Drug War

A good argument demands some rigor.

It’s s simple thing to advance the other fellow’s argument as that which we wish it to be. Shorn of context, with fundamentals omitted, we can, if we squint just so, convince ourselves that we’ve put a real knife to something that matters.

I recently argued two distinct things in the same essay:

A)  While I oppose the drug war and its immoral excesses, the tools used to prosecute that drug war — indeed for all crime suppression — are not, for the greater part, unconstitutional. Ergo, I oppose the policy of drug prohibition, not the tools used for that policy. The tools are themselves a neutral asset, capable of being used to both good and bad societal effect.  Just as the use of such tools in counter-terror programming, which I believe has more moral legitimacy than the drug war, is constitutional and credible.

B)  Given the last forty years of an unimpeded drug war, the sudden, hyperbolic reaction to these same tools used by the NSA in counter-terror programming is indicative of a callow self-concern, and general legal ignorance, on the part of those who now oppose one of the tools when it is aimed, even less invasively, at a wider swath of the population.

A is true independent of B.  My belief in B is in no way the cause of my belief in A.

Understanding that the easiest rhetorical temptations are too much for some, I even cautioned, early in the essay: “Before you get wound up prematurely and choose the too-easy, I-didn’t-read-deep-enough argument, I am not saying that overreach in other realms of the criminal justice system justifies overreach anywhere else.”

While he may not share my conclusions, this particular gentleman is addressing the actual argument, and not a mangled and muted facsimile.  He gets it:

This fellow?  Not a chance in hell.

There’s a good argument to be had in the NSA imbroglio, and there are substantive points that need to be addressed from all sides. But if The Atlantic wants to be relevant to such, they need to bring a much better game.

Perhaps the same thing can be said about the rhetorical and argumentative potential of the internet as can be said about the technological possibilities of the NSA data pile.  If used well and honestly, some good can result.  If misused, not so much.


  • The main problem at the moment is that the NSA is not using their program legally, it has Constitutional problems from the get-go and has been covered consistently with a policy of hiding the truth and openly lying. It has also not been used legally as far as all the other countries which have been caught up within its grasp are concerned – that goes for the British spying efforts just as much as for those of the USA.

    As a tool of potentially great promise I have nothing against it. What I dislike – vehemently – is the illegality of the whole, the lying and cover up. As a tool it still needs to be honed down to a workable program, rather than just a mass collection system which targets anyone and everyone with no regard for relevance or usability. Spying, by various means, has been a part of our daily lives for countless generations, merely the systems have changed, the scope has changed. The bulk of people out there are simply not effected by it and, in its present form, it is practically impossible for the system to be of any real use.

  • This is a rather interesting “real life” use of metadata to identify and capture a truck driver in Germany who had shot over 700 vehicles in the last 5 years while cruising on the autobahns. http://www.spiegel.de/international/germany/spectacular-highway-shooter-investigation-raises-data-privacy-concerns-a-908006.html

    The authorities created the haystack, and then found the needle. When you use real world examples, it makes the question of where you draw the privacy line that much more difficult.

  • Thanks David for the very engaging discussion. I have a couple of thoughts that I haven’t seen addressed yet. First, on the subject of phone calls, I would argue that the meta-data is much more intrusive than the data. My conversations are pretty boring, but whom I’m with according to co-located GPS, what time of day/night it is, the fact that that we are next to the local brothel, weed dispensary, etc. might not be. My cell phone never leaves my side, and even as a law-abiding citizen, I’m sure it has plenty of stories to tell. I don’t buy the anonymous argument, either, at least not on this scale. Yes, we are all anonymous. Until we aren’t. What offense (minor, major, who knows?) will I commit or be linked to at some future point that unlocks years of past intimate details for the picking. A problem (among others) with an all-persons all-the-time surveillance system is all of the false positives. I work in computer systems, and we’d consider matching with 99% accuracy in our databases pretty good. So I suppose if we monitored 300 million Americans we’d only regularly be invading the privacy of 3 million of them. I suppose the NSA can do better, but here’s an article on why they probably don’t, by a renowned cryptographer:

  • Yeah, the NSA is out of control… Here’s where they arrest a guy on the street for no reason, then shoot his dog. Oh wait, that was local cops in Hawthorne, CA. If you think the most immediate threat to our liberty is comes from data collection, I don’t think you’re paying close enough attention to where American society is at right now. Hey, you can even watch the clip: http://www.youtube.com/watch?v=WDBZr4ie2AE

  • Anyone watch Letterman? I hate the way this third rate comic has done a hatchet job on Snowden. What dirt does the NSA on this old time flunky? I’m sick of the ad hom attacks on Snowden’s character (and Greenwald’s, for that matter). This 30 year old “kid” (according to Letterman) has performed a tremendous service to Americans, but are they thankful? No! Go back to sleep America – the government is in control. Here, watch Letterman. Laugh it up. Pretend the establishment has your back. Watch Fox “news”. That’s the good oil. We wouldn’t lie to you. Your facebook account is safe in our hands. Go back to sleep America.

    • I don’t agree that he has performed a tremendous service. I know you think so. But others will disagree. Some of what Mr. Snowden has done is to the good, but some of it, I believe, is actually destructive. His results are complex, and a mixed bag. The world is a dangerous place, and there isn’t a modern nation-state that operates in it without intelligence-gathering in constant, real time, often through furtive means. We do it to allies and rivals; they do it to us. I am less enamored of Mr. Snowden’s stance than you. I can understand an opposing view, but clearly, you aren’t leaving room for one in your own calculations.

      Mr. Letterman is a comic. I didn’t take note of what he said, but I assume he is trying to make an audience laugh, which is what all comics use politics for. A rare few ask them to think as well, but that’s really optional to the craft.

      As to ad hominem: “….this third-rate comic has done a hatchet job on Snowden. What dirt does the NSA have on this old-time flunky? I’m sick of the ad hom attacks….”

      Not sick enough, apparently.

      • 🙂 Letterman started it, that’s all I’m saying.. I enjoy his shtick as much as the next man, but his persistence at maintaining the status quo and serving his masters whilst pretending to be a patriot is wearing thin.

        In regards to the NSA’s ability to stop terrorism, where’s the evidence? It’s all so secret, they can’t reveal it. They’re so effective at stopping all these dastardly attacks, they ran out of legitimate targets, so they’ve decided to spy on the Germans.

        Meanwhile…how many “terrorist “acts have been committed on US soil by foreigners since 911 (when the NSA decided it had to go feral) ?


        How many committed by Americans? Hundreds. Newtown massacre, Accent Signage Systems shooting , Sikh temple shooting, Aurora theater shooting, etc, etc….

        All by bezerk gun nuts.If you can make links to the drug war….I figure I can make links to gun nuts.

        As for Obama – when did he sell out? His appearance in Robben Island was a joke – he should tour Guantanamo – that’ll humble him. I’ve been to Robben Island, and I don’t remember gazing out through the bars whilst the sunlit caught my eyes so I could strike a world-weary repose (and he did it just at the time the world press could snap him) . Haha, talk about kissing a baby – this guy’s on a whole other level.

        • You enjoy the schtick of this “third-rate comic” as much as anyone?

          As is often the case, your zealotry hijacked your reason.

          Also, whatever your opinion on the case at hand, Snowden is clearly a dope who has no idea what he’s doing and clearly didn’t think things through at all.

          • Hi Dan. Me, a Zealot? I reject it. I’m furious about a number of things regarding PRISM, but they’re all based on evidence!

            So I’m shaking my head at your last par. Snowden’s a dope? Let’s just say he is : what does that make the organisation which hired the goofball? No idea what he was doing? He knows what he’s doing alright! Speaking truth to power. Doesn’t think clearly? Maybe his arrival in Moscow wasn’t the smartest idea.

            I take it you think his “whistleblowing” was a disaster?

            I am really astonished that a large number of people such as yourself seemingly couldn’t care less that the NSA and the Brits are hoovering up every single bit and byte which you post on the internet – because they’re the “good guys”. Are they really? Thanks to Snowden we now know this is not the case. I think he’s doing a terrific gutsy job exposing corruption – I can’t see it any other way when a government agency goes well beyond its remit and interprets laws so loosely they can achieve total internet dominance. I’d have to twist my morality into a knot to straighten out the cognitive dissonance between what should be happening and what is happening.

            I’ve come to the conclusion that a lot of people no longer care about privacy, and are misguided in their confidence that the government will do the right thing. Why? When have they ever? You think they’re looking out for you? Fuck no, they don’t give a flying fuck about the ordinary man on the street. So I think because the NSA thinks that nobody gives a shit about their Facebook posts (as seems the case),they can abuse every person (not just Americans) fundamental rights to privacy (as enshrined in the constitution, and article 8 of European Convention on Human Rights. It’s unbelievable that the Brits have ignored that! Just because your status on Facebook is about your cat, or why you think Justin beiber sucks doesn’t make an invasion of privacy by the government alright.

            Please reconsider your belief system. Read Orwell. Or if that’s too much hard work, watch the lives of others. Do something.

            • Yes. Zealot. As pure an example as could be. A tongue-wrapped-around-your-face zealot. Zealots react emotionally to things, leaving reason by the wayside, as illustrated by your rants here, whi reveal your hinges to be just barely attached.

              Zealots also tend to make wild presumptions, like where you “take it” that I think Snowden’s whistleblowing was a disaster. I don’t, necessarily. I generally favor more information over less, and from what I know so far, I’m glad we know about this program. That doesn’t mean the revelation of it isn’t problematic, however, and potentially severely so. We don’t know enough to know for sure. And believing that people who approach these issues rationally and analytically “don’t care” about privacy and whatnot is a major leap. This isn’t a simple issue, as much as you would prefer it to be.

              And etc. I won’t get into your sweaty appeals to liberty and your exhortation to read Orwell. Except to say that Orwell is a hero of mine, and I’ve read pretty much every word he’s ever written, and many books and articles about him. What I especially like about him is that he appealed more to the mind that to the gut.

              As for Snowden, it doesn’t take a genius to transfer files onto a thumbdrive and email them to a reporter. And he clearly had no idea what he was getting himself into with all this.

              • Just so on Orwell. About as far from an ideologue as you can get. A free mind in every sense.

                • Sadly, though, the people who tend to invoke his name the most are generally the most ideological among us. And they don’t seem to quite understand him, despite their purported reading. The implied comparison between actual totalitarianism and our own admittedly problematic surveillance regime is inane, misinformed, and sort of appalling.

                  And by the way, this…

                  “Please reconsider your belief system. Read Orwell. Or if that’s too much hard work, watch the lives of others. Do something.”

                  …would be insulting if it weren’t so comically off-base and delusional. Whence, if not from an anatomical orifice, comes this idea that I don’t do “hard work,” “read Orwell” or “do something?” What have I said here that would indicate the truth of any of that?

                  Based on his arguments (which consist of little more than “derp…liberty!”) I have to conclude that this Ex-Forces character is just another run-of-the-mill Internet commenter who would fit in better in YouTube’s or the New York Post’s comments sections.

              • Ah, Dan. Disappointing. Apart from the ad hom character assassination, trying to label me a zealot, unhinged, sweaty, emotional, and basically crazy, haha (crazy like a fox brother), did you make any points other than you enjoy Orwell?

                Again, you *seemingly* (notice this word before you start ranting in future) know what’s on Snowden’s mind – in fact you can *seemingly* read his thoughts. Wow. “he has no idea…blah blah blah”. The truth is, we don’t we don’t know what’s on his mind (and you certainly don’t know what’s on my mind), and therefore you certainly don’t know what ideas he may or may not have. So in future, less of the ad hom. Let’s be nice.

      • What are the good/bad parts in regards Snowden? I can’t think of any downside. He hasn’t exposed anything we shouldn’t know about. The only mistake is from the Obama regime forcing our man in Moscow into the arms of the KGB.

        • He has exposed some of the U.S. capability for data analysis, and some of the methodology. How much? Neither you nor I can honestly say, given that we aren’t aware of the actual tactics employed by targeted groups to guard their communications, what they have discerned from these revelations, and how they have changed tactics. Certainly, anyone who was sloppy or less careful before is now in a crouch. Surveillance and espionage are not practiced well in the open; that is the nature of the craft. Again, how much damage neither you nor I can intelligently say.

          The good part is that there is a discussion about the implications of data mining and data retention going forward, and that perhaps, some specific safeguards or legal standards will result from that discussion.

          • I’m sorry if you were expected David Letterman to be at the vanguard of some sort of sociopolitical revolution. Certainly, when Mr. Snowden elected to proceed as he did, he had to assume that some national and even worldwide notoriety might result. If you wish to regard him as heroic, that’s your call. But certainly, the fact that others might regard him otherwise had to be part of his consideration, and ought to be yours as well.

            His fame and notoriety is a function of his own choosing. It would seem to me quite specious for you to despair because not all the comedians in the world see Mr. Snowden and his actions as you wish them to be seen.

            That said, I’m content to see him have a day in court and make his best arguments. And I can only hope that the verdict and/or sentence reflects those arguments as well as the government’s best arguments and is judicious. To me, he’s not a hero. Nor is he quite a traitor, either. But his actions require a legal resolve, for the sake of precedent if nothing else.

            • In Media Law there is a thing called contempt of court. I can’t see how any jury in the US could attend Snowden’s trial without being tainted in some way because the media has assassinated Snowden’s character. So there is NO way he would receive impartial justice from 12 ordinary men/women who probably watch Letterman,or Fox news, or listen to US politicians calling for him to be killed, for example. If he returns to the US he gets thrown in the slammer, just like Bradley Manning, whilst he waits for a trial. No. He’s done the right thing. The system is rotten. Stay in Russia comrade.

          • If we don’t know what their methodology is, how can you say it’s been exposed? I don’t think tapping a data cable is ground breaking science. Anyone could do it. Certainly the high-tech Germans could *if they wanted to*. As for data analysis – again, pretty basic stuff. The NSA haven’t invented relational databases. If only! They’re little more than a virus sitting atop the data pile.

            So, you have no idea on point 1, on point 2 it’s good for discussion.

            30-Love to me.

            • Now, you’re just wasting my time, and foolishly so.

              Take this down to any practical law enforcement tactic to proactively observe a suspect or capture communications from a suspect, and the first essential is law enforcement to maintain strict confidentiality about its intentions and methods and interests. I covered the cat-and-mouse of police wiretaps and surveillance operations through about two or three generations of drug traffickers. Every time that the government penetrated the communications of an organization, and then were obliged to reveal their capabilities in court, other organizations would adapt and surveillance would become more difficult. Then, in turn, the police would adapt and acquire the communications in different ways. Then, more adaptation on the part of the targets.

