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This is reporting that Nick Merrill, who was under a gag order restricting his ability to talk about a subpoena he received in 2004, is no longer gagged. It lin

This is reporting that Nick Merrill, who was under a gag order restricting his ability to talk about a subpoena he received in 2004, is no longer gagged. It links to an editorial he wrote (anonymously) about that gag order, http://www.washingtonpost.com/wp-dyn/content/article/2007/03/22/AR2007032201882.html http://www.washingtonpost.com/wp-dyn/content/article/2007/03... , in which he writes: > "Based on the context of the demand -- a context that the FBI still won't let me discuss publicly -- I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled." This new article does not disclose who that subscriber was, but the article, and the earlier op-ed, seem to imply that the subscriber's identity alone is enough to suspect an abuse of power. We'll probably hear more about that in the near future, but I'd like to make a prediction. The most likely interpretation is that this was a critic of the FBI or of the US government as a whole, and that the subpoena - which seeks to unmask the subject's identity - would be a prelude to retaliation. The article goes on to describe how the FBI has materially misrepresented its use of National Security Letters to Congress, and that the practice of sending them has twice been struck down by the courts as unconstitutional. By all appearances, a significant chunk of the US law enforcement apparatus has simply gone rogue, stopped respecting Congress and the courts and is instead focused on increasing its own power.

