once the minions started rolling, and the truth started coming out, we'd see what these clown-suited jackbooters have really been up to: spending billions of dollars of our money (secretly), building massive surveillance systems (secretly), targeting anyone who dared expose them for the frauds they are. This is how we do it with drug organizations and Mafia families, right? They have sort of a "secrecy" fetish, too - but the AUSAs of this country do juuuuust fine getting past that. Every. Single. Day.
The fact that not a SINGLE prosecution will result from the disclosure of criminal behavior on a national, multi-billion dollar scale - except for Snowden being prosecuted for blowing the whistle on it, "naturally" - is a disgusting, nauseating, astonishing disgrace. It shows that the country has fractured, and is now governed not by law but by access to power, or money - same thing. "All power flows from the barrel of a gun," Mao observed - and Alexander apparently has enough guns that nobody has the balls to actually apply the law to him.
Like, you know, how they apply the law to young black men who get caught "conspiring" to sell a couple of rocks of crack to someone on the street corner... and go to prison for a couple of decades. That kind of "rule of law" - the American kind.
It is absolutely unacceptable - disgraceful, laughable, in-conceivable - that these criminals will walk away scott free, leaving their country in a shambles. Nope, not possible. One RICO case - or a couple of dozen - will be a good start. Every AUSA that doesn't pursue these cases should be hounded into an early resignation: they clearly don't give a shit for "the rule of law," or the constitution of this country, or their oath to uphold both. And, as such, are unqualified to hold the job - and draw the fat, taxpayer-funded paycheck they do (plus vacation, and retirement, and car allowance, and dental, and medical, and and and...). Resign - and let someone be appointed who doesn't lick boots for a living.
There's hundreds of them, these AUSAs. They style themselves "courageous," "uncompromising," "honourable," and the whole ball of yarn. Excellent - prove it. The NSA's criminal activity touches every corner of that country (and, indeed, the world): every state, every city, every neighbourhood. So every federal prosecutor has jurisdiction.
For the two million plus American rotting in prison right now, whilst Clapper lies to Congress and walks home to collect his taxpayer money for doing so, this is reason enough to riot until the fences fall: they're subject to "the law," but the thousands of admitted, verified, documented criminals at the NSA aren't... because they like keeping secrets? Bullshit. Bull-steaming-shit. The tools are there to put those totalitarian twits in prison for life. The laws exist. The courts exits. And there's certainly enough prisons in America to hold every Dog-damned one of them (might have to let a few pot smokers loose to make bunk space... oh, well). So what's the holdup?
That's where the pressure should be. Americans should be calling their prosecutors at their cush offices, demanding they enforce the law. Americans should be picketing their nice homes in nice neighbourhoods - paid for with taxpayer dollars, borrowed from future generations of Americans and stolen from the First Nations - demanding they do their jobs. Americans should be in front of every federal courthouse in the nation, demanding the courts apply the laws to these peeping-Tom perverts with just as much aggression as it's applied to some Mexican kid walking across the desert without the right paperwork in his hands.
Until it is, this country is not a civilization. It's a barbarian state - where those who have more gun barrels do whatever the hell they want, and those without risk life in prison if they fail to toe the line. Stalin would appreciate the dynamic, very well. Mao. Goering. Tito. They all operated along the same logical pathway: I have power, therefore I can do what I want and others who oppose me will suffer.
America - were it not sick, and corrupted, and drugged by decades of comsumerist gluttony - would grind to a halt as Americans demanded the rule of law be reinstated, and retained for future generations. The fact that America rolls on - eating Big Macs and jacking up the Earth's temperature a few more degrees every year along the way - says all that needs to be said: a once great nation, fallen to mere parody of itself.
One federal prosecutor with a backbone, just one. Where is she?
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A reply to an interesting discussion of the above-quoted rant (authored by yours truly), in r/privacy:
Being the author of the aforementioned rant - and it is a rant, with all the good and (mostly) bad that comes with it - a few clarifications in how I see this:
1. If you think AUSAs lack the independent capability to launch federal RICO cases, via the convening of a Grand Jury to investigate prospective crimes, take a look at the jurisprudence around the term "prosecutorial discretion" as applicable to AUSAs.