              You’re wasting my time by pretending that every terror suspect at every echelon of every organization is a master spy capable of avoiding all extant surveillance. But the more they know about what they are trying to avoid, the harder the surveillance. If this were not so — and secrecy were not a function of all proactive police work — then why would the police not cut in on a guy’s cellphone and introduce themselves. This is a genuinely dumb line of argument. You can politely concede that neither of us know how much damage was done, but that revealing our capabilities, methodologies and intentions certainly informs the targets to some extent. You can argue that the loss is worth the public discourse. You can argue that all of the suspects targeted ought to be masterful geniuses at avoiding all detection, but see, I saw enough to know that this is never the case. No matter how much discipline an organization attempts to impose to protect its communication, some motherfucker is always gabbing on a cellphone for longer than he ought. It’s so.

              You’re in the dark, and so am I on the details of the cat-and-mouse. But I am not in the dark on the fact that there is always — always — a cat-and-mouse underway and that both sides are adapting, one to avoid detection and the other to prevent that. Your armchair is no place from which to deny even that basic and inevitable dynamic.

              • Well like I said before, if the US wasn’t busy trying to flex its muscle with its appalling foreign policy – whupping peasants whenever it can – because it needs their oil, lets not pretend its for anything else, we wouldn’t need a surveillance state to cope with the inevitable backlash – people don’t like a boot on their neck, especially peace loving Muslims. My guess is the US is finished. It’s already in hock to the Chinese – who could pull the plug, just like the US did to the Brits during the Suez canal crisis by yanking the money chain. What’s the deficit in the US? Crazy figures. We’re in the end game now. And China holds the Ace card – no more money.

      • He should have restricted himself to only leaking information about domestic surveillance. The leaks on GHCQ, the spying on the EU, the hacking of Chinese companies, and the spying on our allies should have remained secret. Sure it looks hypocritical to spy on our allies and criticize China for hacking us while we do it to them. But it only appears this way. This is how the spy game has always been played.

        I hate how the government has made intelligence networks accessible by millions (4 million have Top Secret clearance according to the Washington Post). I always felt queasy when I accessed such networks because I knew how much unauthorized information a single person could get if they wanted. Perhaps they are a necessary evil today, but they have dramatically shifted the power balance from security to the leaker. Snowden’s leaks should be a warning. Eventually someone is going to hand over a data trove that will have operational impacts that will cost lives or have major strategic impacts. The government needs to shrink the clearance holders down to a manageable size and do a better job on maintaining a need to know (which was a problem even a decade ago when I was in the Navy and my shipmates would tell me about some of the crazy things they found on the SIPRNet).

        • Agree. Mr. Snowden would be in a stronger ethnical position — if not legal position — if he had leaked the domestic aspect only — although, of course, it is a domestic data pile inextricable from overseas counter-terror work. Still, he might have gone into a federal court and said in effect, I was given an unconstitutional order. And much as our military personnel are obliged to follow all orders except for unlaw ones — they take an oath to the Constitution, not to the Joint Chiefs — he might have argued on that basis. Even if his constitutional arguments foundered, he could at least present himself as a person of conscience trying to find his way to a proper course of action.

          Revealing the overseas espionage was, for him, a mistake. The moral standard he is claiming against intelligence-gathering and spying, even in peacetime, even among allies, does not exist and has never existed. And, as long as there is a shread of nationalism on the planet, will never exist going forward. In that sense, Mr. Snowden is exactly in the same place as Julius Rosenberg and some of his confederates in the Manhattan project, for example, believing that atomic power was too dangerous to only be available to the West, or that the Russians, as our wartime allies, were entitled to know. Or the Falcon & The Snowman Case from California in the 1970s, which began when one of the conspirators became incensed by CIA interference in foreign affairs and proceeded to begin spying for and leaking to the Soviets. If anyone can make an individual decision of conscience and then reveal state secrets or engage with other nations, then all national security becomes untenable. At some point, the government does have a necessary secret or two in this, the real world.

          Agreed that Mr. Snowden has not, seemingly, operated on behalf of a foreign government. But he has chosen to share national security secrets publicly. And I think Americans are entitled to look at his stated arguments against domestic spying on fellow citizens and his stated arguments against foreign espionage very, very differently. As a conscientious objector seeking to argue the constitutionality of the NSA programs as regards the Fourth Amendment, he has a place to stand, ethically and legally. It makes an argument for a court to hear, to be sure. But to object to our intelligence agencies gathering foreign intelligence? Where is the constitutional question there? We shouldn’t spy on others? Then why does every modern nation-state fund a foreign intelligence service?

          Agree about the vast numbers of clearance holders and also about how too much is stamped secret, or even top secret, or higher classifications. Be rigorous about what we really need to keep secret and limit access, and don’t misuse the cloak of national security to put entire agencies and even general public discourse about our programming and intentions under the rug.

    • In the light of further revelations, many of which appear to undermine the assumptions of your arguments on this issue, will you (Mr. Simon) reconsider your opinon and revisit these topics—in an intellectually honest manner, and not just to protect your attachment to your first take?

      Over the weekend, there were a bunch of new disclosures of how these programs work, and the extent of the U.S. spy apparatus. Greenwald and others are promising more (and possibly more scandalous) revelations.

      I just hope you intend to keep yourself as honest as you seem to think it your mission to keep the press and Snowden honest.

      • I’ve been reading with some care and attention. Exactly what further revelations undermine the assumptions of my arguments? My arguments seem to be resting atop the same foundation when last I left them be.

  • Mr. Simon,

    Congrats on The Wire being named the best TV Show of all time by Entertainment Weekly.

  • I know we’re all trying to stay away from ad hominem and no one here has speculated about Snowden’s actual motivations, but I heard today that Snowden’s dad gave the justice department 3 conditions under which his son would likely surrender. No detention until after the trial, no gag order, and he chooses the location of his trial. This bothers me. Apparently, he believes he deserves his own version of due process? And he’s hailed as a patriot for his actions? Maybe I’m reading too much into this.

    • Well, thinking on it, I understand his reasons for the three conditions. But I can also see that its problematic for the government to begin making conditions for the surrender of a fugitive. It opens a big can of worm with regard to everyone else who is wanted on a warrant, or otherwise on the run. I’d be amazed if there was any precedent set for the surrender of any fugitive.

    • I am somewhat surprised that a top US official has not made contact with Snowden – not to offer him a deal, per se, but to negotiate a way out of this mess for him that would involve much the same kind of scenario you describe Snowden’s father suggesting.

      I think the administration has been making this whole thing more confrontational than it may need to be.

      After all, if we take Snowden’s declarations at face value, the best thing for him and for the rest of us would be to stand trial in the US and use the proceedings as a platform for all it’s worth. That’s the way I’d like to see this work out, anyway.

      • Well, yes and no.

        From the government’s point of view, the precedent here is mortifying. If you view Mr. Snowden as a whistleblower, then the idea of a prison sentence seems absurd. On the other hand, these are national security secrets. If there is a compromise on the idea that you can make individual moral decisions about national security programs, violating your security clearance, then it becomes much more problematic for the U.S. to maintain legitimate secrecy behind covert intelligence-gathering operations. I am no fan of our covert operations with regard to regime change or interference in the affairs of other nations; the CIA’s history is rife with disastrous examples of amoral American overreach. But there isn’t a modern state on the face of the globe that doesn’t gather intelligence or employ furtive methodologies to so. We spy on friends and foes alike. They spy on us. And it’s scarcely possible to maintain any kind of intelligence-gathering infrastructure if an individual, embracing his or her own personal sensibility of what is moral, decides to unilaterally reveal state secrets. If you believe that the U.S. has legitimate need of foreign intelligence in real time and that this analysis is an essential priority, then how do you tolerate Mr. Snowden’s actions? And even if he is correct as to the illegality and misuse of the programs he revealed — and we are still awaiting a definite series of verdicts on this — how do you empower the next individual to reveal secrets that might be entirely legal and genuinely necessary to national security.

        The government can’t really make much of a deal on this. They’ve got to fight the precedent here, regardless.

        On the other hand, Mr. Snowden and his attorneys could take their arguments about the illegality of the program to a court date, for consideration by a judge and jury. After that, however, if found guilty, there’s really very little opportunity for a judge to trend downward toward any leniency in the mandatory federal sentencing guidelines. Whatever the prosecution charges and convicts — that determines the sentence, and the judge or jury can’t interpose to reduce that sentence in the federal system currently. The only opportunities for leniency are if you accept a plea and cooperate fully with prosecutors.

        The federal guidelines and mandatory minimums are brutally reductive of anyone’s chance to argue a moral exclusion or moral counterweight to the overt and specific charges themselves. In short, if charged federally, Mr. Snowden will not be able to effectively argue, okay, what I did was technically illegal but morally correct. Under the guidelines, that can’t really matter. What matters in the federal system is: What were you charged with, what were you convicted of, did you show remorse (if you went to trial rather than pled, you de facto showed no remorse), did you cooperate (not if you went to trial, although after conviction, you can offer to name coconspirators and cooperate fully to reduce sentence), and what is your prior criminal history. You run all that up on a grid and the judge pronounces a sentence that even he can’t alter, even if he wanted to. The guidelines in effect make federal prosecutors into sentencing judges and disempower the guys in the black robes. They are an abomination of what justice ought to look like.

        If I were Mr. Snowden, looking at the rules of federal jurisprudence and knowing that the government, for the sake of precedent, has to prosecute anyone who reveals national security secrets regardless, I would keep running. This is not to say I agree with his actions thus far. Only that the federal courts will not be a reasoned measure of what he has done wrong, or right.

        • All good points, not surprisingly.

          I’m still thinking about where I come down on all of this and there are far more questions than answers …

          You are doing a great service here, by the way, in starting and sustaining a serious debate on these issues and in forcing intelligent discussion using reasoned arguments.

          It’s always encouraging to know that there are still places where the fine art of persuasion is alive and well – it certainly lives at The Audacity of Despair!

  • Today, from Jennifer Stisa Granick ,director of civil liberties at the Stanford Center for Internet and Society, and Christopher Jon Sprigman, professor at the University of Virginia School of Law.

    ‘ Like the Patriot Act, the FISA Amendments Act gives the government very broad surveillance authority. And yet the Prism program appears to outstrip that authority. In particular, the government “may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.”

    The government knows that it regularly obtains Americans’ protected communications. The Washington Post reported that Prism is designed to produce at least 51 percent confidence in a target’s “foreignness” — as John Oliver of “The Daily Show” put it, “a coin flip plus 1 percent.” By turning a blind eye to the fact that 49-plus percent of the communications might be purely among Americans, the N.S.A. has intentionally acquired information it is not allowed to have, even under the terrifyingly broad auspices of the FISA Amendments Act. ‘

    There’s more.


    • Right. So why are we are arguing about the Verizon court order and phone metadata, which has been an investigative perogative without a warrant for decades?

      The brave new world is on the Internet side, where there is less distinction between metadata and content. And where there is less legal precedent for privacy than with telephonic communication.

      • You’ve been through this a really, REALLY lot, so forgive me if you’ve answered a version of this, but – isn’t what you’re saying about this being the least indiscriminate thing sort of like saying, “Yes, they went through the underwear drawers of each and every one of us – but they did it blindfolded!”

        David Simon’s likely answer: “Well, yeah, but that’s the truth about law enforecement. If you’d rather anarchy… And by the way, going through all of our undewear drawers blindfolded has been legal for deades!”

        • Actually, although you seem comfortable with both ends of the conversation, I think this Simon fellow would simply dismiss your analogy out of hand. They aren’t searching our person. There are Fourth Amendment protections before they can do that — unless we’re a black kid in New York City, of course, in which case, all bets are off. No, they are accessing our telephonic histories. Which have no constitutional protection and have been subject to investigative perusal for decades.

          Why do you need an analogy involving our underwear? No one has searched anyone. Is it because compiling a U.S. phone history of billions and billions of calls is not, in fact, an untoward and discomfitting and illegal search for the majority of Americans that you feel the need to walk away from the facts and manufacture a scenario that would in fact upset people and be illegal?

          There are many discriminate things that a police officer can and will do if you become a person of interest — not even a suspect — in the course of an investigation. Your driving record will be pulled, your criminal history, too, as well as certain financial records. Your employment history may be perused, and he may talk to people at your job, or your neighbords. If you have been arrested before — even if you wer not convicted — he will pull the reports. I could go on, but suffice to say your phone history is not unique in being unprotected by the Fourth Amendment. You have the right to remain free of unreasonable and unwarranted searches and seizures. You do not have the right not to investigated.

          This is just so, though it seems to hurt the heads of a lot of people here who want to imagine that until the police have sufficient evidence to write a warrant for more evidence, they can’t begin to gather information on a person of interest. It doesn’t work that way. And phone records have always been outside the yard gate and in the street.

          • Why do you act like you get the last word on that? A really lot of people with a really lot of knowledge on these exact subjects disagree with you. Including Jennifer Stisa Granick and John Sprigman. Are they all just idiots? Not only that, why do you simply keep going to that one spot – it’s just metadata! and it’s been legal for decades! – while ignoring several others? You don’t even speak tothe 51% thing, which does, in fact, speak to your touchstone. Why would they even have such a rule, and use it to defend themselves, if what they were doing was much more intrusive than you continually claim? (And many people have spoken about how the gathered data is much more personal than claimed, too.)

            And the person of interest remarks are just weird. We’re talking exactly NOT about persons of interest. We’re talking about all us regular folks here.

            • Why do you think I act as though I get the last word on anything? I get my last word on it, certainly, it being my opinion and all.
              The 51 percent thing is PRISM. I am talking about the telephonic data pile. Once again, you have conflated two distrinct programs and all the attendant issues. You must stop making this mistake as it wastes everyone’s time on nonsense.

              You do know that persons of interest are, in fact, regular folks. They are not criminal suspects. If you were a witness to a crime, or if you were an associate of someone who a detective is interested in, or someone cited as a possible alibi even, he could use all those investigative techniques to get a sense of your background, history, credibility, etc. You’ve lost the thread, Mr. Thom. A criminal investigator in this country is allowed to investigate; just because you’re not a criminal doesn’t prevent him from wandering into your life, legally. There are certain things he cannot do without a warrant; and things that he can.

