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George W. Bush Made Retroactive N.S.A. ‘Fix’ After Hospital Room Showdown

110 points by uptown 11y ago

zaroth 11y ago
Somehow I don't remember reading about the "hospital room showdown" in the past. Incredibly fascinating to read about the legal gymnastics performed by G.W. and Cheney's lawyer, and exactly when and where the words "collect" and "acquire" got their peculiar meanings. Impressive how much Ashcroft and Yoo were channeling Nixon a la "When the President does it, it is not illegal." The Executive branch "displacing" Federal law is not the separation of powers I remember learning as a kid. Is there any chance that theory could ever actually see scrutiny at the Supreme Court?! Nice to know there was at least someone at Justice finally ready to walk out based on NSA bulk collecting email and phone records. But how exactly was the program "curbed" in order to avert the threat of "mass walkouts"? Is it not safe to assume that bulk meta-data collection of email, phone, payments, license plates, facial recognition, phone triangulation, etc. persist and in fact are only mounting in coverage, accuracy, and post-processing? I suppose the last territory to cover is beam-forming microphones with high accuracy far-field voice recognition in crowded environments. The technology certainly exists in the lab at this point, I would assume only a few years ago from mass-deployment and collection. Of course, relax, conversations are only "acquired" when they searched, so our leaders can happily testify that American's every outside conversation isn't actually being "collected" in full searchable text form in Utah.
- Natsu 11y ago
  I remember it very clearly because it was perhaps the only time that most techies were in support of Ashcroft's actions.
- pdkl95 11y ago
  Frontline covered the "hospital room showdown" in their documentary they published last year, "United States Of Secrets"[1]. Their web video player has a bookmark called "Concerns at the Justice Department" for the part about the "showdown", though the entire video (and part 2!) is worth watching. [1] http://www.pbs.org/wgbh/pages/frontline/united-states-of-secrets/#united-states-of-secrets-%28part-one%29 http://www.pbs.org/wgbh/pages/frontline/united-states-of-sec...
seibelj 11y ago
Does anyone honestly believe that the government doesn't collect every single email, phone call, message, credit card transaction, etc. or have the capability to query a database to get it if needed? You need to accept that the war is already lost. When you are doing something that needs to be protected, use end to end crypto. And buy things in cash
- zaroth 11y ago
  Still waiting for someone to admit Stellarwind didn't just collect US meta-data. Yeah, like Google forgetting to drop the packet after the BSSID, right? Except NSA is data-mining every last drop of it. Why fuck the Constitution just a little, if you've got the packet, might as well go all the way.
  - jkestner 11y ago
    Well, their definition of "collect" is only when agents actually search everything they've vacuumed up. https://www.eff.org/nsa-spying/wordgames#collect https://www.eff.org/nsa-spying/wordgames#collect
- CyberDildonics 11y ago
  I'm amazed that when I mention asymmetric encryption by default on the IP level people seem to flip out. Why we are sending all our data in the clear and letting anyone siphon it off so easily is beyond me, but people just don't seem to care.
  - andreyf 11y ago
    Why do people flip out? Could it be that there are hard sub-problems to implementing it that might not be worth the cost or increased risk? A lot of connections are encrypted with https now, why is that not enough? How do you imagine it being implemented? Would it replace the need for https?
    - CyberDildonics 11y ago
deleted 11y ago
[deleted]
jdp23 11y ago
Excellent reporting. We already knew that Jack Goldsmith, Jim Comey, and others saw John Yoo's legal analysis as flawed, which lead to the hospital room showdown -- see [1] for Comey's dramatic Senate testimony in 2007. Now it's revealed that the NSA was going beyond what was authorized, and collecting data on purely domestic calls. Bush responded by saying this collection was authorized, and in fact had been all along. Reading between the lines, it may well have been this that led to the threat of a mass resignation that caused Bush to back down. [Of course after a brief period of legal head-scratching they found theories to approve most if not all of the questionable activities. So while on the one hand the hospital confrontation was people dramatically standing up for the rule of law, on the other hand those same people are generally in favor of mass surveillance, just done in a lawful way. You can especially see this with Jim Comey, now running the FBI and spreading fear about how we need encryption back doors to keep intelligence agencies from "going dark".] BTW Jack Goldsmith blogs about national security law at Lawfare [2]. I disagree with him on several core points but his analysis is very crisp and always worth reading. [1] http://www.washingtonpost.com/wp-dyn/content/article/2007/05/15/AR2007051500864.html http://www.washingtonpost.com/wp-dyn/content/article/2007/05... [2] https://lawfareblog.com/ https://lawfareblog.com/
- jdp23 11y ago
  Looking back at this Julian Sanchez article from 2013 [1] (after a Snowden leak related to the hospital conversation), he had already zeroed in on the issue. "The interception of phone and e-mail content was clearly electronic surveillance, but it was (in theory) limited to targets within the scope of the AUMF (which allowed the president to “determine” who had “aided” the 9/11 perpetrators). The bulk collection of phone records was not limited, but it also wasn’t “electronic surveillance” as defined by FISA. The bulk collection of Internet metadata, however, was both plainly “electronic surveillance” and also too broad to shoehorn into the language of the AUMF." So this latest story is just official confirmation. http://arstechnica.com/tech-policy/2013/07/what-the-ashcroft-hospital-showdown-on-nsa-spying-was-all-about/ http://arstechnica.com/tech-policy/2013/07/what-the-ashcroft...
  - zaroth 11y ago
mixmastamyk 11y ago
For the chilling tale of this and all the background, watch "the U.S. Of Secrets," a Frontline production on the PBS site and also currently on Netflix. So good you'll even feel a bit sorry for the Man...
drivingmenuts 11y ago
Sadly, there is no court high enough to haul the sons-a-bitches up in front of to face the justice they so richly deserve.