raquo 11y ago
> By all appearances, a significant chunk of the US law enforcement apparatus has simply gone rogue, stopped respecting Congress and the courts and is instead focused on increasing its own power. I truly don't understand why nothing is done about that. Why doesn't anyone lose their job over this, let alone go to jail? I mean, I've gotten used to such indifference in Russia, but US seemed like the country that shouldn't tolerate shit like this.
- cowardlydragon 11y ago
  We are Aldous Huxley's version of totalitarianism, where we are drugged and entertained into submission.
  - raquo 11y ago
    Yeah, but I'm wondering more about the inaction of other federal powers. Congress, President, I don't really know whose job it is, but someone in this country should have the power to deal with rogue government agencies? They don't appoint themselves.
    - poof131 11y ago
      The President has all the power to curtail these abuses. Unfortunately, reducing your own power is not something that comes naturally to most people. Additionally, any reduction in the national security apparatus will be a political disaster if another terrorist attack happens, so inaction is the prudent political course. It’s a tough problem to deal with and currently it seems a majority of Americans are more concerned with security than freedom. Until that changes, our elected officials will likely just voice concern and persist with the status quo.
      - tptacek 11y ago
        The President technically has that power, but in reality the DOJ's policy is set by the Attorney General, and the historical relationships between Presidents and their A.G.s has tended to be fraught. Mostly, what the President can do in reality is fire the AG. But if Obama does that, he'll have to find and get confirmed a new AG. If you're outraged by NSLs, the new AG Obama could confirm in this climate is unlikely to be an improvement.
        idlewords 11y ago
        That's an odd view of the relationship. The President gets to set policy, and the AG can comply or resign. The responsibility rightly lies with the President, and Cabinet officers are unlikely to resign over issues unless their own views are irreconcilable with their boss's wishes.
        tptacek 11y ago
        That's the theory of the Unitary Executive, made famous by Bush's OLC head John Yoo. But there are statutes that delegate powers directly to agency heads and cabinet members, and not to the President, others that expressly limit the President's authority over agencies, and there are independent agencies that the President can appoint people to but cannot directly control --- despite residing in the Executive Branch. Also, the Constitution gives Congress the authority to vest the appointment of "public ministers, consuls, and all other officers of the United States" directly to the heads of departments, explicitly bypassing the President, who is mentioned earlier in that sentence of the text. Ultimately I think you're mostly right in one sense, and the President has so much authority over the DOJ that resignation is the only real authority the AG has --- which explains things like the Saturday Night Massacre --- but that the day-to-day authority of the AG and the leverage they have over the President by threatening to resign makes the balance of power here tricky. Again: John Ashcroft thwarted not just Bush but the real President at the time, Dick Cheney; so far as we know, he didn't threaten to resign in protest, but rather just refused to authorize STELLARWIND. And, unlike the Saturday Night Massacre, Bush's party controlled Congress, and was not hostile to what he was trying to do.
- jamoes 11y ago
  > I truly don't understand why nothing is done about that. Why doesn't anyone lose their job over this, let alone go to jail? My suspicion is that the FBI and various three-letter-agencies have dirt on most of the elected representatives. The mass surveillance apparatus is the perfect tool for collecting blackmail material on current and future leaders.
  - raquo 11y ago
    That would also explain why corruption is allowed to happen, kinda. Is there a realistic exit from that situation?
    - jsnathan 11y ago
      IF this were the case, then the solution would be a whistleblower. Or someone hacking into the system, who makes the information collected public. Of course this person would face even more risk than Snowden ever did.
      - r00fus 11y ago
        On could argue that was why Aaron Swartz died. Of course discussing this is considered "CT".
  - tptacek 11y ago
    That is certainly the most amusing and dramatic explanation of what's happening. A simpler explanation might just be that Congress broadly supports what DOJ is doing, and cares a lot less about the integrity of specific online services than they do about DOJ's role in combating terrorism, nuclear proliferation, and foreign intelligence services.
    - saosebastiao 11y ago
      The FBI's founding director had this very tactic as his modus operandi. It isn't hard to speculate that the culture of the FBI has supported political extortion for well over 80 years now.
- pyrocat 11y ago
  There's no incentive to fix it and plenty of incentive to let it remain "Someone Else's Problem" or indeed make it worse. See also: military industrial complex, corporate lobbying, the blue line, security theater, budget in-fighting
- tn13 11y ago
  I think FBI and other related agencies share their power with those who are responsible for holding them accountable. We will see more and more of these problems as Federal government tries to snatch more power from states in the name of national security, welfare or environment. This is not a problem that can be solved through evolutionary way but would require some real drastic moves by some courageous political leader. We could find one Snowden among several Fed employees I am pretty sure we will find more.
- CamperBob2 11y ago
  I can understand why LE goes rogue; it's simply in the nature of police to expand their power whenever possible. What I can't understand is why judges tolerate it.
- JupiterMoon 11y ago
  > > By all appearances, a significant chunk of the US law enforcement apparatus has simply gone rogue, stopped respecting Congress and the courts and is instead focused on increasing its own power. This is one of my specific concerns about these programs. I worry that in order to correct the current state we will have to eventually disband some of these agencies and that this will leave a gap in our countries' ability to prosecute serious crimes.
poof131 11y ago
While I agree with the sentiment that agencies are going rogue, I think the power play rests with the executive branch. NSA, FBI, Justice Department, etc. all report to one individual, the President. All agencies in government focus on increasing their own power, just like businesses focus on making money. The ‘War on Terror’ allowed the executive branch and national security related agencies to take on too much power. We the people, congress, and the courts need to curtail this power. Making permanent gag orders illegal would be a small start. And if agents were using their powers to investigate critics, heads should roll with jail time for all involved. We don’t need a rehash of Hoover’s FBI and the crimes it committed.
comex 11y ago
Note that the courts striking down a law is a rebuke to Congress, not the executive agencies exercising it. Nor have I heard anything about the FBI ignoring court decisions - the second court case was the result of an amendment to the law, and its final result on appeal was not to ban NSLs, but merely to increase the role of the courts in evaluating their validity, and, if the recipient of one wishes to challenge it, to force the government to initiate the lawsuit rather than the recipient. Relatively dry stuff. It's hard to see how any of this implies that law enforcement has "gone rogue, stopped respecting Congress and the courts", except the one instance of misleading Congress about the number of NSLs issued, a decade ago.
wmeredith 11y ago
I'm hijacking the top comment here to link directly to the ACLU donation page. You should do a one-time donation or become a member, if you care about this stuff. The ACLU is on the front lines of this war every day. https://action.aclu.org/secure/our-civil-liberties-are-under-attack-6 https://action.aclu.org/secure/our-civil-liberties-are-under... (I have no affiliation with the ACLU other than having been a member for some years now.)
ars 11y ago
> This new article does not disclose who that subscriber was Which is good. He deserves his privacy, and only he should decide if to reveal himself. (Unless he's actually charged with something in court.)
godgod 11y ago
Russ Tice. Sibel Edmonds. Thomas Drake. William Binney. Jesselyn Radack. John Kiriakou. Take your pick. No doubt these people have all felt the wrath of the federal government.