              • I did conflate them. Sorry.

                I started this particluar thread with the link to the NYT story, and the 51% stuff. You went to telephonic histories, which, admittedly, I passed right by. I’m not even sure why you did now.

                When I went on to the underwear drawer analogy, I was talking about everything, phone and internet data. You’ve apparently answered on phone data – but, as far as I can tell, think it’s closer to an okay analogy re internet and PRISM.

                Am I up to speed?

                On the person of interest thing, we are talking about the collection of data – phone and internet – of people who have NOT become persons of interest. On virtually everyone. I have no problem with investigation of people seemingly involved in something iilegal.

                The near end of the NYT article finishes on that, on both phone and internet data:

                ‘ The Fourth Amendment obliges the government to demonstrate probable cause before conducting invasive surveillance. There is simply no precedent under the Constitution for the government’s seizing such vast amounts of revealing data on innocent Americans’ communications.

                The government has made a mockery of that protection by relying on select Supreme Court cases, decided before the era of the public Internet and cellphones, to argue that citizens have no expectation of privacy in either phone metadata or in e-mails or other private electronic messages that it stores with third parties.

                This hairsplitting is inimical to privacy and contrary to what at least five justices ruled just last year in a case called United States v. Jones. One of the most conservative justices on the Court, Samuel A. Alito Jr., wrote that where even public information about individuals is monitored over the long term, at some point, government crosses a line and must comply with the protections of the Fourth Amendment. That principle is, if anything, even more true for Americans’ sensitive nonpublic information like phone metadata and social networking activity. ‘

                • Yes, we are talking about gathering everyone’s phone history into a pile, but as presented to the FISA court, the program calls for the datapile to be anonymous and for it to be utilized only to run suspect communications. Why do they need to have the haystack in advance of any search for a needle? Because of the real-time value of intelligence in a proactive investigation. Go back to the second essay and see the argument of exigent circumstances and the average shelf-life of a suspect cellphone — and how long it would take, in terms of band-width and time, for Verizon to download the datapile and transfer it to the NSA computers in Utah. I don’t know if a Supreme Court challenge to this logic, as undertaken by the ACLU, will find favor. Perhaps. I know that the government has an actual, substantive argument for doing what they are doing with the phone metadata.

  • I don’t understand why Clapper’s lie isn’t enough for you. You keep saying things along the line of “If and when abuses occur…” – after already knowing that Clapper – the head of the NSA – lied to Congress. That is one really, really big “If and when.” And you just brush it aside, and keep saying “If and when.” I think this undermines the foundation of your arguments. Why should we assume you wouldn’t just brush off another or any other exposed abuse and continue making whatever overall argument you’ve been making, which from my view (and others, going by many comments) amounts to “Snowden was wrong to do what he did, Glenn Greenwald isn’t really a journalist, all you people just don’t understand, we’d all be better off is we weren’t having this conversation”?

    • And this, I think, is another weight against you along these same lines:

      ‘A day after coming under fire from congressional critics, the National Security Agency is trying to flush a controversial surveillance “fact sheet” down the memory hole.

      That fact sheet was supposed to explain how the NSA interprets and uses section 702 of the Foreign Intelligence Surveillance Act, the part of the law that underpins the agency’s PRISM data collection program. But after Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) asserted in a letter that the NSA’s explanation contained a “significant” inaccuracy, the agency pulled the FISA fact sheet from its website on Tuesday, delivering users instead a server error.

      In a letter to the senators, Gen. Keith Alexander, director of the NSA, said he “agree(d)” that the fact sheet “could have more precisely described the requirements for collection.” He pointed them to the text of the law for further information on how the program works. ‘


      How many lies do they get to tell before you allow that these lies do in fact fit the defintion of “abuses” inn your “if and when” scenario? And please remember that Ron Wyden knows more than you about this.

      • You do understand that lying about the existence and scope of the program in public — given that it is supposed to be a national security secret — is indicative of the fact that these guys are not comfortable telling the full truth about the program in public. That could mean:

        1) They are lying because the program has morphed into something illegal and beyond the claimed purposes that were offered to the FISA court and to Congress.
        2) They are lying because the program, while legal, has been exposed and a desire to maintain secrecy and capability of the program has made officials less than forthcoming.

        If it’s one, then let the chips fall where they may and jump on the illegality with both feet. If it’s two — that’s not a matter of the illegal and untenable use of these programs to actually violate the legitmate privacy rights and civil liberties of Americans. And again, if you tell me that Mr. Clapper or anyone lied to the intelligence committees in private about what they are doing, then I would think resignations would be in order.

        • The Director of National Intelligence should be given a pass after lying to Congress? Because maybe he did it for good reasons?

          Fuck me, David Simon. You’ve lost me. Why have a Congress at all?

          • I am asking this question, without knowing the answer: What if he told the full and complete truth about the NSA programming to the intelligence panels, but then upon being asked a question that would have required him to reveal the existence of a secret program in public, he lied. Which answer do we credit? Was Congress briefed in detail and informed about the programming in the proper forum? Does that mitigate the public lie in any way?

            I don’t know what Mr. Clapper said to the intelligence panels. I am curious, though, about the absence of real and persistent fury from both sides of the aisle among the members of the intelligence panels. I would think that if the intelligence panels were misinformed behind closed doors that Mr. Clapper would be the target of considerable anger, more than has been expressed overall. I will agree that if Mr. Clapper lied behind closed doors, he needs to depart public service, at the least. On the other hand, if he told the full truth in a secure briefing, and then acted like an intelligence officer unwilling to compromise an asset when asked the question in a less appropriate setting, that’s certainly a mitigating scenario. I confess that I don’t know what the intelligence panels know about this. It may be rank perjury, I agree. It may be something more complicated than rank perjury. It’s an interesting dilemma.

            • Ron Wyden has expressed close to real fury on this for some time! He has done everything short of send up smoke signals for YOU and I, and everyone else, to let us know very suspect things are going on. Anyone can have their own opinion, but Wyden, my senator for a very long time, I trust. He’s earned that.

              And what lies by powerful government officials *couldn’t* be defended with, “Well, maybe it was for good reasons”? You seem to be so completely on the side of government as to make the other side – us citizens – nonexistent. It’s liked the issue of public trust has no weight at all in this. How in the hell would we find out if Clapper’s lie was for reason #1? We have virtually no way of knowing. Lies like Clapper’s should very sensibly make us suspicious of more lies, not heartwarmed that they *might* be for good reasons. By your argument here, we could just treat all lies as possibly *good* lies and leave it at that.

              Not to mention that lying under oath is of course a crime in and of itself. One that has in this case has been largely ignored by the powers that be.

              • Senator Wyden is of course the legislator who chose to ask the question — which would have required explanations about a top national security secret — in an open hearing. Senator Wyden is also on the select committee on intelligence, so he asked the question knowing the position that it put Mr. Clapper.

                Again, I know Senator Wyden is furious. He asked the question in public and received a denial. But consider the following:

                1) What if Mr. Clapper fully informed Senator Wyden an the select committee, which meets in secret, about the purposes and scope of the NSA data programming.
                2) And what if, when asked again in a public setting, a question that could reveal a secret intelligence asset, Mr. Clapper made a choice between lying to a congressional committee and to a Senator who he had already briefed in private accurately, or telling the truth and doing damage to national security.

                I am just asking if that scenario would be mitigation of the perjury. You don’t think so, I understand. But I am noting that in the wake of the revelation about Mr. Clapper’s public deceit, very few members of the intelligence committee other than Senator Wyden — not even Republicans who are pretty quick to foment talk of administration scandals and demand resignations — are going out of their way to have Mr. Clapper’s head. Just asking, why do you think this is so?

                  • I know he gave it to him the day prior. And Mr. Clapper clearly concluded that no was his best answer. Is it a lie? Indeed. If he answered yes, and gave no explanation, would that imply the active investigation of Americans by the NSA and would that be an undue inference? Yes. If he explains the program fully, has he compromised a national security asset? Yes, too.

                    Mr. Clapper clearly chose to lie in public. Why? To hide the program and its specifics from Mr. Wyden? Or did Mr. Wyden already know of the program from briefings to the intelligence panel and was intent on revealing a national security asset in public regardless, in which case, as one of the nation’s intelligence commanders, Mr. Clapper could argue, perhaps, that it was his responsibility not to reveal top secret national security assets regardless.

                    Again, I ask: We know that Mr. Clapper did not tell the truth in public. Why isn’t Congress calling for his head? Neither party, and few on the intelligence committees. Perhaps Congress is simply inert, or indifferent to perjury. Or perhaps they are measuring his public lie against the fact that they were fully briefed on all of this in private, Senator Wyden included.

                    • “Mr. Clapper could argue, perhaps, that it was his responsibility not to reveal top secret national security assets regardless.”

                      I’m sure Mr. Clapper appreciates your vigorous pre-defense of his possible right-doing.

                      Would you mind very much giving Sen. Wyden the same treatment? Because so far is seems like you’ve treated that as an impossibility.

                      Your question about why there’s not congressional ctte. member outcry has so many obvious possible answers (I will note that you at least finally attempted a few) that I have to respectfully refuse to play along.

                    • Funny line. “His possible right-doing.”
                      And agreed, if Senator Wyden was not fully briefed on the intelligence committee and told the truth about the NSA programming, then he may well have felt a legitimate need to confront Mr. Clapper in a public hearing and out a rogue program. He could also have been briefed and is simply unconvinced that the NSA programming is anything other than illegal.

                      I see legitimate purpose in the first motive, and I see at least an argument for the second, though I also don’t agree with such a legal assessment.

                      Is that better for you? I agree that we don’t know what happened behind closed doors of the intelligence committee. If they were lied to, all bets are off. If they were fully briefed, you might concede that the Wyden-Clapper encounter has a different vibe. I honestly don’t know yet.

                    • Damn, just realized I signed in as Thom in other post threads. I use it and LT here and there. Perhaps you figured that out. Didn’t mean to hide that I am in fact Thom, just forgot.

                    • Can’t reply to you rlast comment – doesn’t give the option.

                      Yes, it is much better. Thank you.

                      I do concede it would be different, but I have no reason to doubt Wyden’s knowledge on this issue. I think that, taking everything, Wyden has been doing his damndest to let the public know something, and has been restricted by classification. Alexander’s public comments gave him a legal route to ask the question. It moved this train an inch. But I think a very important inch.

            • And it just occurred to me that what you are in essence doing is blaming Wyden for asking the question, no matter what the truth is.

              You said:

              “We know that he [Clapper] lied in a public hearing; we also know that if this program was indeed a national security secret. then for him to be asked this question at a public hearing, rather than in closed session with the intelligence committee, was a provocation that left him little out, if indeed he believes that answering the question breaches national security.”

              Calling it “…a provocation that left him [Clapper] little out…” gives Clapper MILES of wiggle room, and Wyden none. You acknowledged that Clapper lied in public, and that the lie could be to protect illegality, then completely ignore that possibility for your conclusion, simply stating as fact that Wyden’s question was a “provocation.” That puts you very firmly on the side of Clapper and government here, and not the fair weigher of facts you claim to be, does it not?

              You also ignore that Clapper need not have been involved at all for Wyden’s knowledge. Wyden could have learned something somewhere else, leading hims to ask the question. Clapper’s lie would still be the lie it is, and does not deserve your very soft touch.

              • Indeed, you are aware that the procedure for briefing Congress on the details of national security programs is to do so with the select intelligence committees behind closed doors. Again, if those committees were not told the whole truth by Mr. Clapper and others, then that is very different, is it not? But if Senator Wyden was fully briefed — and he is on the Senate select committee, so he should know of such programming — and he chose to risk a top secret intelligence program by asking the question publicly, perhaps he is in the wrong, at least as far as national security goes.

                I can’t say what intelligence officials told the select committees, though. Neither can you.

                I disagree that he had much wiggle room. The question was not a “yes” or “no” answer, if you consider it. Is the NSA gathering material on U.S. citizens. Yes, they are creating a phone metadata pile of all U.S. telephonic calls. But no, they are not doing so to to gather data on any specific U.S. citizens or to directly investigate U.S. citizens. They are doing so to run suspect telephonic intercepts through that pile and look for connections. So, if Mr. Clapper would have answered yes, which is accurate, he opens the door to a direct inference that the NSA is investigating American citizens directly and gathering data on them directly. And if he answers no, that is obviously inaccurate to the question, but also more accurate in the sense that they aren’t compiling identified dossiers on mass numbers of Americans. And if he answers by explaining: We have gathered a bunch of anonymous material on all U.S. citizens’ phone histories and we are using that as an asset to trace possible telephonic connections from overseas terrorists, but we identify no U.S. citizens or look into their data unless they are first flagged as having been in contact with a suspect telephone number overseas….well, then he’s describing the secret NSA programming.

                It may well have been a dumb and irresponsible question for Senator Wyden to ask at a public hearing. Or maybe Mr. Clapper and others lied in private to the committee or were not forthcoming, and Senator Wyden having learned or guessed the truth felt duty bound to seek the truth in public regardless. I can’t know and neither can you. But we do know that apart from a couple angry legislators, members of both the Senate and House intelligence committees, Republicans and Democrats, are simply not braying for Mr. Clapper’s hide. Do you not find this curious?

                If you read that paragraph back, you’ll see that I’m being entirely fair. In one scenario, Mr. Clapper should be fired and perhaps prosecuted. In the other, maybe there is mitigation. And I am saying I don’t know which is true. What side should I be on, other than to assess the available evidence and try to figure out the possibilities? I think I’m being as discerning as the known facts actually warrant.

    • He did lie, it would seem.

      I would like to know if he lied to intelligence committees. We know that he lied in a public hearing; we also know that if this program was indeed a national security secret. then for him to be asked this question at a public hearing, rather than in closed session with the intelligence committee, was a provocation that left him little out, if indeed he believes that answering the question breaches national security. In any event, if that was the case, I certainly think that rather than obfuscate, MR. Clapper should have simply risked contempt of Congress, saying nothing and existing the hearing. Even if the question itself was a security breach, the lie under oath to congress is awful precedent. I offer the above as context, but I’m not going to defend Mr. Clapper’s performance.

      But what Mr. Clapper lied about was not the same threshold for my saying if and when there is a misuse of the data pile, or a violation of civil liberties. Again, Mr. Clapper was not being asked about whether Americans were being wiretapped without a warrant, or having their internet communications gathered domestically without a warrant. That’s the rubicon, is it not?