2. Possible crimes committed, and conspiracies relating thereto? There's quite simply so many separate instances of violations of federal wiretapping statutes that I'd not know where to start enumeration. Broadly speaking, gaining access to electronic communications absent a warrant is a federal felony. Whether the "warrants" issued by the kangaroo FISA court for "every record you can think of" actually stand up as legitimate warrants under the relevant 18 USC statutory language is something an aggressive AUSA could certainly litigate. That there has been extensive wiretapping even _beyond_ the FISA kangaroo court authorizations is also now well documented. In terms of individual felony offenses committed under wiretapping statutes, we're conservatively talking in the millions.
2(b): The aforementioned isn't merely an example of "I don't like the NSA so I'm going to say they are 'breaking the law' when they do what they do." Rather, it's the application of statutory language - relating to electronic communications and the intentional interception and/or storage thereof - that is clear, direct, and has been the law of this land for decades. Real people actually go to prison if they violate these laws. They are not hypotheticals.
3. An earlier poster referenced "intent" as an essential element of criminal prosecution. Historically yes. However, in recent decades federal jurisprudence has been wrenched away from intent (mens rea) as relevant. Now, you can go to federal prison for doing all sorts of things - whether you have any intent to break the law, or not. Drugs in your car? You're going to prison. Didn't know they were there? Tough shit. You should have (see also: "constructive possession"). Whether employees of the NSA "intended" to break wiretapping laws doing what they did, or not, is non-dispositive. If you meet the "predicate elements" of a federal offense, then you've met the standard of guilt. Sure, you might try to get the jury to understand that you didn't mean any harm or to break any laws... if they judge even allows you to make the argument (see: Chelsea Manning). But the statutes have been polished to a sharp edge, specifically to minimize the efficacy of this defence. It's been done to ensure low-level crack dealers get convicted and go to prison for decades, sure - but it also applies to NSA goons. There's no statutory exemption for them.
4. Committing a crime during the regular discharge of one's duties as an officer of the federal government - or the military (quite a few NSA folks roll up under military chain of command) is historically cause for HIGHER penalties, rather than an excuse to get away without punishment. It's called abuse of power, or rather criminal action "under colour of law." It's why a cop who rapes a girl he abducts in his police cruiser is (supposed to) get the most severe punishment, as compared to a real person who does such a terrible crime in the regular exercise of their regular citizen's power. Because cops (and other such empowered individuals) have been "loaned" power by the citizens above and beyond that afforded to the rest of us, the burden on them to exercise that power with integrity is enormous. In theory, anyway - and historically that was the case.
5. The poster is entirely correct that AUSAs report to a boss - the U.S. Attorney for a given region. She, in turn, reports to the AG - Holder. So there's a chain of command, and an AUSA could be fired for initiating a legitimate RICO case against NSA honchos... but this is way out of pocket relative to how it's "supposed" to work. Recall when Gonzales fired eight (from memory) AUSAs in the 2000s, under Baby Bush, because they were insufficiently partisan in their approach to political prosecutions (fundraising, etc.). That was - legitimately - a scandal. Prosecutors are NOT supposed to be fired because their boss disagrees with their exercise of prosecutorial discretion. Which of course conflicts with the concept of a "boss" and the chain of command - intractably so. Thus, the poster making this criticism is in fact entirely correct. An AUSA taking on the NSA could well be fired - blacklisted, even. But... let us be clear: the case would be epocohal, even if she were fired early on, with the Grand Jury just convened.
5(b): Further, every AUSA takes an oath to apply the law and uphold the constitution. A failure to apply the law because she fears for her job if she does so is, simply put, a violation of her oath of office and a disgrace. Do prosecutors avoid filing some cases because their boss makes it clear they are "politically unpalatable?" Yes, of course - but every time that happens, it's a disgrace that never should have taken place. When we, as a country, ACCEPT that such things are "routine" and thus unavoidable, we've essentially tossed the concept of rule of law in Fukayama's apocryphal "dustbin of history." No thanks.
