Fixing the Courts

„Das sind zwei völlig verschiedene Dinge, und solche Vergleiche führen nur zu einer Verharmlosung dessen, was die Staatssicherheit mit Menschen in der DDR angerichtet hat.“

In reference to comparing the NSA to the Stasi, Angie says, “They are two completely different things, and such comparisons only lead to downplaying what the Stasi did to people in the GDR.”

This is brilliant. With that statement, the chancellor is downplaying what the NSA and her own BND are doing now. The Stasi analogy, on the other hand, leads to precisely the opposite, which is taking what the NSA and BND are doing seriously. How did Angie get so adept at doublespeak?

Well, she does have her own personal brushes with both the NSA and the Stasi. So I suppose one could say she is uniquely qualified.

What’s missing from the isolated spy vs. spy comparison is an analysis incorporating more than just abbreviated names of organizations and the scope of their wiretapping techniques. It’s the extent to which they are dubbed lawful by the governments that make use of them, the populist enthusiasm with which they go after those who speak out against them, and the culture they nurture in ratting out the suspect.

Again, it’s not the what, but the result of the why. It’s the culture of criminalization that deserves comparisons between the GDR and the US. For my taste, the United States Government is more like a combination of the worst aspects of both east and west Germany. All of their respective spy orgs are easily comparable, especially when you consider the diligence of the neanderthals who man the machines, their desire to make selective peers’ lives miserable rivaled by their eagerness for recognition from above.

Put another way, it is misleading to assume that everyday Ottos in the former German Democratic Republic weren’t bitterly divided in their opinions about whether the dissidents among them were heroes or traitors. 

But one glaring difference between the Stasi and the NSA is that nobody is still trying to justify what the Stasi did.

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The Guardian reports on the the first public workshop of the Privacy and Civil Liberties Oversight Board (PCLOB). This is a body of presidential appointees tasked with leading a “national conversation” about the operations of the National Security Agency.

The gist of the Guardian article is that a former FISA court judge, who’d already resigned in 2005, is expressing misgivings about the expansion of the courts’ responsibilities in 2008.

(Keep in mind, that when people talk about the “mess inherited” by the current president, this should be one of the things they mean: an already existing secret court with newly expanded authority. The previous administration gave this gift to the incoming administration with compliments. The Congress chipped in, of course; the prez just signed the card.)

The judge’s main contention seems to involve the ex parte nature of the NSA > FISA process:

“This process needs an adversary. If it’s not the ACLU or Amnesty, perhaps the PCLOB can be that adversary.”

Members of the oversight board, which has previously been criticised by Congress as an ineffective watchdog, shook their heads and rolled their eyes when this suggestion was made.

Assuming that is an accurate interpretation of what the board did from the neck up, what do you suppose they were reacting to specifically? Was it the suggestion that two executive branch appointed bodies argue before the court appointed by another executive appointee?

I doubt it.

Maybe it was the absurd idea that the ACLU have members sworn to top-secrecy in order to lend the idea of civil liberties to the actual debate. Or, just what is a lawyer for Amnesty International supposed to do when he or she sees that they don’t have any influence other than say – as any well-behaved lawyer should – “I accept the judges’ decision.”?

It’d be either that or head to Venezuela – at least until there’s a supra-secret appeals court added to the mix.

A previous Bush Administration lawyer questioned the feasibility of the former judge’s suggestion, irreflectively pointing out the farce of classified courts, which made its way into the AP version of the story, via the Army Times:

“In this context, you’re talking about access to the most sensitive national security information,” Bradbury said. Any adversary, he added, would “have to be an officer of the U.S. government and fully participate in the process.”

Do I really need to tell you what “fully participate” means? It means that the debate the president welcomes is a debate about the theory of how many cards it’s best to stack the deck with. In the end, the current administration might be able to say that they added oversight or balance to the process, but it’d remain, as now, a balance of known and unknown unknowns.

The debate taking place is about as meaningful as the debate over the existence of God. It remains a matter of faith except, unlike the theoretical God, this one does, in fact, rain Hellfire from the sky.

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