      I have not spoken to Mr. Snowden and his actions very much at all. Not sure how that becomes part of your critique, really. As to Mr. Greenwald, he does indeed occupy a bifurcated role as both a journalist in this matter, but also as an interested and opinionated advocate. That bifurcation is problematic, not to his authority as an advocate, but certainly to the appearance of his impartiality when it comes to assessing the substance and meanings of specific facts. This is so, and my saying so is done with a very keen understanding of professional journalism. I will say to you that my training is in that craft specifically. As to whether people don’t understand, well, isn’t that the purpose of this forum and what we have done with it the last two weeks? And I have never said we aren’t better off for this conversation. Quite the opposite, I have encouraged this conversation.

      • 1. You may not have said much, but you did say directly to me in the comments of your “gathered and answered” post that you believe Snowden “did some damage,” and that you could “catalogue negative consequences from what he has done.” You also said “He has, too, opened this window in which an important discussion about security and privacy issues is now taking place. Good and bad.” This strikes me as sort of, “Christmas is wrong! No you cannot have these presents back!” At some point – gah. You craft your room so well it has no corners. I guess you’ll say that this is simply after the fact assessment. Maybe you’re right. Sure *tastes* like “Snowden was wrong,” though.

        2. James Clapper – again, the head of the NSA (actually the DNI, which is a higher position) – lying to senators about these programs, is a *higher* threshold that finding out one or even a hundred analysts went to far in particular cases. Saying it’s not is like saying G. Gordon Liddy could do as much damage as Nixon. That’s just nuts. He’s the DNI. Edward Snowden gave us proof that he lied. How does that not just completely turn the table for you? Why would anyone – any of us citizens taking part in these conversations – give him that gigantic pass you just gave him?

        3. Are the journalists who worked with Greenwald suspect, too? Sincerely asked. The original story was written with Ewen MacAskill.

        • 1. Can’t help how it strikes you. It strikes me as a pretty even-handed assessment of Mr. Snowden’s results.
          2. I’m actually interested in what is being said on the intelligence committee about senators asking that question outside the closed-doors of the intelligence panels on what is fundamentally a top-secret counter-terror program. I don’t hear a lot of the ranking legislators on those committees — where questions are answered more openly and in more detail — calling for Mr. Clapper’s head. Not loudly anyway. I’m wondering why?
          3. I actually have said earlier — if you go back to the second post, read the first paragraph — that I have no problem with the Guardian revealing the Verizon court order. I even declare that such is a newspaper’s role. My disappointment, I wrote, comes with Mr. Greenwald then going beyond the facts to declare the program indiscriminate, when in fact that editorial supposition remains unproven. In fact, at this point — learning what we have of the NSA phone metadata mining — it may well be one of the more discriminate and limited intrusions on the privacy of individual citizens. Again, go back and read what I wrote. My criticism was specific.

  • Hard not to get the impression that your overall strategy has warped into: drown all critics in words. Does the ability to make *concise* arguments have no value to you? Do we have to read a novel every time you respond to someone?

      • I’m sorry, I just saw this. Delete what, specifically?***

        *** Addendum: To be clear when the comments come in for mediation, I answer them in the same approximate order so I didn’t see this request until I had already posted your earlier reply and responded, and another reader had as we. But to reassure you, I’m not particularly upset by your critique about my wordy posts on this issue. I know that this is not customary on most blogsites, but here, on this site, I’m comfortable dealing in great detail on issues that are of interest. It is actually what makes the rhetoric and argument interesting to me, the fact that we are addressing ourselves to all facets of something complicated. So no offense taken.

        • No worries. I meant for that entire “drown in words” comment. But I don’t mind it being here, with your response.

    • This is a complicated issue, involving technologies, constitutional issues, geopolitics, law enforcement strategies. If you want it simple, you can be easily accomodated elsewhere. There are plenty of people capable of reducing something nuanced and detailed to sloganeering. It’s the stock in trade for a lot of folks, actually.

      As for drowning anyone in words, I wasn’t under the impression that the internet was short on printer’s ink or paper stock. If you are uninterested in this level of detail, you can, of course, cease perusing the material you find on this site at any point.

    • Well, LT, this ain’t Twitter and no one is forcing you to read long posts or long replies. It’s all up to you!

      The short argument is available anywhere and writers who dish it out are a dime a dozen.

      If you are here, then you appreciate the written word, number one … and, number two, these are complex and complicated issues we are dealing with and attempting to understand in the fullest extent of their meaning and impact. The arguments put forth here, therefore, are necessarily non-brief and, if I may say, beautifully so. 🙂

  • Hi David,

    I’ve been following your posts on this issue for a couple of weeks now. The discussion taking place is fascinating. But I’m amazed how quickly people seem to hijack your and misinterpret your arguments.

    My reading of your position is thus:

    The Guardian broke the story about the NSA meta-data collection. At some point they moved beyond the reporting and ventured into speculation about it’s implications. You called out that speculation, asking for actual incidents that exceeded their legal authority. Other posters responded that the potential alone was cause for alarm. You pointed out that rather than deal in the hypothetical, they could sink their teeth into actual ongoing abuse (i.e. the Drug War).

    That’s about it right? Seems pretty straight forward to me.

    Keep up the great work!

    • Mostly. But actually, I am pointing out that while I believe the policy of the drug war is abusive, the tools used to prosecute that war are for the most part legal law enforcement strategies and have been for decades. I am specifically referring to numbers dumps, DNRs, wiretaps — the same technologies being utilized in the NSA’s phone metadata program. (There is other drug war overreach where I might question the constitutionality, but not the logic of court-ordered telephonic intercepts.) This is an important distinction: It’s not as if I think that because an investigative tool is abused in the drug war, which I oppose, that I’m tolerant of it being abused for purposes of counter-terror. No, I think the tools are legal. And if they are misused beyond that legality, that is another question. Just as it is a policy argument whether the drug war or counter-terror is a goal worthy of anyone’s support.

      In the extant essay, the Atlantic writer ignores the fact that I am defending the use of phone metadata by investigators regardless, but citing the drug war and its decades-long use of the tool as an example of a societal hypocrisy, not as an argument for abusing the legality of any law enforcement tool.

  • Dear Mr. Simon,

    I have really enjoyed reading your recent writings on the NSA phone metadata collection program as well as the spirited and insightful discussions in the comments. I am writing now not with anything to add to the discussion but rather a request for you to alter your website’s layout. Please, please, work out a new way to lay out your comments sections. There’s nothing like trying to read multi-paragraph comments that have been squeezed into one narrow column of text.

  • Have you heard the revelations of Russ Tice, another NSA whistle blower, who says they are now recording everything – every phone call, every email/Skype/chat?

    Is that going a bit far?

    He also said that he personally saw evidence of spying on Obama – before he was president, and on Supreme Court judges.

    Is that going too far?


    • If anyone — domestic law enforcement or national security agency — is recording Americans without specific, court-approved warrants, that is another ball of wax. Haven’t I said so? Can we wait until such a report is corroborated and affirmed by professional journalists beyond, say, a podcast by a self-asserting whistle-blower conjuring memory for boilingfrontpost.com. Did we not just go through the last weekend with CNET’s unsourced and exaggerated claims?

      If and when there is abuse, confirmed, then there is abuse, confirmed. I expect that at some point, all law enforcement assets will be abused by someone, somewhere, just as a matter of institutional inevitability. When it happens and is discovered, it will not be as a reed-thin, uncorroborated claim. It will arrive with sufficient corroboration. Thus far, the breathless, over-the-edge hyperbole of non-professional media in reporting what is and isn’t happening on this issue does not leave me with confidence in singular claims. Restraint and discernment isn’t the hallmark of the reporting here.

      • Glen Greenwald isn’t a journalist? The Guardian’s reports and documents of secret courts rubber stamping NSA requests aren’t good enough? Non professional media? What exactly constitutes good media in your view. I wanna read that paper.

        • Are you tracking? The Guardian has not to this moment corroborated actual wiretaps. That is what the O.P. is alleging. Come on, brother, you’re in such a lather you’re not even dealing with the fundamentals anymore. You’re just arguing wildly, for the sake of it.

          And Mr. Greenwald, it is fair to say, wears two hats. Sometimes, he claims that of the journalist, sometimes the advocate. It is in the blurred distinctions between those roles that I actually believe the Guardian’s coverage, while credible and relevant in its initial revelations, slips sadly beyond the realm of good, dispassionate reporting.

          • On one hand, the NSA has been caught in numerous historical abuses, and numerous untruths in the present era, including James Clapper straight up lying to Congress. Just today, General Alexander admitted to Senator Wyden that the NSA’s talking points, published after the Snowden leak, are inaccurate. If The Guardian’s coverage is insufficiently dispassionate to meet your desired standard of credibility, how credible are the NSA’s claims that they haven’t abused the extraordinary powers they’ve been given?

            • I won’t be particularly surprised to find out that the NSA has violated its own claims of restraint, or that this law enforcement asset — approved by a court for a given, credible purpose — has been at points misused, as all other law enforcement assets are. It’s at that point, when actual Americans can be shown to have suffered actual affronts to their privacy and civil liberties, that I think the real business of reform can begin to occur.

              Head-in-the-sand pretending that new technologies and new investigative assets don’t exist or, rather, shouldn’t exist? Good luck with that. If it didn’t work for such an elemental, existential threat as nuclear weaponry in the last century, it’s not going to work for digitization now. That anyone is trying to make a stand at that barricade is evidence of far more credulity and naivete than you can hope to imply on my part, merely for waiting for the NSA and the FISA process to show actual failings.

              And no, I do not believe that it is a thin line between functional American self-governance and a surveillance state. It is a journey of degrees, and whatever affronts to privacy and liberty do occur will not, de facto, end the republic in an instant. They will be instead the real window for systemic reform of the FISA-process and perhaps even a redress of the Patriot Act’s ambiguities with regard to national security agencies cooperating with domestic counter-terror and counter-intelligence. Going headless-chicken over a data pile that has an actual, arguable investigative purpose for a commonly accepted societal goal? That’s the plan? Again, it’s no wonder that even in the wake of the Verizon court order’s revelation, and with all the attendant hyperbole about what is to be feared in the worst potentialities of this data pile, Americans looked and, in the majority, showed tolerance of the enterprise.

              I’m willing to wait for the actual abuse and then target the systemic, rather than the technology. And understanding how many times this country has veered toward the wholesale violation of the constitution — the anarchist/red scare after WWI, Japanese-American internments during WWII, McCarthyism, Hoover, Nixon, the grand scale of unconstitutional executive fiat before FISA even existed — I’m fairly confident that the revelations of overreach in the war on terror will not end the republic, but instead swing the pendulum. The Church Commission wasn’t prophylactic in origin; it was clinical and curative in response to demonstrated pathologies.

              By comparison, this bullshit over the potentialities of gathered phone metadata — a legal investigative tool for generations now — is weak gruel. It can not, and has not, moved the pendulum at all.

              I know it would suit your argument to paint me as technologically disconnected and politically credulous, but my opposition to your point of view is grounded elsewhere entirely. And those moments when illegal and unconstitutional government overreach can be demonstrated are, in terms of realpolitik, the real opportunities to rationalize and properly restrict the use of new technologies. That’s the only reform that can matter in the long run.

              • You criticized me for misrepresenting your arguments, though I linked and quoted you. And I certainly concede that it’s possible to link and quote someone, but still misrepresent what they’re saying.

                At the same time, it is frustrating that, without linking or quoting any examples, you keep characterizing critics of the NSA’s behavior as “going headless chicken” or claiming that abuses will “end the republic in an instant” or “head-in-the-sand pretending that new technologies and new investigative assets don’t exist.”

                There are bad arguments on every side of every controversy. But I vehemently contest the notion that your descriptions of NSA critics accurately capture their/our arguments. As I read the ACLU, various writers at The New Yorker, Reason, The Nation, Empty Wheel, Cato, and various other NSA critics, I see none of the pathologies that you describe. I’ve suggested already that it would be helpful if, rather than imputing these views to anonymous interlocutors, you actually linked the people you are talking about, and quoted the offending passages, so that you make sure that you’re arguing with real views, not caricatures of civil libertarians.

                • Mr. Friedersdorf,

                  First you insisted repeatedly that it was legitimate, in your view, to quote selectively from someone’s argument, even if in doing so you were not addressing the larger umbrella of that argument, but instead substituting an editorial shard for the whole. Now, many posts later you are willing to “certainly concede that it’s possible” to quote someone so, but still misrepresent what they are saying — sort of a Reaganesque, “mistakes could be made.” At some point, perhaps, you will get to the point of saying, bluntly and honestly, that you misrepresented my argument in your essay. The slow progress toward that horizon makes any eventual arrival a little less manful and direct, but hey, you seem to be heading in the correct ethical and rhetorical direction, regardless of pace.

                  Actually, I have been carrying on a dialectic — open-ended — with a number of interlocutors who have been arguing all of the above. You can range freely on this site and see where, repeatedly, it is being argued directly and persistently that:

                  1) The revealed activity is illegal, or has no constitutional foundation.
                  2) That issues regarding internet metadata can be commingled with telephonic communication without any legal distinction
                  3) That the government is already wiretapping us.
                  4) That this data pile has already been used to target everyone from Mr. Petraeus to the AP and Fox reporters.
                  5) That the technological capabilities for abuse are now so great that we can’t risk the legal use of such as an investigative tool.
                  6) That PRISM is already hoovering up all domestic internet metadata for use against Americans.
                  7) That once the secret misuse of this capability is discovered, it will be too late. We will have lost our liberties.
                  8) That if this were not illegal, it would be a secret.

                  In numerous posts here, advocates for these positions have in fact posted the links in support from a variety of media for all of these unfounded assertions. I have, too, read most of the cites in your paragraph. Not all of them are insubstantial or hyperbolic. At points, usually on the matter of FISA and secrecy, I find myself in agreement. But some have been embarrassing. The Nation, in particular, has been notably juvenile and ad hominem at points. And the New Yorker essay was fine as an explanation about the investigative value of metadata and its potential for abuse — to which, I of course, stipulate — but went to such hyperbole as to begin to assert that metadata was actually of greater investigative value and greater intrusion to civil liberties than a wiretap, which is just breathless and silly.