raquo 11y ago

> By all appearances, a significant chunk of the US law enforcement apparatus has simply gone rogue, stopped respecting Congress and the courts and is instead focused on increasing its own power. I truly don't understand why nothing is done about that. Why doesn't anyone lose their job over this, let alone go to jail? I mean, I've gotten used to such indifference in Russia, but US seemed like the country that shouldn't tolerate shit like this.

cowardlydragon 11y ago
We are Aldous Huxley's version of totalitarianism, where we are drugged and entertained into submission.
- raquo 11y ago
  Yeah, but I'm wondering more about the inaction of other federal powers. Congress, President, I don't really know whose job it is, but someone in this country should have the power to deal with rogue government agencies? They don't appoint themselves.
  - poof131 11y ago
    The President has all the power to curtail these abuses. Unfortunately, reducing your own power is not something that comes naturally to most people. Additionally, any reduction in the national security apparatus will be a political disaster if another terrorist attack happens, so inaction is the prudent political course. It’s a tough problem to deal with and currently it seems a majority of Americans are more concerned with security than freedom. Until that changes, our elected officials will likely just voice concern and persist with the status quo.
    - tptacek 11y ago
      The President technically has that power, but in reality the DOJ's policy is set by the Attorney General, and the historical relationships between Presidents and their A.G.s has tended to be fraught. Mostly, what the President can do in reality is fire the AG. But if Obama does that, he'll have to find and get confirmed a new AG. If you're outraged by NSLs, the new AG Obama could confirm in this climate is unlikely to be an improvement.
      - idlewords 11y ago
        That's an odd view of the relationship. The President gets to set policy, and the AG can comply or resign. The responsibility rightly lies with the President, and Cabinet officers are unlikely to resign over issues unless their own views are irreconcilable with their boss's wishes.
        tptacek 11y ago
        That's the theory of the Unitary Executive, made famous by Bush's OLC head John Yoo. But there are statutes that delegate powers directly to agency heads and cabinet members, and not to the President, others that expressly limit the President's authority over agencies, and there are independent agencies that the President can appoint people to but cannot directly control --- despite residing in the Executive Branch. Also, the Constitution gives Congress the authority to vest the appointment of "public ministers, consuls, and all other officers of the United States" directly to the heads of departments, explicitly bypassing the President, who is mentioned earlier in that sentence of the text. Ultimately I think you're mostly right in one sense, and the President has so much authority over the DOJ that resignation is the only real authority the AG has --- which explains things like the Saturday Night Massacre --- but that the day-to-day authority of the AG and the leverage they have over the President by threatening to resign makes the balance of power here tricky. Again: John Ashcroft thwarted not just Bush but the real President at the time, Dick Cheney; so far as we know, he didn't threaten to resign in protest, but rather just refused to authorize STELLARWIND. And, unlike the Saturday Night Massacre, Bush's party controlled Congress, and was not hostile to what he was trying to do.
jamoes 11y ago
> I truly don't understand why nothing is done about that. Why doesn't anyone lose their job over this, let alone go to jail? My suspicion is that the FBI and various three-letter-agencies have dirt on most of the elected representatives. The mass surveillance apparatus is the perfect tool for collecting blackmail material on current and future leaders.
- raquo 11y ago
  That would also explain why corruption is allowed to happen, kinda. Is there a realistic exit from that situation?
  - jsnathan 11y ago
    IF this were the case, then the solution would be a whistleblower. Or someone hacking into the system, who makes the information collected public. Of course this person would face even more risk than Snowden ever did.
    - r00fus 11y ago
      On could argue that was why Aaron Swartz died. Of course discussing this is considered "CT".
- tptacek 11y ago
  That is certainly the most amusing and dramatic explanation of what's happening. A simpler explanation might just be that Congress broadly supports what DOJ is doing, and cares a lot less about the integrity of specific online services than they do about DOJ's role in combating terrorism, nuclear proliferation, and foreign intelligence services.
  - saosebastiao 11y ago
    The FBI's founding director had this very tactic as his modus operandi. It isn't hard to speculate that the culture of the FBI has supported political extortion for well over 80 years now.
pyrocat 11y ago
There's no incentive to fix it and plenty of incentive to let it remain "Someone Else's Problem" or indeed make it worse. See also: military industrial complex, corporate lobbying, the blue line, security theater, budget in-fighting
tn13 11y ago
I think FBI and other related agencies share their power with those who are responsible for holding them accountable. We will see more and more of these problems as Federal government tries to snatch more power from states in the name of national security, welfare or environment. This is not a problem that can be solved through evolutionary way but would require some real drastic moves by some courageous political leader. We could find one Snowden among several Fed employees I am pretty sure we will find more.
CamperBob2 11y ago
I can understand why LE goes rogue; it's simply in the nature of police to expand their power whenever possible. What I can't understand is why judges tolerate it.
JupiterMoon 11y ago
> > By all appearances, a significant chunk of the US law enforcement apparatus has simply gone rogue, stopped respecting Congress and the courts and is instead focused on increasing its own power. This is one of my specific concerns about these programs. I worry that in order to correct the current state we will have to eventually disband some of these agencies and that this will leave a gap in our countries' ability to prosecute serious crimes.

