Orwell Would Be Proud: NSA Defender Explains How Even Though NSA Spies On Americans, It's OK To Say They Don't
from the try-that-again? dept
Benjamin Wittes of the Brooking Institution has become the go-to non-government NSA apologist. One of his most recent articles is a true work of rhetorical artistry, in which he tries to explain why saying "the NSA doesn't spy on Americans" is acceptable shorthand for the fact that the NSA spies on pretty much every American. It's a master class in political doubletalk. First, it's the law's fault. The law, you see, is too complicated for mere mortals not working for the NSA to understand, so that makes it okay to lie:The law is so dense and so complicated that it cannot be accurately summarized at a level a citizen can reasonably process.Got that? Because there are some limitations on all the spying they do on Americans, and it's too complicated to understand those limitations, so it's okay to lie and say they don't spy on Americans. Of course, in the very next paragraph, Wittes tries to effectively brush away the massive amount of surveillance done on Americans.
Any effort to summarize the relevant law necessarily ignores themes sufficiently important to its architecture that the reductionism will partake of serious inaccuracy. The person who told my friend that NSA does not spy on Americans was not lying. He or she was highlighting a crucially-important limitation on NSA’s authority vis a vis US persons. The law and the relevant regulations all contain significant territorial restrictions and significant protections for US persons overseas as well—all designed to separate the foreign intelligence mission of NSA from both domestic intelligence and domestic law enforcement. It’s a sincere and pervasive effort. “We don’t spy on Americans” is a common shorthand for a wealth of law and practice that really and meaningfully keeps the agency out of the business of being a covert domestic intelligence agency.
NSA, after all, does spy on individual Americans with an order from the FISC. It does, moreover, capture all domestic telephony metadata. And most importantly, it does routinely capture communications between Americans and the targets of its surveillance and incidentally capture other material its systems scoop up overseas—subject to rules that limit the retention and processing of US person information. In other words, to say that NSA does not spy on Americans emphatically does not mean, as a reasonable student or citizen might expect it to mean, that the agency does not regularly acquire and process the communications of Americans.Of course, as Jameel Jaffer from the ACLU points out, this is all nonsense because it's a simple fact that the NSA does do surveillance on Americans, and to claim otherwise is not acceptable shorthand. It's a lie. And while Wittes then tries to obfuscate things even more by trying and purposely failing to come up with a concise way of summarizing what the NSA does, Jaffer helps out with a few workable suggestions:
This is nonsense. Perhaps Ben’s right that it’s difficult to come up with a single sentence, or even a single paragraph, that clearly and comprehensively describes the nature and extent of the NSA’s surveillance of Americans. (Can you describe any federal agency’s functions in a single, comprehensive paragraph?) But it’s not difficult to come up with a sentence more accurate than “The NSA doesn’t spy on Americans.” Try this one: “The NSA spies on Americans.” Or this one: “The NSA collects a huge amount of information about Americans’ communications and in many contexts it collects the communications themselves.” Or this one: “The NSA is sometimes described as a foreign-intelligence agency but this label should not obscure the fact that a large part of the agency’s energy is dedicated to collecting and analyzing information about Americans.”Jaffer further points out that Wittes's suggestion that those who claim the NSA doesn't spy on Americans are really trying to tell the truth through shorthand, is actually misleading. As Jaffer points out:
Any official who says the NSA isn’t spying on Americans is seeking to mislead.And anyone defending that statement is trying to support that fundamental attempt to mislead.
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Filed Under: americans, benjamin wittes, jameel jaffers, nsa, surveillance
Reader Comments
The First Word
“-Thomas Jefferson
"The more corrupt the state, the more numerous the laws."
-Tacitus
"The law is so dense and so complicated that it cannot be accurately summarized at a level a citizen can reasonably process."
-Benjamin Wittes
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Really. So why isn't the law written in less pompous language so the common folk won't face a complex pandemonium of words? If the common folk can't understand the law because lawmakers and lawyers made it freaking complexly written so they can pretend they are something better than the average citizen then how can you reasonably expect such common folk to follow it and on top of it say that "lack of knowledge on the law does not exempt one from following it"????
BRING THE LAWS BACK TO A LEVEL WHERE IT WILL BE NATURAL BEHAVIOR TO FOLLOW THEM. People don't kill not only because there's a law but also because we generally accept that killing is bad. We also generally accept that a Government should not be able to abuse its position of power over the regular citizen to spy him/her or do whatever it pleases without the check of a judicial warrant. The list goes on and on. If the law is complex then it is wrong. Plain simple.
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One change to the constitution...
No twelve thousand page laws would be voted in...
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At this stage of the game Language has little to do with the density and complication.
Its the damn layers that make "law" which are the problem.
The Constitutions are simple enough.
Then you have the Statutes written by CON-gress and signed by the executive. Now some of these are no fun to read but they tend to be understandable.
From here you have what the regulatory bodies have opted to claim the law is and what the Judges have decided what law is. Then you have a layer of the people with the guns and the keys to the jailhouse.
So for any "law" you have the local yahoo with the badge or the authorization to act as a enforcer of some code/rule/regulation. If the "law" in question is a criminal matter - you have the DA's who've set themselves up as the gatekeeper and try to block access to Grand Juries. Then that "law" is subject to what a Judge has said in the past.
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It's all in my second US DOJ Civil Rights complaint...that Holder and James Comey known about...but will not investigate or even conduct a five minute interview?
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Like: Don't harm, and : don't steal.
Also, after those, you need zero laws. ZERO. NONE. No harm, no theft : you're a secure little hairless money. Now go cooperate with your kind to build things.