                  Also, to quote my argument properly in this present post, my phrase was not “assets don’t exist” but “…don’t, or rather, shouldn’t exist.” In fact, that is exactly what all the critics of the NSA data pile, are arguing — that the program and the technology should, for no practical purpose and societal intention, be allowed to exist. That is it, precisely. Again, Mr. Friedersdorf, if you quote the phrase in whole, it’s very different than omitting the key words to create the implication that I’m saying anyone denies the existence of big data. No, they are saying that for purposes of the NSA and this program, the data pile and its potential shouldn’t be allowed to exist. Which is, in fact, their argument. Whereas mine is: Let it be and then attack any misuse of the data with rigor and real reform.

                  Tellingly, and In a small, but precise way, your last post — with that truncated quote — is guilty of the same rhetorical crime as your original post. Shaping the other fellow’s argument so as to require less rigor of your own.

                  • I continue to believe that you’ve asserted things, in the course of this sprawling conversation, that you are unwilling to stand fully behind, and that when confronted with the premises that you cannot defend, you retreat to saying that they can’t be accurately quoted out of context. In contrast, I continue to believe that it is fair to challenge the premises of an argument in isolation, without addressing other premises or the conclusion of the full argument, when it is individual premises that you find wrongheaded. That is my position, and I don’t think you stated it correctly. But despite fully thinking you are absolutely wrong, I did you the courtesy of updating my post with your characterization. Short of just agreeing with you when I don’t believe you are correct, I don’t see what else I can do to satisfy you on that account. I shall take the rest of your reply to indicate that you won’t be quoting material you find objectionable and linking to it, and will continue to characterize it as you see fit. Oh well. I appreciate your taking the time to respond, but remain frustrated at the content of the responses. To bed I go. Have a good night, Mr. Simon.

                    • In accurate context, I can stand by everything, to my knowledge. If you have a specific comment, placed in context to the argument, that you feel I have abandoned, please direct me. In all of the activity here over these days, it is entirely possible that I have misstated my own positions somewhere accidentally. The simple omission of a “not” or an ambiguous phrase can occur when one is processing debate at these rates. But I’m sure of what I believe and have tried to convey it with all the precision I can muster.

                      Yes, you added some language by me — shorn actually of those phrases that were critical of your previous performance — at the tail of a lengthy post, the headline of which and the premise of which remains this: It is because of the abuses of the drug war that I will not stand to the abuses of the war on terror. On its face, this is a ridiculous premise for any sentient being. But you battled it mightily and over some length.

                      What I said was nothing of the sort.

                      I said:

                      1) My contempt for the abuses of the drug war notwithstanding, the legality of the investigative assets used in that war is unquestioned and that folks were enduring greater legal intrusions for goals I deem less worthy than the war on terror. And these same investigative tools, used in counter-terror, are no less legal on the merits, less intrusive in practice, and certainly more justifiable in terms of a societal goal.
                      2) Given what folks are legally enduring on behalf of a policy I hold in low regard, I certainly have little patience for arguments that hold up less intrusive, equally legal use of the same tools for a national policy in which I have some greater regard. Such arguments, I argue, reveal a societal hypocrisy.

                      How these two codependent and distinct points became the stunted, half-baked premise of your essay, and how you continue to defend it, leaves me no choice but to take you, your process, and your purposes less seriously than I would like. Your fix to the essay was insubstantial. That commentary remains falsely premised and intellectually dishonest as a whole.


            • The model I most admire did not have advocate reporters. We called such folk “columnists,” or “editorial writers” or “pundits.” The rest of us were reporters. We might believe one thing more than another, but such biases were supposed to be predicted on our prior and continuing coverage of our beats. If we thought something true, it was supposed to be because we had encountered facts that affirmed such. If we thought something bullshit, it was because the facts did not support such.

              That said, is any reporter entirely objective? Of course not.

              But I didn’t cover the crime beat because I was an advocate for crime suppression, or for crime itself. And back then, after reporting on the goings-on in that world, I then didn’t run after myself telling readers what it should or should not mean to them, and what should or should not be done. I left that to the editorialists who were independent of the reportage. Mr. Greenwald’s performance, apart from the initial leak, is evidence of the wisdom in that approach, I believe.

          • “No, I’m saying they are saying that for purposes of the NSA and this program, they are arguing that the data shouldn’t be allowed to exist. Which is, in fact, their argument. Whereas mine is, let it be and then attack any misuse of the data with rigor and real reform.”

            This is so wrong on so many levels. I can’t square this circle, and am utterly horrified that you seem able to. You seem to imply that it is entirely appropriate to hoover up everyone’s entire data so long as it’s not misused. Say it aint so? Maybe I’m reading it wrong?

            As far as I’m concerned the data is already misused the moment they store it without my knowledge.

            • You are not reading it wrong. It is both legal and ethical, and intrusion of having your phone data in a pile in Utah, used anonymously, to try to isolate the telephonic connections between a suspect number and domestic coconspirators is rooted in and premised on an investigative technique that has been in place for all other law enforcement for decades now. I understand that you feel even this is misuse of your data. You have no legal standing for your argument, and I am unimpressed with your ethical standing for that argument.

              If the datapile is put to other purposes, or if it ceases to be anonymous at any point prior to a singular number being identified and then subjected to more judicial oversight prior to additional investigation, then it is indeed misuse, both legally and ethically.

              • Wow. Well now I know where you stand on this issue : according to you it’s alright for the government to store everything I do on the net, every email, every facebook post, every blog post, every stupid thing I’ve ever done on the net (should be a few megabytes right there) in the hope that the government won’t abuse it – so long as one day it might come in useful to stop a crime? Hilarious! Where does the surveillance end? Why not microchip us as well – that’ll work. It seems you don’t have a cut off point in regards to basic privacy invasion and any invasion of it is predetermined not by any ethical consideration but by the technological ability of anonymous (how hypocritical) government drones to record it. Oh man, you’re one scary dude!! Shakes head in disbelief.

                • No. Fuck no.

                  We are not talking about all of your internet activity. We are not talking about PRISM. We are not talking about the internet.

                  I know that capital letters are an egregious affront on the internet, but Mr. Ex-Forces, you have stumbled into an error that I have been correcting for the last two weeks, and you have ignored repeated admonitions to be accurate with what you read in my responses:


                  You: “… according to you it’s alright for the government to store everything I do on the net, every email, every facebook post, every blog post, every stupid thing I’ve ever done on the net (should be a few megabytes right there)…”

                  Do you see your continuing problem?

                  I have repeatedly pointed out that I have a problem with the government gathering internet metadata in a similar fashion because the metadata in that case is indivisible from the actual content. The same limitations between a phone log and GPS info and the actual conversations is not extant with regard to personal communications on the internet. At this point, the government says it is aiming PRISM overseas and not using such a program domestically. And yes, I would have a problem if it was used domestically without comparable restrictions to telephonic communications and without singular court-ordered warrants to examine the content of anyone’s emails or communications. I have said this repeatedly, too. My initial post came after the Guardian’s revelations about the phone data pile, and spoke directly to that. The PRISM program was revealed a day after that post. I have spoken separately to both things and not conflated the two, as you continue to do.

                  Do you think you can now proceed to segregate the separate issue of the phone data and that domestic program from your internet activty? Or are you going to remain in hyperbolic tumult for the foreseeable future?

                  • Phew, had me worried for a moment. Took me a while but I got there in the end. ” Or are you going to remain in hyperbolic tumult for the foreseeable future?” 🙂 I’ll do my best to tone it down to match the ambience.

                    Just out of curiosity, last night I did a quick lit search for journal articles about the balance of privacy and security – pretty thin on the ground. Can you recommend any?

          • Calling Mr. Greenwald an advocate is sort of a scary thing to hear these days. Have you seen David Gregory’s exchange with him where he called him a polemicist and asked him why he shouldn’t be criminally charged? I don’t think you mean it this way, but I think there are a lot of weasel words being created (like advocate and polemicist) that give a convenient excuse to say that a person isn’t a true journalist and shouldn’t be protected. Was the AP spying and the DOJ threats against journalism scandal that long ago? It is starting to seem that way.

            • He is and has behaved as an advocate for a particular editorial position. Don’t be scared. That’s just true. Nothing wrong with being an advocate. A lot of good advocates in the world and we can always use more for the good causes. But being an advocate and pretending to an impartiality with regard to reporting is problematic.

              If some other goofus is talking about charging anyone criminally for engaging in journalism — even journalism with a flawed presentation — or for engaging in advocacy, then this is a stupidity unto itself. No one here is engaging in such. Don’t even begin to claim otherwise.

        • Here is a fully fleshed-out of essay exploring Mr. Simon’s’ 2 hats theory regarding God.. I mean Glenn Greenwald. As well as some other rather disreputable traits you’ll find in his work if you can be objective enough to take your own liberal hat off for a minute and look at the man and his work objectively. A word no one seems to care for when it comes to journalism anymore. Sad really. Orwell thought it quite important in his own journalism. Which is probably why we’ll still be reading and quoting him, long after Mr Greenwald is dead and forgotten. Enjoy.


          • I’m not comfortable with any ad hominem that goes to Mr. Greenwald’s person. I’m content to critique his performance, and with his later advocacy on behalf of his own revelations, and his willingness to assert for the most provocative explanations of the NSA program, I think he hurt his own credibility. It’s the performance that I want to judge, not the person.

  • I kind of don’t get the media’s cognitive dissonance over your stance — I mean, the show was called THE WIRE, not THE WIRE IS BAD. The show consistently demonstrated how thoughtful and legal use of electronic surveillance could lead to prosecution and/or prevention of serious, society-damaging crimes — and enhanced detectives’ education in crime-solving — whereas illegal use of surveillance (“Fuzzy Dunlop”) rarely served anyone well, either the cops or society at large.

    There’s no contradiction here.

    I don’t have much to add to the debate beyond that. I guess I’m supposed to be outraged by this NSA business, but since when is government surveillance of electronic communications new? Does no one remember the Patriot Act? Does no one remember J. Edgar Hoover? Richard Nixon? Even Abe Lincoln had postal mail from the Confederacy opened and read during the Civil War.

    If surveillance is being used to harass and suppress one’s political enemies (as Hoover and Nixon did) , then it’s very, very bad. If it’s being used to prevent acts of terrorism or other violent crimes, then it’s good. Like any tool, it can be used for good or evil. To me it’ s that simple…and maybe I’m naïve, but I’ve always known not to speak about whatever crime I’m committing over the phone! This is why codes have been used in nearly every culture since civilization began.

    I don’t even get why it’s a story. Maybe because there are certain political forces that wish to exploit certain “anti-big government” sentiments in the population, specifically during THIS administration? I can’t imagine any previous administration hasn’t gathered the same or similar intelligence, in as much as they had the technological capability.

    I don’t mean to undermine the seriousness of the issues; I don’t want us to end up like China but I think we have a long way to go until we get there. The simple truth is that we cannot stop corporations from holding onto the information we submit through their networks — indeed, we are giving up our exclusive right to that information by using their platforms to send it, just as an author cedes copyright to his publisher — and we cannot stop the government from seizing that information. We have never been able to. The important thing is that we maintain a system wherein this information cannot be used in a court of law unless it was obtained fairly and legally, with due cause — and where our general political freedom of speech is preserved and cannot be used as an excuse to obtain other evidence of unrelated criminal activity.

  • I don’t for a minute believe that the government is gathering information on all of us for our own protection. They invaded Iraq and Afghanistan for our protection, also. Do you feel any safer?
    The war on terror is just like the cold war — an excuse to control information and the press, compile blacklists. Prosecuting whistle blowers like spies under the Espionage Act is like prosecuting Eugene V. Debs for denouncing World War I. Where’s the outrage?

    • My guess – the system has worn people down so much they barely have the energy to get out of bed.

    • Actually, I’ve reached the stage of total exhaustion on the Prism scandal. I was having a beer and thought : why do I even care? I can barely pay my bills and I’m spending all day worried about PRISM? Fuck it. No one else seems to give a shit. My friends don’t. Why should I? Fuck the NSA, and the Brits. Let them have my data – I no longer care.

      • They were counting on that.

        Yeah, this is me, going the other way now, feeding the conspiracy theories. No rest for the weary. It’s such a good argument, I’ll take the other side if it’ll give you a second windl 😉

  • This may not necessarily add to the debate but I found the timing interesting: This week we in the UK have discovered that undercover police were deployed to infiltrate and spy on the family of the black teenager Stephen Lawrence after he was murdered by racist thugs. The aim of the operation was to gether information which could be used to derail the family’s campaign for justice, as the police were coming under intense scrutiny for bungling the case. We also learned this week about a number of undercover agents deployed to infiltrate peaceful demonstration groups, and how a number of these agents used sex as a means of gaining the trust of their targets, and leaving a number of fatherless children and wrecked lives in their wake.

    I’ve heard it argued in comments here and elsewhere that the public reaction to Snowden’s revelations has been unmeasured and unreasonable – I’m not so sure anymore! We are told continuously that law abiding citizens have nothing to fear from our intelligence agencies, in the face of overwhelming evidence that the opposite is true.

    For the record, I agree with Mr Simon insofar that I believe our efforts should be directed towards ensuring appropriate means of accountability and transparency are included in the process. I also believe it is perfectly reasonable to be very afraid of the situation as it stands.

    • Am aware of the Stephen Lawrence case. My director of photography on The Corner, Generation Kill and Treme shot the Greengrass film, which was excellent.

      The equivalent argument against this NSA data pile, if applied to your scenario would be this: As police can abuse their ability to do undercover operations, no more undercover operations. Any law enforcement asset can be properly used to solve or suppress crime, and misused as well.

      • I’ve not seen the Greengrass film, I will check that out.

        Obviously, I would not make that argument. I think it would be pointless to expect our intelligence agencies to ignore the resources at their disposal, and I also agree with you as to where the reform needs to take place in the process (however, I don’t feel greatly optimistic that the necessary reform will occur without their being calamity first). I was just using these timely events as further evidence that there are justified fears here, as you have also pointed out.

        • We are in full agreement.

          Nixon and Hoover were required for the Church Commission to be convened. I am not credulous when it comes to the institutional capacity for overreach and misuse. When actual Americans have their privacy unreasonably impaired and their civil liberties infringed, then this will be an actual scandal, and then some substantive reform becomes possible.

      • I think your argument here is a little too general and I have two complaints against it.

