Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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19 Responses

  1. BlaiseP says:
    August 5, 2013 at 3:15 pm

    I thought of you when I saw this mess pop up on the radar. Yerp, yerp. Didn’t Jason predict this? The interesting part, for me, is looking at all these John Law types from the Special High Intensity Tactics (S.H.I.T) division now come squealing to the trough, wanting access to this data — and the NSA says “sorry, boys, if you get it from us, you can’t say you did.”

    Wonder how many state’s attorneys have been lied-to about how this data was obtained? Or how many have been tellin’ those lies? Hundreds. Thousands.Report

    • Jason Kuznicki in reply to BlaiseP says:
      August 6, 2013 at 7:06 am

      To be clear, it sucks to have been right. The procedure as described seems clearly unconstitutional — the fruit of the poisoned tree, in constitutional law. Worse still is that as more and more people know a secret, the chance for improper disclosure or other improper use grows.

      We’ve now got more people knowing more secrets than ever, and it seems only likely to grow, at least until Congress or the courts rein things in.Report

      • Damon in reply to Jason Kuznicki says:
        August 6, 2013 at 8:59 am

        Unconstitutional? The Constitution is 1) just a scrap of paper 2) a living document. Both sides have said so. It means what our rulers say it means. If you don’t like it, there’s a cell in Cuba with your name on it. Now STFU and be a good boy and you’ll get some candy.Report

  2. J@m3z Aitch says:
    August 5, 2013 at 3:21 pm

    You just can’t be too cynical, no matter how hard you try.Report

    • BlaiseP in reply to J@m3z Aitch says:
      August 5, 2013 at 3:26 pm

      That’s the wonderful thing about cynicism, Hanley. You don’t have to do any work at all, dreaming up nightmare scenarios. That’s for rubes and paranoids. Like those old Soviet-era jokes “In America, you listen to man on radio. In Soviet Russia, man on radio listen to you!”

      The Parade o’ Horribles comes to you.Report

  3. NewDealer says:
    August 5, 2013 at 3:27 pm

    I concede a mea culpaReport

  4. Chris says:
    August 5, 2013 at 3:41 pm

    It does look like the backpack googling story wasn’t quite what it was reported to be initially. At least it hasn’t gotten that far, right?Report

  5. Creon Critic says:
    August 5, 2013 at 4:36 pm

    Three quick points.

    First, the Post piece, “The NSA is giving your phone records to the DEA. And the DEA is covering it up.”, is derived from a Reuters piece which is altered significantly, stripping out a bunch of important information from the Reuters piece. The Post’s title is particularly misleading, overpromising and under delivering in the text of the piece itself* and even more so when looking at the Reuters piece. The Post correction also further undercuts their overconfident title.

    Second, it is unclear how wide the Special Operations Division’s ambit is. The Reuters piece discusses potential use against “common criminals” and then goes on to mention Latin American drug cartels, a Russian arms dealer, “manufacturers, wholesalers and retailers of synthetic designer drugs”, and “narco-terrorism, organized crime and gangs”. The national security line can be drawn to exclude or include some of these depending on your perspective on how intelligence gets channeled (or not) into the court system. (Should go without saying that investigators misleading prosecutors or prosecutors misleading judges is wrong, but that sort of thing is wrong in any case with or without SOD’s work.)

    Last, the reason the parade of horribles thing leaves me unpersuaded is that numerous developed democracies have had entirely robust character for decades while still maintaining domestic intelligence agencies (for instance, MI5 didn’t get statutory grounds until the late 80’s).** I don’t see why the US would be any different.

    * This for instance,

    The report makes no explicit connection between the DEA and the earlier NSA bulk phone surveillance uncovered by former Booz Allen Hamilton contractor Edward Snowden. In other words, we don’t know for sure if the DEA’s Special Operations Division is getting its tips from the same database that’s been the subject of multiple congressional hearings in recent months. We just know that a special outfit within DEA sometimes gets tips from the NSA.