110 points by uptown 11y ago

Somehow I don't remember reading about the "hospital room showdown" in the past. Incredibly fascinating to read about the legal gymnastics performed by G.W. and Cheney's lawyer, and exactly when and where the words "collect" and "acquire" got their peculiar meanings. Impressive how much Ashcroft and Yoo were channeling Nixon a la "When the President does it, it is not illegal." The Executive branch "displacing" Federal law is not the separation of powers I remember learning as a kid. Is there any chance that theory could ever actually see scrutiny at the Supreme Court?! Nice to know there was at least someone at Justice finally ready to walk out based on NSA bulk collecting email and phone records. But how exactly was the program "curbed" in order to avert the threat of "mass walkouts"? Is it not safe to assume that bulk meta-data collection of email, phone, payments, license plates, facial recognition, phone triangulation, etc. persist and in fact are only mounting in coverage, accuracy, and post-processing? I suppose the last territory to cover is beam-forming microphones with high accuracy far-field voice recognition in crowded environments. The technology certainly exists in the lab at this point, I would assume only a few years ago from mass-deployment and collection. Of course, relax, conversations are only "acquired" when they searched, so our leaders can happily testify that American's every outside conversation isn't actually being "collected" in full searchable text form in Utah.

Natsu 11y ago
I remember it very clearly because it was perhaps the only time that most techies were in support of Ashcroft's actions.
pdkl95 11y ago
Frontline covered the "hospital room showdown" in their documentary they published last year, "United States Of Secrets"[1]. Their web video player has a bookmark called "Concerns at the Justice Department" for the part about the "showdown", though the entire video (and part 2!) is worth watching. [1] http://www.pbs.org/wgbh/pages/frontline/united-states-of-secrets/#united-states-of-secrets-%28part-one%29 http://www.pbs.org/wgbh/pages/frontline/united-states-of-sec...

seibelj 11y ago

Does anyone honestly believe that the government doesn't collect every single email, phone call, message, credit card transaction, etc. or have the capability to query a database to get it if needed? You need to accept that the war is already lost. When you are doing something that needs to be protected, use end to end crypto. And buy things in cash

zaroth 11y ago
Still waiting for someone to admit Stellarwind didn't just collect US meta-data. Yeah, like Google forgetting to drop the packet after the BSSID, right? Except NSA is data-mining every last drop of it. Why fuck the Constitution just a little, if you've got the packet, might as well go all the way.
- jkestner 11y ago
  Well, their definition of "collect" is only when agents actually search everything they've vacuumed up. https://www.eff.org/nsa-spying/wordgames#collect https://www.eff.org/nsa-spying/wordgames#collect
CyberDildonics 11y ago
I'm amazed that when I mention asymmetric encryption by default on the IP level people seem to flip out. Why we are sending all our data in the clear and letting anyone siphon it off so easily is beyond me, but people just don't seem to care.
- andreyf 11y ago
  Why do people flip out? Could it be that there are hard sub-problems to implementing it that might not be worth the cost or increased risk? A lot of connections are encrypted with https now, why is that not enough? How do you imagine it being implemented? Would it replace the need for https?
  - CyberDildonics 11y ago

deleted 11y ago

[deleted]

jdp23 11y ago

Excellent reporting. We already knew that Jack Goldsmith, Jim Comey, and others saw John Yoo's legal analysis as flawed, which lead to the hospital room showdown -- see [1] for Comey's dramatic Senate testimony in 2007. Now it's revealed that the NSA was going beyond what was authorized, and collecting data on purely domestic calls. Bush responded by saying this collection was authorized, and in fact had been all along. Reading between the lines, it may well have been this that led to the threat of a mass resignation that caused Bush to back down. [Of course after a brief period of legal head-scratching they found theories to approve most if not all of the questionable activities. So while on the one hand the hospital confrontation was people dramatically standing up for the rule of law, on the other hand those same people are generally in favor of mass surveillance, just done in a lawful way. You can especially see this with Jim Comey, now running the FBI and spreading fear about how we need encryption back doors to keep intelligence agencies from "going dark".] BTW Jack Goldsmith blogs about national security law at Lawfare [2]. I disagree with him on several core points but his analysis is very crisp and always worth reading. [1] http://www.washingtonpost.com/wp-dyn/content/article/2007/05/15/AR2007051500864.html http://www.washingtonpost.com/wp-dyn/content/article/2007/05... [2] https://lawfareblog.com/ https://lawfareblog.com/

jdp23 11y ago
Looking back at this Julian Sanchez article from 2013 [1] (after a Snowden leak related to the hospital conversation), he had already zeroed in on the issue. "The interception of phone and e-mail content was clearly electronic surveillance, but it was (in theory) limited to targets within the scope of the AUMF (which allowed the president to “determine” who had “aided” the 9/11 perpetrators). The bulk collection of phone records was not limited, but it also wasn’t “electronic surveillance” as defined by FISA. The bulk collection of Internet metadata, however, was both plainly “electronic surveillance” and also too broad to shoehorn into the language of the AUMF." So this latest story is just official confirmation. http://arstechnica.com/tech-policy/2013/07/what-the-ashcroft-hospital-showdown-on-nsa-spying-was-all-about/ http://arstechnica.com/tech-policy/2013/07/what-the-ashcroft...
- zaroth 11y ago

mixmastamyk 11y ago

For the chilling tale of this and all the background, watch "the U.S. Of Secrets," a Frontline production on the PBS site and also currently on Netflix. So good you'll even feel a bit sorry for the Man...

drivingmenuts 11y ago

Sadly, there is no court high enough to haul the sons-a-bitches up in front of to face the justice they so richly deserve.