        1) You are arguing from the common sense view that traditional law enforcement techniques and assets can be misused, but if they are used properly and with sufficient oversight they offer a great benefit to our society. And I agree with this. You could say that it scales linearly in this case. Perhaps for every 50 criminals that these methods protect us from there is 1 innocent civilian who is abused (and the value will go up or down based on oversight). In order to use the traditional techniques in a systematically oppressive way, you would have to secretly coordinate with hundreds of thousands of LEOs around the country (for example, to spy on the Occupy groups). But can you say that these new methods would remain linear? It would take only a handful of people to be able to use this technology to unlawfully spy on every group that you could want. The computers do all of the work behind layers of obfuscation and security, while previously any of the LEOs could have leaked it. This isn’t a moot point because this country has a long history of spying on political enemies. Before you had to ensure the loyalty of your FBI spies, while today all that you need is a couple of people who have access to the computers and the secrecy to keep their actions hidden from the public (and in fact, from an espionage point of view, it could even be used by a foreign power AGAINST us). It isn’t that this technology can’t be used for lawful purposes, but that it is far more powerful. It is basically a ball of plutonium. You could use it with the proper oversight to build a nuclear reactor and provide useful power to your society. Or you could use it to make bombs that could destroy your society.

        2) Continually adding more and more powerful assets to law enforcement and intelligence services is just a continuation of the military-industrial complex into other realms. It makes you look for enemies to justify its continued existence and it ignores the reason why the buildup was necessary. The police in most of the developed world don’t need SWAT tanks, paramilitary training, or even bullet proof vests. Why do we? Because we started the War on Drugs. It self-perpetuates. All of this technology we’ve given to the police are needed to fight the War on Drugs. And why do we need to fight the War on Drugs? Because it is so violent (just look at the tanks and assault rifles we bought to fight it!). The War on Terror is the same. We are in a loop of self-justification. If we stopped the War on Terror and our imperialist foreign policy, there would still be terrorist attacks. And if we stopped the War on Drugs, there would still be drug crime. But in both cases, it would not nearly be the same extent. We need to stop fighting in order to make ourselves safer.

        • The risks are higher when the potential power of the asset is greater, certainly. Which is why the reform of the oversight and the autority granted for that oversight is so important.

    • …. if you go to about 7:50 you can get a quick look at what I’m refering to … ” … Prism is about foreigners… ” … therefore, they completely missed ANY potential info re. the Boston bombings …

  • Make everything simple, but not simpler. Remember one thing – the 4th amendment is 54 words long, and it said plenty without one ounce of fat. I’m tired of Simon’s overblown arguments, as he does the rumba to his own tune (often niftily) around one simple premise – The US and British government is spying on every single American, and yes, by default – the rest of the world. Yet, he seems able to defend this cos, yo, back in the hood, they used to wire tap phones, and it’s apparently “legal”. Haha, where the hell has this guy been? This isn’t even about the drug war, although Simon seems to think it is related. I’m against the drug war, and privacy invasion. This is about world domination by the US.

    Don’t be so bullheaded please Mr Simon. This aint all that complicated.

    • We disagree. It’s not simple, in my opinion.

      If you are ideological, and you think the government bad and intent on evil only, then it’s quite simple. If you think the government — our government; this is a republic after all, struggling between oligarchal tendencies and representative governance — is capable of both good and bad governance, then it’s not simplistic. And if you think that privacy and security both have value to a society, and that shared responsibility is as much an attribute of a great nation as individual liberty, then things are going to get complicated.

      Simple is the exactly what it sounds like on this issue. Sorry.

      • Well balancing privacy against security is pretty stupid in my view. How unsafe are Americans? How much of their fear is based on paranoia whipped up by the media and politicians? How much terrorism is actually caused by boneheaded American policies?

        In fact, I wholly agree with Chomsky – stop participating in terrorism, and you won’t be terrorized. Stay in the ring, and expect to get slugged.

        Instead of decreasing privacy, decrease terrorism – if that doesn’t work then, and only then, am I willing to discuss privacy breaches.

        Also, since the US portrays itself as a democracy , I don’t remember any of these privacy violation policies being put to the vote.

        This saga is doing untold damage to the US’s reputation. Have you read the Guardian lately? America’s reputation is being flushed down the toilet.
        In today’s edition, the Germans have sent a letter to the Brits writing how outraged they are. It boggles the mind.

        • What should privacy and security be balanced against? Are they both absolutes? Is only one an absolute? Explain yourself. This doesn’t make any sense. No police work can occur without some violation of the privacy of suspects, witnesses, etc. All legal intervention in the lives of others — which is necessary for the investigation of any crime — requires some mitigation of pure privacy. Are you just spouting words? Or are you applying them to real-world realities.

          You and Mr. Chomsky can theorize about what policy choices will not induce some people to pursue American deaths, but really, you’re actually disassociating from the motivations that brought on 9-11. The focal point of Bin Laden’s rage and the gravest affront of American policy in his mind — the one that led him to strike out on his own and pursue Al Qaeda’s course? Not American terrorism as you put it. Not Israel-Palestine. Not Afghanistan or Iraq or all that came after. No. It was the U.N. sanctioned restoration of Kuwaiti sovereignty, and the requested presence of American forces on the Arabian peninsula to resolve the first gulf conflict. That was what cut it for Mr. Bin Ladin. Spouting on about American terrorism doesn’t exactly envelope that reality in any honest way. But hey, I guess if it’s more fun to blame the victims than to actually be honest about the affronts that really led to 911, then you’ve made the right move.

          Also, you need to reflect on the American form of government and who decides what is legal or not. Constitutionality is not subject to a vote. Nor should it be. Constitutionality is not a populist notion; we don’t throw legal interpretation up to referendum. That’s an astonishing statement on your part. What is and is not a violation of the Fourth Amendment is ultimately to be arbitrated by the U.S. Supreme Court. You can disagree with the court’s decision; you can rail against it, in fact. What you can’t intelligently do is complain that a popular vote ought to be held on what we think our rights and responsibilities are under the constitution. Those things can never be voted away or instilled by referendum. Our republican form of government doesn’t work that way, and it never will.

          You’ve made sense at points, but this post is just faux populist sloganeering, unconnected to historical accuracy or the fundamentals of American governance.

          • “What should privacy and security be balanced against? Are they both absolutes? Is only one an absolute? Explain yourself. ”

            No of course they’re not absolutes – but one has more weight than the other. Getting back to a point I made earlier – sometimes you have to make a leap between what just know is right and what is abhorrent. Is morality absolute ? Don’t drag me into the mud. Keep it simple – Privacy should be a given. I just know it is so.

            So, what should privacy and security be balanced against? Health (regardless of Nietzsche’s philosophy that there is no health as such and any attempt to define such a thing is doomed to failure) . If our societies aren’t for promoting health – then what are they for? Control. Health for every citizen and therefore society at large trumps everything in my book, and when you erode privacy you do untold immeasurable damage to the human psyche and therefore to their health and our collective ability to self-determination regardless of their so-called “security” at any given point in time. At the moment, your approach in my view is akin to cutting off the head to stop the headache. More security does not equate to better health. Privacy is really easy to measure, you either have it or you don’t. And we don’t anymore – and we CAN measure it quite simply by observing what we don’t have anymore. Moreover, who can correlate privacy with security except on some metaphysical battleground. But security? That’s more esoteric. I’ve lived in one of the most violent societies on earth – South Africa. But yet I felt more freedom there than I have in many western countries. Just me. Security is all in the head. Security is a bit of a myth in my opinion. A weasel word. Security from what, exactly? Death? We all die.The bogeyman? Security has become a word bandied about by politicians so they can exert more control over us through fear of the unknown.

            I realise this post is not exactly logical, but I’m a human, no Dr Spock, and that’s my gut feeling (yes, again).

            • We can’t operate as a constitutional republic based on your gut, or mine. That does not work.

              • Quite. So I’m still waiting for your online banking details since you don’t since the complete violation of everyone’s privacy is a big deal (and yes, meta data includes passwords). Check the guardian.

                • Well, you’ll need not a full-blown warrant with full-blown probable cause, but you will need a court order or subpeona signed by a judge indicating an investigative need. That’s for starters.

                  And again, you are doing apples and oranges. Phone metadata is one argument and it has been resolved in the same legal way for all law enforcement initiatives going back more than three decades. But you bound from issue to issue without even noticing: Online information is not telephonic. And there, the legal standards for privacy intrusions need to be brought at least to the point of equality with phone communication, as I continue to stipulate. The argument in the original post — and continued here in this one — is not about the PRISM program, but about the Verizon court order.

                  To function at this website, Mr. Ex-Forces, you are going to need to argue with some care to accuracy and detail, and not scattershot, all sloganeering and no actual attention to the specific.

                  • Fine. If you wanna talk specifics why do you keep referring to archaic laws about wiretaps when we’re talking about the data pulsing through internet cables being hijacked?

                    Diverting information from a fibre optic cable has no relevance to a phone wiretap in scope or practice. That bonehead analogy about payphones? Nickles and dimes compared to what we’re now contemplating. And scope matters. Hey, you wanna talk about apples and oranges.

                    That’s it. I’m tapped out – I’m slunking back off to the Guardian now (second rate paper that it is). Before I’m booted by the sounds of things.


                    • Again, for the seventy-seventh time, scope does not matter with regard to assessing the intrusion to an individual’s privacy and civil liberties. That is a canard. I’ve discussed it in detail elsewhere. The analogy about pay phones stands. Just as the analogy about grabbing the numbers of tens of thousands off cell towers stands. And I believe it will stand through any legal challenge that argues that scope somehow makes the affront to any individual’s privacy rights or civil liberties greater.

                      Agreed that that internet ought to have the same, equal protections as telephonic communications and that such legislation would be a fine avenue for actual, systemic reform. But understand that right now, the hoovering of the internet is allegedly aimed overseas and neither the Guardian nor other outlets have ascertained that PRISM is yet targeting American citizens directly, although it is credible to believe that overseas data mining is following communications that go domestic.

          • “Also, you need to reflect on the American form of government and who decides what is legal or not. Constitutionality is not subject to a vote. Nor should it be.”

            In theory – but given that they (government) seem to have abandoned the constitution’s principle (or at least interpreted them generously in their own interests) it is time to put it to the vote. What does the common man think of these things? Who knows the decisions are now made without any democratic process.

            • No, Mr. Ex-Forces, because you have decided that the government has abandoned the constitution, we do not get to “put it to a vote.” Putting it to a vote would actually be abandoning the constitution. De facto. How can you not see this?

              If 51 percent of Americans decided, at a referendum, to vote against the First or Fourth or Fifth Amendments as put on a ballot, would those pieces of the Bill of Rights be subject to recall? This is the point at which half-baked populist screeds offer us no actual hope for self-governance as a constitutional republic. The methods for amending the constitution are certain and far more remote than that. And the only means of interpretation short of amendment is judicial interpretation. You want to argue that the U.S. Supreme Court has failed in this regard, fine. But please, no more bullshit about “putting it to a vote.” The only recourse in a republic to the role of an independent judiciary is to pick up a brick and say fuck it to the whole edifice of constitutional republicanism. Your logic destroys the constitution in order to save it.

              • Glad you have so much respect (in theory) for the constitution. So what problem are you having interpreting the 4th 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”

                Seems clear enough to me. I’m guessing you PC is somewhat different to mine.

              • Putting something to a vote is called democracy Mr Simon. It’s not for me to judge if millions of Americans are boneheads – or you. Otherwise, why even bother having elections at all? The small self-appointed elite can install their next chosen puppet whenever they want to. Oh hold on….

                • We are not a pure democracy, actually. We never have been. Not for one moment since the moment of national origin. We are a constitutional republic. Our framework for self-governance includes many democratic elements and some decidedly oligarchical ones. It is neither perfect nor hopeless, and those who hew to either assessment are, I think, ignorant or dishonest. The founding fathers were neither divinely inspired genuises, nor were they impractical ideologues.

                  But the constitutional girding of our entire governance is not subject to simple referendum in that it contains what we claim are the core standards and elemental rights of citizenship. This core is not and never can be subject to the voice of — and possible tyranny of — a majority. The interpretation of that document — short of constitutional amendment, not mere referendum — is the perogative of the third branch of the republic, the judiciary. That can result in an epic fail (Dred Scott, Plessy, Citizens United) or expansive and honorable humanism (Brown v. Board of Education, Gideon, Miranda, etc.) as it is, like everything else of human construct, the work of mere men and women. Who decides who gets appointed to that high court? Those we elect. That, along with the high-level staffing of the other two branches of government, should answer your overarching reference to elections.

                  I’m sorry, but you’re being silly here. You’ve abandoned an intelligent debate about an actual issue for a high school civics lesson. It seems a poor choice. For someone who is hungry to change our societal direction, this line of argument suggests that you don’t understand what are the actual levers for change, and what are not realistic or legitimate levers for our form of government.

  • Been sharing your stuff (and the comments) all over that place Mr. Simon and it has improved conversation and understanding all over my little corner of the world! (Seoul)
    Got some people all pissed off too. Which has been fun for me at least.

    • Amazing thing to be engaged in debate with people so varied and geographically distant.

      My neighbor down the block said he learned that I was maintaining a blog from a friend of his — in Thailand.

      Me: “Lemme guess, the NSA posts.”
      Him: “Yeah, that.”
      Me: “Really? Not the James Agee post?”

      • Damn…it was so long ago in “keeping up with all this crap” time that I don’t even recall how I got here???

        I think I was blowing through the NYT section of my rss feed (Damn you Google for killing Reader) and came upon your name in a Krugman or Brooks column. Or something. Or someone bitching that you weren’t upset enough.
        Anyhoo my wife and I were late comers to The Wire (damn HBO seeemed expensive back then.) so since then (plus Treme) we have become big fans but had no clue that you had a “blog/website”.

        She’s Korean and doesn’t give two-shits about this non-story (and that’s because she just assumes everyone’s being watched all the time- laws be damned) but has been tickled kimchi-pink that YOU actually have taken the time to engage who she calls “the Internet debate geeks like you (me)”

        So now on top of telling all of her of friends (she’s 28) to watch The Wire b/c it’s great, now she also affectionately says “Watch The Wire b/c David Simon’s a regular-type dude- One of those news Internet news geeks like my husband.” And actually it’s worked!

        Moving back to the states in August though (NC) so…

        btw the CEO of my the mid-size (ain’t talking LG here) IT company that I work for has long said that if he HAD to pick an “English name” (which is common here) he’d pick Omar. And yes he’s seen all 5 seasons of The Wire and that’s why. He’s a cool cat.

    • Is it? What is a third possibility? I’m willing to consider.