6. Federal criminal law - and its relevant jurisprudence as implemented by the courts - is astonishingly, recklessly, disastrously broad-brush, vague, and application-dependent (see: CFAA, Aaron Swartz). This has been done, first in the 1970s to "fight organized crime" (lead by Rudy Guiliani, at the time a crusading AUSA - ironically), and then in the '80s by Reagan and his cronies (remember James Watt?) to put black people in prison for victimless drug "crimes" (I accept this is a somewhat less-than-unbiased summation of Reagan's "drug war" agenda - but I assert that it remains fundamentally true)... finally, Clinton sort of went along with the Newt Gingrich ride and expanded these noxious concepts as they crept deeper and deeper into federal criminal practice.
Nowadays, if an AUSA decides to indict someone, there's a 99% chance they'll end up convicted. The number of cases that go to a jury and are won by defendants, at the federal level, are statistically minute - and in many such cases, corresponding charges are re-filed via clever/sneaky tricks (either at state level - where "double jeopardy" has been found to be inapplicable wrt Fed cases) or in another federal district via a different AUSA using a subtly different charging strategy. Jeremy Hammond was threatened with 10+ trials on the _same_ underlying charges, district by district, if he dared to fight his case - even if he won every one, he'd be on diesel therapy for more than a decade in the process.
So, yeah, fighting the Feds has been - intentionally - turned into a nearly hopeless effort. (this is very, very different at the state or local level - just to be clear; it's a Fed phenomenon, resulting from the massive growth in Fed power and access to resources, overall - see: Sentencing Project)
Point being: these changes were done to make it very easy for AUSAs to functionally act as judge, jury, and executioner. Today, they have enormous latitude to convene Grand Juries, tailor indictments, supersede indictments, add new charges, compel witnesses to testify, reward "cooperators" with enormous benefits, punish "uncooperative witnesses" with prison or destitution, and functionally set eventual sentencing via careful charging decisions so that mandatory minimums apply and/or sentencing enhancements with their own mandatory minimums are applied even if the underlying charges are not subject thereto.
- - -
A crusading AUSA, today, could wreak havoc on the NSA's criminal conspiracy.
Yes, she might be fired in the process - before competing the task. But that, in and of itself, would be a seismic jolt sent through the snoop shop upper echelons. It would say one thing: we're potentially vulnerable to actual criminal prosecution. Ask Kissinger if the warrants waiting for him in Europe for war crimes impact his travel decisions. Yep. But, if she stood up and made her case forcefully, publicly, and with solid factual backup... she'd be a legitimate hero.
There would be risks, to her. Sometimes, doing the right thing involves taking risks. We all learned that as kids, right? Ask Ed Snowden about that. Or Chelsea Manning. Or Julian Assange. Risks are part of life - when we make shit decisions because we're scared of risks, we are referred to as "cowards."
Is every single AUSA in this country a coward? I don't believe so, not for a minute.
As to jurisdictional reach, by definition AUSAs have broad discretion here, too. And, since every citizen of this country has seen their privacy breached by arguably illegal (under wiretapping language in 18 USC) NSA actions, it's hard to see how a case would be dismissed on lack of nexus. Not even close.
Would a federal District Court judge wither at the thought of overseeing such a case, and throw it out offhand? That's possible - some judges are cowards. But not all of them - not even close. And you never know until you try, eh?
The best counter I've seen is that the NSA would go into court and claim "national security" exemption made any such case impossible to try. That's their tried and true tactic, and it worked in the "wire room" cases that came out of Klein's whistleblowing back in 2006. But in recent years that defence has become shopworn, and several district judges have already rejected it outright. Bring this case in the Ninth Circuit, and you'd have a fighting chance.
Read the statutory language of our existing wiretapping laws. Hell, read the CFAA! The CFAA alone has been violated how many tens of thousands of times by TAO ninjas stealing CA creds to spin up MiTMs in the Flying Pig program? Who can even begin to count the felonies, right there - and nobody's even suggested there's a FISA order covering that stuff.
/end rant expanding on original rant
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