poof131 11y ago

While I agree with the sentiment that agencies are going rogue, I think the power play rests with the executive branch. NSA, FBI, Justice Department, etc. all report to one individual, the President. All agencies in government focus on increasing their own power, just like businesses focus on making money. The ‘War on Terror’ allowed the executive branch and national security related agencies to take on too much power. We the people, congress, and the courts need to curtail this power. Making permanent gag orders illegal would be a small start. And if agents were using their powers to investigate critics, heads should roll with jail time for all involved. We don’t need a rehash of Hoover’s FBI and the crimes it committed.

comex 11y ago

Note that the courts striking down a law is a rebuke to Congress, not the executive agencies exercising it. Nor have I heard anything about the FBI ignoring court decisions - the second court case was the result of an amendment to the law, and its final result on appeal was not to ban NSLs, but merely to increase the role of the courts in evaluating their validity, and, if the recipient of one wishes to challenge it, to force the government to initiate the lawsuit rather than the recipient. Relatively dry stuff. It's hard to see how any of this implies that law enforcement has "gone rogue, stopped respecting Congress and the courts", except the one instance of misleading Congress about the number of NSLs issued, a decade ago.

wmeredith 11y ago

I'm hijacking the top comment here to link directly to the ACLU donation page. You should do a one-time donation or become a member, if you care about this stuff. The ACLU is on the front lines of this war every day. https://action.aclu.org/secure/our-civil-liberties-are-under-attack-6 https://action.aclu.org/secure/our-civil-liberties-are-under... (I have no affiliation with the ACLU other than having been a member for some years now.)

ars 11y ago

> This new article does not disclose who that subscriber was Which is good. He deserves his privacy, and only he should decide if to reveal himself. (Unless he's actually charged with something in court.)

godgod 11y ago

Russ Tice. Sibel Edmonds. Thomas Drake. William Binney. Jesselyn Radack. John Kiriakou. Take your pick. No doubt these people have all felt the wrath of the federal government.