      Empirically, it was claimed that B was my argument for A, while a read of the essay indicates other arguments for A, carefully detailed, were omitted. Mr. Friedersdorf conceded in comments below that he did omit these, and felt justified to deal only with B. And de facto, by substituting B for A and ignoring A, the entire argument is fully misrepresented.

      If the gentleman was neither inattentive to the actual argument nor intellectually dishonest in his mischaracterization of that argument, then how is it that we are at this point at all? The only other supposition you can offer is that he did not misrepresent my argument, but then why are we able to acquire a wholly different argument for the ethos and legality of the NSA program from within my actual essay, but not from Mr. Friedersdorf’s account. The error may be purposed or unintentional, inattention to accuracy or intellectual dishonesty, but de facto, what I actually said in support of the NSA program is simply not what the gentleman utilizes in describing my support and the reasons for that support.

      Honestly, I’m comfortable with any additional logic as to why this disconnect occurred. If you have a third-path workable theory, I’ll readily concede that I have jumped to a choice of conclusions without considered cause.

      • Being true or not doesn’t stop it from being and ad hom. You attacked is credibility, intelligence, and integrity instead of attacking his argument.

        You didn’t paraphrase or quote anything Friedersdorf said. Many ad homs are true, but nearly all of them are distracting, unless your beef is with the person, and not thing things the person wrote.

        • I see your point. To my mind, I am questioning why the argument would be so thoroughly mangled by his process, and I am extrapolating the only two causes I can honestly conceive, and saying I don’t know which applies. I am addressing performance, which is not ad hominem. But in doing so, I am also suggesting, at least on the one hand, an ill motive, which is such. And even with regard to his possible inattention, I have gone beyond this singular performance to suggest a chronic behavior when I have no knowledge of such.

          Let me retract that sentence (and I will from the post): I don’t know why he systematically avoided my primary argument and wrongly substituted something else for that argument in his essay. I have no way of knowing, and no basis for ascribing motivations or circumstances to the result. I can only know that it is, in fact, the result.

          Good on you for pulling me up.

      • From where I’m standing, you disagree with what you think Mr. Simon’s position is. Judging by your most recent comments, that doesn’t seem to correlate to what Mr. Simon has actually said. Big difference.

        • That was before I figured it out that he’s against hoovering up the net. We’re in harmony in regards to the PRISM scandal (almost), we were arguing at cross purposes previously. I notice your reluctance to restate Simon’s position, most telling.. Does anybody have a cogent and brief summary of his key points? I’ll try.

          Phone tapping phones en-masse to catch drug peddlers is legal (if not ethical) because honkey was asleep for a few decades. Some other stuff about corroboration. I’ve ignored that.

          Lying by intel agents is par for the course – as long as it’s to the public (who employ them). In private it’s is a different story (although how would the public find this shit out?)

          He thinks Snowden has done damage (and by proxy whistleblowing is dangerous).

          Glenn Greenwald aint no thing. The Guardian sucks. Don’t fuck with what Simon says, or what you think he says – it enrages him.

          Ad Hominem is to be taken seriously. Only Simon understands it.

          Simon is displaying classic signs of survivor guilt. Just an opinion. Being embedded with cops did something to his brain..

          hehe, some fodder for you to think on.

          • Simon’s stance on PRISM hasn’t changed, so you forming your opinions without that information is exactly what I’m talking about.

            Why should anyone summarize Simon’s arguments? If you want to discuss it here, it’s your responsibility to read it all, lest you come across as a person uninformed. If you don’t want to invest the time and thinking, that’s your choice, but you leave yourself vulnerable to criticism. Worse than that, you miss a tremendous opportunity to expand your thinking.

            As far as survivor’s guilt? I have no use for Dr. Phil, much less Armchair Dr. Phil.

  • It is true, Mr. Simon, that you wrote in your essay, “I am not saying that overreach in other realms of the criminal justice system justifies overreach anywhere else.” The problem is that, while you said that in order to preempt criticism, elsewhere in your essay you proceeded as if — as I put it in my accurate piece — “America’s inadequate reaction to the drug war should affect the degree to which we object to the national-security state.”

    I’ll quote you: “This, too, is why I won’t climb the barricade where Mr. Maciej thinks I ought … to do so only at those places where the cost is to one America, and not the other, is to assure that only one part of our country will continue to sacrifice, and that the rest of our nation will remain inert while real affronts to civil liberties continue.” You’re saying that *part* of the reason that you won’t “climb the barricade” on NSA surveillance is because of longstanding inequities in the drug war. That isn’t saying that one justifies the other — just that one justifies not fighting against the other as hard as you might otherwise.

    That is what I complained about very precisely. So no, there was no failure of comprehension, nor was there intellectual dishonesty.

    In lashing out at me, you’ve managed to evade several of the critiques that I and others have raised about your piece. Again in this blog post, you write, “Given the last forty years of an unimpeded drug war, the sudden, hyperbolic reaction to these same tools used by the NSA in counter-terror programming is indicative of a callow self-concern, and general legal ignorance, on the part of those who now oppose one of the tools when it is aimed, even less invasively, at a wider swath of the population.”

    I call bullshit.

    Who are these people who have never objected to the drug war, but now object to the NSA? I’m sure you could find a few in a country of 300 million people. The critiques of the NSA that I’m reading are coming from the ACLU, which has objected for many years to the way the drug war has diminished the 4th amendment; from the folks at Reason, The Nation, Cato, and the Center for Constitutional Rights, all of whom were speaking up against surveillance and the drug war long before the current controversy; from Glenn Greenwald, who shares all of your and my concerns about the drug war; and from many other consistent civil libertarians who are similarly consistent, myself included, but who you ignore. The legislators objecting to this include Senators Paul and Wyden, whose concerns about the 4th amendment predate the Snowden leak, and extend far beyond it. But you don’t even acknowledge these prominent voices when you make your vague, hyperlink free characterizations of NSA critics.

    • I haven’t lashed out at you, Mr. Friedersdorf. I’ve attacked your argument, and I’ve said it didn’t accurately reflect my own in any regard. Eschew the ad hominem, for starters. We don’t know each other beyond the argument. I am sure you are a fine fellow regardless of how much we will disagree. Now then:

      “This, too…

      The “too” is everything; it tells the tale here. The “too” makes that part of the critique dependent on all that came before in the essay. And, if you are honest and trying to confront the totality of my argument, it requires that you address the fundamental premise that came before, rather than isolate only the dependent point and make that the subject for a singular and misleading critique. The “too” followed a full-blown, point-by-point analysis of why the NSA phone metadata program is not only constitutional, but legitimate in its stated purpose under the FISA court order. This you ignored, fully. You severed it completely from my later disdain for the hypocrisy in arguing otherwise now, with this program. But more than my full defense of the NSA data pile on the merits, I actually went even further in the essay, pointing out that my assertion on behalf of the legality and justification of this specific NSA program is based not simply on the use of comparable assets in the drug war only, but in all crime suppression for the last four decades. I actually moved beyond the drug war — clearly pointing out that my argument isn’t grounded in my distaste for the drug war, but in the legitimate use of phone metadata to solve all crime, a goal that I embrace, as does most of our society. I specifically referenced a general list of felonies, and even a specific example of the proactive pursuit of a serial rapist — going out of my way to make it abundantly clear that my unwillingness to draw the line at a given technology was principled on something more universal than my opinions on the drug war. You ignored all of that. It simply didn’t fit the narrow confines of what you were hungry to claim.

      Having omitted all of the above as context, you could wrongly cite, in isolation, my further acknowledgment that I could not get exercised about this use of data by the NSA because of the last forty years of the drug war — and miscast this the premise for my overall stance. In fact, it is not the premise. It is additional evidence, to me, that the overreaction to this NSA program is not rooted in a legal or moral ethos, but in self-centered ignorance of actual ethics and legalisms. But first of course, the ethics and the legality were considered by me in full. Not by you. You built a straw man and then you fought him nobly and, I hope, to considerable self-satisfaction. But I was standing elsewhere. Still am.

      As to your final point asserting that there is some dissent from the drug war, I don’t actually know of any sustained opposition to the use of phone metadata in the drug war or in general crime suppression. I think you’ve hastily commingled both the opposition to surveillance and the drug war in a generalized way. But the hypocrisy that I’m targeting here is in no way generalized, it is specific to this law enforcement asset and this particular intrusion into the privacy of individuals.

      Frankly, I’ve followed for years now the growing opposition to the drug war and virtually all of it, including my own, comes on political or moral grounds, arguing against the efficacy and brutality of the drug prohibition and the extraordinary rate of incarceration. Have there been arguments alleging that the use of phone metadata in the context of the drug war is unconstitutional or dishonorable? Can you point to some articles in which opponents of the war have attacked the use of phone metadata or even Title IIIs as a means of gathering evidence of criminal conspiracies and criminal activity? I’ve read almost nothing in that regard from the people you cite, or from anyone at all. In short, I don’t doubt that there are others, many more every day, who are opposed to the drug war and are willing to say so.Have they also written, before this moment, to complain that law enforcement was using and sifting phone data in order to do casework? On what basis? I’d like to read that.

      If there was no failure of comprehension, then, well, perhaps it is the other thing, regrettably. I hope not. As I said, there are good arguments to be engaged on this controversy. But affixing me with a point of view in which I would blithely accept unconstitutional or immoral affronts to civil liberty because of earlier such affronts? No, that’s just ridiculous. Other arguments, more substantial than that, are in play here. If you can reread your work and still believe that you’ve dealt with the totality of my position, or that readers would have an honest understanding of that position from your account, well, I don’t really know what else to say.



      • Mr. Simon,

        I have, in fact, written two posts about your commentary on NSA surveillance. The first one was here: http://www.theatlantic.com/politics/archive/2013/06/by-david-simons-own-logic-nsa-surveillance-should-alarm-him/277049/

        We’ve been arguing about my second post.

        In my view, you get some things right and other things wrong — and I explicitly rebut things that I believe you got wrong, not the full sweep of your argument. Truth be told, I don’t think that the full sweep of your argument can be rebutted as a cohesive, nuanced whole, because I think it is in tension with itself, something that is obscured by the wandering nature of the argument. I have no interest in spending 3,000 words deconstructing your whole post, because it’s cohesiveness isn’t in fact the point.

        I am interested in specific arguments, and mine is that the insufficient reaction to the War on Drugs should not inform or influence anyone’s willingness to object to what the NSA is doing. Notice I do not say, “should not be decisive.” No, I don’t think that it should play a role at all. I think that isolating narrow points of disagreement is useful. As I said in my piece, “forgive me if I bristle at that part of your reluctance to oppose the NSA that’s grounded in the fact that the American masses didn’t meet your standards (or mine!) on the drug war. I find that part of your reasoning vindictive, irrational, and likely to harm some of the categories of citizens you profess to want to help most.”

        *That part.* Not the other parts. I readily agree that your position is composed of many other arguments, all of which are relevant in the conclusion that you’ve reached. I objected narrowly to one thread of your reasoning, just as you’ve responded to some parts of my argument and not others.

        I’d like to repeat my complaint that, when you charge hypocrisy, you should cite the individuals or institutions that have been hypocritical, rather than vaguely complaining about critics of NSA surveillance. As for opposition to the drug war, and particularly the way that it has enabled the surveillance state, I hope to eventually publish a deeply researched piece on the subject. But for now, one place to begin might be the 2011 ACLU blog post, “The War on Drugs and the Surveillance Society.” http://www.aclu.org/blog/criminal-law-reform/war-drugs-and-surveillance-society

        You might also read Glenn Greenwald, writing at the Cato Institute, complaining in 2010 about all the things he’s kept complaining about after the Edward Snowden revelations: http://www.cato-unbound.org/2010/08/09/glenn-greenwald/digital-surveillance-state-vast-secret-dangerous

        You might also grapple with Julian Sanchez’s point when he wrote (again, long before the Snowden revelations) “Debates about surveillance policy typically focus on the formal legal constraints on government monitoring, but physical and technological architecture are often as important determinants of the real scope of surveillance in practice — a point pithily summed up by Lawrence Lessig’s maxim that ‘code is law.’ Consider, as a thought experiment, the difference between a society in which police may, pursuant to some legal process, install cameras and microphones in private homes, and a society in which, pursuant to precisely same process, they may activate the cameras and microphones required to be installed in all homes. The plummeting cost of data storage, the increasing ubiquity of network communications, and the vastly increased capacity of law enforcement to fruitfully analyze ‘transactional data’ subject to far more anemic protections than the contents of communications all combine to make an extraordinary degree of monitoring both more feasible and more attractive to investigators, even holding constant the legal framework within which that monitoring occurs.”

        When I have more than 5 minutes to dig, I’m confident I can find old objections to use of metadata specifically. For now suffice it to say that a) scale and changing technology matters; b) your charge that people are suddenly worried about the surveillance state in a way they weren’t about the drug war doesn’t require me to find a specific old piece about meta-data — it is enough for me to demonstrate that many of the most prominent voices complaining about the NSA have long held, and specifically written, that the drug war was empowering an intrusive, dangerous surveillance state that victimized many Americans. It just isn’t correct to argue that these people didn’t care until they began fearing for themselves.

        • There’s a lot with which I might consider and grapple, Mr. Friedersdorf. But what I require, first, before entering into a serious discussion about anything is to know that my actual ideas will be conveyed and that the other party is committed to using rhetoric carefully and with consideration for the substance of an argument they wish to challenge.

          You seem to feel that you went shopping legitimately in my essay, made your purchases, and then left the store free to employ, in a context of your own manufacture, those phrases and points of contention that were of use to you. And further, you seem comfortable in now standing on such selectivity even when it’s clear that your work ignored or misrepresented the core value and premise of my actual argument. The failure is not one of commission — you have not misquoted any singular phrase in separating it from its actual context — but of omission. You want your cites to exist in an argumentative framework and context that was never intended, and that, indeed, is superceded by all that came before in the essay. Are you still defending this performance? On what basis?

          The other essayist I cited as a foil to your own effort is unconvinced by some of my arguments, but tellingly, he came to the opposite conclusion about what I was arguing, and why I was arguing for such. Somehow, that fellow gathered exactly what I am saying here: That I was not predicating my support for this program based on my opposition to the drug war. Is he that much more attentive than you? Or are you prepared to say that the other gentleman got it wrong, that he has mistaken my position for something more nuanced and reasoned and doing so without supporting language from my essay? If not, are you still of the opinion that the premise of your essay is accurate? That readers of the Atlantic have, through your effort, a true and contextualized sense of why I am defending the legality and morality of the NSA data pile and its uses? If this is the case, then I don’t see the point of engaging you much beyond this encounter.