    ** RAND’s work on this is particularly insightful, “Considering the Creation of a Domestic Intelligence Agency in the United States: Lessons from the Experiences of Australia, Canada, France, Germany, and the United Kingdom” and “The Challenge of Domestic Intelligence in a Free Society A Multidisciplinary Look at the Creation of a U.S. Domestic Counterterrorism Intelligence Agency”Report

  6. George Turner says:
    August 5, 2013 at 4:45 pm

    All right, folks, there was no alien. The flash of light you saw in the sky was not a UFO. Swamp gas from a weather balloon was trapped in a thermal pocket and reflected the light from Venus.

    *blinky thing goes ZAP*Report

    • BlaiseP in reply to George Turner says:
      August 5, 2013 at 4:48 pm

      Gentlemen, congratulations. You’re everything we’ve come to expect from years of government training.Report

    • George Turner in reply to George Turner says:
      August 5, 2013 at 4:57 pm

      ^_^

      Good one.

      One question I have regarding this revelation is whether a reasonable doubt that the government’s case was presented honestly, that it didn’t use technically illegal or unconstitutional surveillance to build its case against a drug trafficker, would be part of the “reasonable doubt” that the jury has to consider, or whether that’s off the table unless the trial judge grants a dismissal or it comes up on appeal.

      Maybe the lawyers at the Volokh Conspiracy will weigh in.Report

      • BlaiseP in reply to George Turner says:
        August 5, 2013 at 5:14 pm

        The question for me, as a non-lawyer but a guy who’s had extensive military security clearances, resolves to two reductions.

        The NSA says it can gather call information because there’s a third party involved, as per Smith. So far, so good — on that basis, how can they classify that information as a state secret, thus bringing all that Sixth Amendment and Silent Witness Rule stuff to bear on a prosecution?

        Judges don’t like the idea of some dingy and clearly untruthful statement about “oh, our intrepid state patrolman juuust haaappened upon the suspect”

        See also United States v. Ahmed Abu Ali. When the prosecution has more cards than the defence attorney, that’s a big Sixth Amendment issue and the courts ruled the government was out of line. See US v Rosen.

        Those state agencies don’t have NSA clearances. How can they go on fishing expeditions at NSA?Report

      • George Turner in reply to George Turner says:
        August 5, 2013 at 5:40 pm

        I think the existence of such a treasure trove is inevitably highly corrosive. Even if it is just DEA guys happening to have lunch with some NSA guys who just happen to mention that, hypothetically, someone should *cough* steal Garcia Hernandez girlfriend’s cell phone *cough*.

        Objectively, the number and severity of drug crimes we could prevent and criminals we could prosecute probably outweighs the counter-terrorist threats by several orders of magnitude, especially considering the ongoing corruption of US law enforcement officers near the border (one of the cartels’ traditional methods in Mexico), the hiring of former US military personnel as assassins (getting paid to wack drug smugglers? What’s not to like?), and other mayhem.

        The country is filled with cases, causes, and crimes that are far more compelling, from a law enforcement standpoint, than looking at young Muslim men’s underwear on the one in a million chance that the briefs are explosive. When law enforcement’s rules are at such odds with needs and capabilities, it’s the rational, moral ones who will bend all the rules to protect the innocent and punish the heinous. Unfortunately, for those of us living in the panopticon, the moral convictions and certitudes of those who run it isn’t necessarily a plus. It just makes them even more devoted to duty.Report

      • BlaiseP in reply to George Turner says:
        August 6, 2013 at 9:36 am

        Let’s get this straight. Some odd consultant type, name ‘o Edward Snowden, reveals the existence of a comprehensive dragnet operation. But when it’s DEA and NSA havin’ lunch or whatever it is Matrix Agents do to refuel — and they reveal it to each other — and pass all sorts of interesting data around — and arrange so nobody knew where it came from — boy howdy, that’s just Law Enforcement. That’s not leaking.

        How did DEA get read into the details of the Prism program? Who granted those clearances? How did these details result in prosecutions? How could any prosecutor worth more than a bucket of warm piss ever take a look at those details and say “oh well, NSA can’t tell me how I got this evidence, no Sixth Amendment issues here, nossir, I don’t have to show this to the defence at discovery…” , hmm?

        There are overlaps between drug traffiking and terrorism: the Taliban run an extensive heroin operation, so do Hizb’allah. I presume they have contacts in the USA. I can understand a Silent Witness on such a prosecution. What I do not understand is the NSA leaking this information or the prosecutors tiptoeing around the Sixth Amendment on all this.Report

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