          I’m interested in serious argument. And I’m doing my best to think hard, write clearly and make a serious argument. I look for serious argument in reply. But I can’t very well give any of yours consideration if you are this incapable of some basic reciprocity. If you have attended to any of the debate on this website, you will understand that for me, I am endeavoring to hold myself and others here to rhetorical standards that encourage some deeper level of discussion. It is an interesting social experiment with the rhetorical potential of the internet, and it has been undertaken with one eye to the awful and unfocused commentary sections of most websites.

          Well, again, you have predicated an entire essay on the argumentative fallacy of equivocation. You have represented a dependent phrase in which I expressed my disdain for the tardiness and inconsistency of the opposing argument as being, instead, the very premise for my own position. And you have done this when in fact, the full premise was stated explicitly and at great length throughout the entire essay, well prior to the dependent opinion. And now, you seem to want to hold to this standard of rhetoric, leaning all too hard on your limited acts of commission, avoiding all that you systematically ignored.

          I’m sorry, brother, I can’t take that performance seriously. If this is how you do, not much good can come from it. And believe it or not, I don’t argue merely to win an argument. I’m trying to tease out all the implications of an issue, to win only where the merits allow and to be convinced by others when the merits of their argument demand it. For that to happen, I have to offer more respect to the argument itself than you have shown thus far.

          • Mr. Simon,

            I am as committed to high level discourse as anyone, and very much want your arguments to be correctly represented, though we seem to have a basic disagreement about whether it is fair to take issue with parts of an essay without quoting the whole. I say it is fair to do so, as long as you’re clear that you’re rejecting a particular part of an argument. That said, I’d be pleased if you and I actually agree on one of the points we’ve been arguing about, and I’d very much want my readers to know that.

            Would it be accurate if I appended this update to my piece at The Atlantic? –> “David Simon doesn’t, in fact, think that the public’s inadequate reaction to drug war abuses should factor into or diminish anyone’s willingness to oppose the NSA’s recently revealed surveillance programs.”

            If that is accurate, I’ll append the update immediately to the post. If it is inaccurate, I hope it helps to clarify the nature of our disagreement.

            • Christ, Mr. Friedersdorf. You didn’t need to “reject a particular part of the argument” to fully misrepresent the entire thing. By omitting it — entirely — you made that which was not the premise of my position stand for the absent argument. You say it is fair to do so? Right then. You are understood.

              I genuinely don’t care what you tell your readers. I’ve spoken to my own about what I regard as the misleading premise of your entire essay and this is sufficient for me. I have no interest in interposing between you and your keyboard going forward. But I will say that the phrase you offer doesn’t begin to cover the omission. It is narrow, desperately so, in avoidance of what your essay lacks. For you to say, David Simon actually made a series of specific legal and ethical arguments in support of the NSA phone metadata program, noting that the same level of intrusion has long been acceptable in other law enforcement endeavors to courts and public opinion both — that would address what you carefully avoided. As to what David Simon thinks the public’s inadequate reaction to both drug war abuses and legitimate intrusions should mean to anyone, you could, instead of shoving your words in my mouth, say that Simon thinks it is indicative of a societal hypocrisy so fundamental that he won’t take seriously the sudden concern over the legal use of such data in this context, or get exercised about claims of a real civil liberties affront with regard to this NSA program, when legal intrusions elsewhere are, in fact, more aggressive. But wait, that would be saying what I said, fully contextualized. And if you do that, your essay won’t stand on its own legs. It falls on its ass at the premise.

              We do indeed have a basic disagreement, and in saying what you think is fair, you’ve convinced me that it won’t be reconciled. I can’t take your purposes sincerely, and I can’t take this process seriously. You are protective of a performance that I simply can’t hold in high regard.



              • I know I keep saying this, but exchanges like this give me tremendous hope. As a person who’s interested in the what (the topic) as well as the how (the rhetoric), it doesn’t get any better than this. The amount of attention this is getting is great too – hopefully many are learning what the internet can be.

                • Ms. Katie,

                  After this encounter, and the gentleman’s unwillingness to acknowledge the sheer wrongheadedness of his rhetorical ethic, I have less hope than before. But hey, he did show up here as if nothing were particularly amiss with his performance. That’s something, I’ll admit.

                  • Frustrating for sure, but at least when people let their freak flags fly it doesn’t leave any room for misinterpretation. No doubts left whether he might have misspoken or been subject to misinterpretation.

            • “though we seem to have a basic disagreement about whether it is fair to take issue with parts of an essay without quoting the whole.”

              Holy crap, Conor. Do you realize how full of shit you are right there?

              First, it is eminently possible to take issue with parts of an essay without quoting the whole. What you can’t goddamn do is elide the parts of the argument you find inconvenient, whether you quote them or not.

              Second, and this is key, you can’t ‘reject a particular part of an argument’. It doesn’t fucking work that way. Either you address all of the premises and show that the conclusion doesn’t follow or you show that a premise was invalid to begin with and you can’t draw the conclusion. Somewhere, your college professors are weeping.

    • Well said sir – I agree. I’m still trying to figure out what the US drug war has to do with my invasion of privacy on the other side of the world. We know the US and the Brits are indiscrimately hoovering up the whole of the net (Yes, the whole of the freaking net.) at the bits and byte level from the pipelines into and out of the US. What that has to do with a junkie in Baltimore I can’t fathom.

      • If you can’t see it, you can’t see it. But our entire judicial construct is based on legal precedent. You can’t create one set of rules and then change them for a historical or political circumstance that appeals to you differently. We are four decades down this path in terms of constitutional questions and interpretation and legal standard. And the arguments that got us here, undertaken over a variety of law enforcement issues, are still in play. If that much eludes you, then, well, it eludes you.

        But a government of laws doesn’t pivot on a dime because all of a sudden, you want one legal outcome and interpretation in one circumstance, but have functioned under the opposite in all other frameworks. You can wish it so. But it’s an untenable exercise given the realities of American governance.

        Can I also say that I regret the use of the term junkie. It is a pejorative that I avoid scrupulously. Call them addicts, call them dope fiends, even. Most of those I know will accept that term as honest enough. Junkie has a dehumanizing effect, and even those in the life avoid it. It is a contemptuous phrase, and one of those monikers that increase the distance between people. Reconsider the use of the phrase and the implication of worthlessness that thet term encourages. I wrote a 600-page book on addiction; I avoided that phrase at all costs. I’m going to ask that on this site, you join me in this.


        • But our entire judicial construct is based on legal precedent. You can’t create one set of rules and then change them for a historical or political circumstance that appeals to you differently.

          The patriot act…

          • …has zero to do with the legal status of phone metadata outside of the Fourth Amendment. The same legal precedents are still applicable, and the Patriot Act is not germaine. Nor is the Patriot Act responsible for the FISA process that is overseeing this secret NSA program. That program pre-exists the war on terror and was a reform to the prior, unsupervised vacuum of executive action.

            The Patriot Act is, I believe, the salient legal underpinning for allowing cooperation between national security and intelligence agencies and domestic law enforcement, which is the reason that the NSA computers can be employed in conjunction with this program. That did indeed change. And we elected the representatives who voted for that legislation overwhelmingly. And every poll of Americans showed that this overwhelming support was reflective of the national opinion. You want to bemoan the legislation in retrospect, fine. But pretending that a popular referendum prevents any of the above is nonsense.

        • If those laws have brought Americans to the point where it is now legal (if not ethical) to hoover up the entire net – well those laws aren’t worth the paper they’re printed on regardless of the fifty freaking years it took to write them. Made by men – undone by men. They’re not written by Gods.

          • Yes, the law is an ass and give you liberty or give you death and all of that, I know.

            You might consider picking up a brick and throwing it at someone, because you’ve departed from the rooms where actual American self-governance, flawed and complicated as it is, must actually occur.

          • Just wondering…EX-Forces sounds a lot like Jesse Ventura?
            No offense. He makes sense to me sometimes too.
            Just had to get that out.
            Carry on.

        • re the word ‘Junkie’. I’ll avoid it. Just out of curiosity, do you think addiction is a mental illness? What’s your take on Szasz?

          • To the extent that addictive disorders do respond to behavior interventions at points, I think it’s suggestive of mental illness. But I also think that addiction is rooted in environmental and existential questions that go to individual meaning and sociology. Honestly, I don’t care about the semantics. The people I know who have emerged from deep addiction have done so by self-assessing their own behavior and the cost, but also by having the good fortune to be able to change their environment sufficiently to remove themselves from the culture of addiction. One without the other seems to be hard.

  • There is that word “vindictive” again. I’m beginning to think someone at the Atlantic (with a higher pay grade than the writer) doesn’t like you. I don’t read the magazine. Is this throw down literary style typical for them? Also I wonder if Friedersdorf gets paid by the word? If so, that article was easy money. Most of the words in his article are yours. I still appreciate what you are trying to do here on your website. You like the debate. You like the rigor. I am beginning to appreciate Ceglowski’s post more and more. He raised some good points and counterarguments without resorting to name calling or being intellectually smug.

    • No complaints about anyone’s word count, Ms. Goodwin. This is the internet, and if I want to deal in detail with an issue, I do so at great length. Anyone is entitled to say all that they can. We have no shortage of column inches or printer’s ink,

      Mr. Ceglowski is, apparently, a mensch. He was honestly trying to engage with the totality of an argument.

  • I’ve appreciated the debate you’ve facilitated on this site. Really top quality stuff.

    The tools that law enforcement uses may be neutral and capable of being used for both good and bad, but I think we have to go beyond that. Process matters. In some of your previous essays you’ve separated the NSA data collection programs from the FISA court process. When it comes to the issue at hand, I don’t think that those two things can be cleaved apart. The haystack of meta-data built by the NSA is no longer neutral when paired with the FISA Amendment Act and its reauthorization last year.

    In your essays you’ve argued forcefully that the secrecy surrounding the FISA courts needs to change and greater transparency is the way forward. The existence of the haystack of meta-data goes hand in hand with the enabling the worst aspects of the FISA Amendment Act. The NSA database is what gives the FISA Amendment Act teeth.

    The real issue isn’t the existence of a database of telephone and internet meta-data. The real issue is the fact that the secrecy of the current FISA system leaves no way for a citizen to know if that data is being used to violate their due process rights.

    • Agree in full. I do think it is in the FISA process that the real systemic reform must be undertaken.

  • Mr. Simon, I don’t disagree with the primary point you’re making here — but I’m not sure what “the Internet” in the last paragraph has to do with it. Isn’t The Atlantic actually a print magazine? Doesn’t Mr. Friedersdorf actually write for the print incarnation as well? Would his opinions have been less objectionable to you had they first been disseminated in a more traditional form of media?

    I felt the same way about your reactions to the dumb Bravo guy remarks on Twitter. Prior to Twitter, Bravo guy would have needed to find some sycophantic entertainment journalist to print his facile rebuttal — and that would have been tough, right? All Twitter can be blamed for is cutting out the middle man. And to critique someone’s expression for fitting in 140 characters also seems like a misfire — the content of many thoughts I hear expressed on a daily basis without the assistance of Twitter would fill up far less space.

    I’ve been a reader here since the first post but I believe this is my first time to comment — so here’s an overdue appreciation for this relatively new space to read some of what’s on your mind.

    • The piece appeared on their blog. But honestly, I’m being tongue-in-cheek. The internet is a neutral asset. The ideas contained therein might be worthy, or dumb. Just as in print. I have no complaint as to the internet. It is the playing field.

  • There’s a concept in computer science called ‘hashing’ where you (in it’s most basic form), keep something secret by means of the product of prime numbers. Multiplying two numbers is simple, taking a number and figuring out what two numbers were multiplied to produce it is really, really, hard.

    I think the same thing happens, note suspect analogy approaching) in rhetoric. Someone takes two concepts and mashes them together–multiplication. Easy to do. Any competent fourth grader could do it.

    The guy who has to come along and say, “It’s not that simple”, is doing the hard work of division. And most people aren’t going to understand why it’s not as simple as they believe it to be. You can get quite a dent in your forehead trying to explain it to them.

  • I was was wondering if you saw that Atlantic piece. I was very disappointed. I like them very much usually and even subscribe to the print magazine, but that was an embarrassing display of well, exactly what you said: twisting someone’s argument to make it what you want it to be. I fully admit I’ve done it before but I’ll be more careful in the future.

    • Anna,

      Could you quote the part of my piece where you think that I twist Mr. Simon’s arguments?

      • Simon has long argued that the NSA’s program did not fall out of the sky but rather reflects decades of legal precedent. He often sums this up by saying, “If they want you, they’ve got you.” In other words, the government has long possessed the means to tap, trace, and track people legally without the aid of PRISM. Within this context, he made an aside contrasting the media excitement over the Snowden leak with the general indifference to civil liberties in the War on Drugs. In your second article, that small component of his lengthy piece became the crux of your counter-argument. You fixated on the Mooney joke, when Simon’s main point was that he believes law enforcement tools are not inherent evils, and that the NSA program (at this time) appears to adhere completely to legal precedent.

        Regarding your first article, you sum up your critique with this little chestnut: “So basically, Simon castigates the people expressing deep worry about NSA surveillance for being alarmists; then argues that the program won’t, in fact, be safe, pending lots of checks that don’t exist and oversight that is unlikely to be implemented in the foreseeable future. Simon’s series is rife with that sort of contradiction. I’ll perhaps address more of them in a future post.”

        Actually, it’s a lot simpler than that. While you fear any government intrusion upon your privacy, Simon believes that some is necessary to prevent terrorist attacks (he even supports judicious, legal use of wiretaps in prosecuting other crimes). That’s just a fundamental difference of opinion between you two. He has maintained again and again that FISA courts are not yet transparent enough, and he suggests that civil liberties reformers should rally around that cause. That’s all there is to it, basically. Legal wiretaps: good. NSA without transparent oversight: bad.

        • Thank you, Mr. H.

          I don’t see why that was so hard. There’s plenty of room to argue with my position if you believe otherwise. No need to manufacture a position for me other than the one I’m actually willing to defend.

  • I’m not sure who you should be offended by more — Friedersdorf for clearly not even taking the time to read your entire essay much less your defense thereof, or Cannon for digging-up that ancient ID of yours!

    • The ID I gave willingly to Esquire for an essay on journalism years ago. It is in the public domain. I cannot disavow that facial hair, much as I would like to do so.

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