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"The law is so dense..."
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The NSA doesn't spy on citizens. Boom, simple.
Except that they have been, and since the Government "can't" break the law there must be some way that somehow that was "allowed".
I'll tell you how to rectify the conflict. The Government didn't break the law, but people did. Throw them in jail.
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My new pet peeve
I see this a lot from NSA defenders, even from many of the ones that comment here. This has become my new pet peeve because the statement (just like the "it's all legal" defense) completely misses the point, is irrelevant, and is an attempt to distract from the essential objection.
In short -- it doesn't matter whether or not the law recognizes these activities as spying. When I say they're spying, I'm talking about the cold, hard reality, not some arcane interpretation of law.
If you're keeping tabs on me, if you're collecting information about me without my consent (whether you ever look at it or not), then you're spying on me. Period.
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Re: My new pet peeve
> recognizes these activities as spying.
In short -- it doesn't matter whether or not the law
recognizes systematic gassing and execution of certain people as murder or genocide.
Seriously. I am not Gowdin'ing this thread. I'm not accusing anyone of being a Nazi. Just using the horrors as an example along a gradient of distortions of language.
But this comparison works well for the quote in the article.
Well, that quote works equally well here, doesn't it? So just say that murdering six million people isn't murder or killing because the nuances of the rationalization are too complicated.
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Re: Re: My new pet peeve
No matter what.....the written laws don't matter if you don't have actual and explicit notice of "who, what, when, why, and how" to satisfy Fed Judges demanding that a litigant prove standing (party in interest, actual harm analysis).
How can anyone challenge NCTC and FBI-CIA assassinations of my known associates....when it's all "state secrets" used to protect "sources and methods"????
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Re: My new pet peeve
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Perhaps what is needed is a requirement that the laws must be written in a form the average citizen can understand.
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The current administration would just love that...
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"All laws passed by the federal government, then."
:)
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However, as I learned the hard way with drafting contracts, attempting to plug all the ways that words can be twisted is fruitless -- the more complex and comprehensive the language, the easier it is to find loopholes.
The only actual solution -- and it's a really difficult one -- is to find a way to get actual integrity in government.
For my personal contract lessons, I learned that the length I want a contract to be is inversely proportional to how much I trust the other party, and if that contract exceeds a certain size, I'm much better off just not doing the deal at all.
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It is exactly what i meant. (i dunno why this particular browser keeps purging my cookie :-/) And you are absolutely right. The only real solution is for people to deal honestly with each other.
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The War Commissions Act legalized "Entrapment"?
What does that mean?
Entrapment was always used by overzealous cops and prosecutors...so, uh...hmmmm...why legalize it?
With entrapment...Brady Ruling still applies...but, ahem...whose gonna prosecute the prosecutors at the county, state, and fed levels when they join conspiracies to entrap (what does that mean?) while also refusing to admit "just exactly how did they entrap someone"?
"Entrapment" was legalized but not defined so that a "good faith defense" existed so that prosecutors did not have to investigate or file charges for outrageous civil rights violations in which "CIA Non Consensual Experimentation" could focus on "mind control" and "subliminal programming" as part of Operation Slammer.
Go ask FBI HQ what they know about being briefed on Operation Slammer by whistleblower Julianne McKinney?
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Good call!
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Then we can go on & make sure the Law can be understood at least by the Average Citizen.
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overtime, the new "bosses" (not leadership) decided that it would better serve to employ a dual-vernacular linguistics pattern to obfuscate the derived meaning of the intended law. Ergo and effortlessly, the law could be utilized for deterring the nefarious and revolting actions of the people.
and, i refer to them as bosses, not leadership because a leader wouldn't lead their people into legal boobie-traps on purpose.
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Not so much. They very much used terms of art and deliberately vague terms. "Due process" was a term of art in English law. "Cruel and unusual punishment" is a deliberately vague term. Examples can be multiplied.
The Founders were by and large the American equivalent of aristocrats. They weren't populists who just wanted to give the little people a chance.
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I think they used vague terms not to obfuscate but to be broad. For this example, they didn't want to specifically describe what is cruel and unusual for fear that someone in the future would come up with some terrible thing to do to another person that doesn't meet the definition. And they were certainly right.
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Take some time - read your State's Constitution. Then pick a chapter or 2 from the State Statutes. (Criminal Procedure so you have an inkling of what is supposed to happen and doesn't so you have a shot and getting charges dropped if you get nailed for something)
Most States have a guide to drafting Statues - and they have a 8th grade reading level target.
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The trouble with that is the people who will go looking for loopholes.
In order to avoid leaving loopholes to be exploited and abused, or at least to be very clear about where those loopholes are and are not, it is necessary to word the law very precisely - well beyond the limits of the precision used in ordinary day-to-day discourse.
Phrasing things precisely very quickly comes to involve phrasing them in ways which are complex, abstruse, and otherwise hard to understand - and there we have the roots of what is called "legalese".
(Try it sometime; try to phrase something so that there is no possible way that anyone could misinterpret it, or take it - or part of it - out of context to mean something else. It's far harder than you might think, beyond a few relatively simple cases, and the resulting phraseology bears a striking resemblance to legalese.)
And then people start intentionally extending legalese to obfuscate things further for their own purposes, which is indeed abusive and should be avoided, and things snowball from there. Everything before that point, however, is not only not an inherently bad thing, but is in fact necessary to avoid other bad things.
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Consise statements...
"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."
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Re: Consise statements...
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Re: Consise statements...
but seriously, their use of 215 to spy on us citizens is, at the very least, downright unamerican (and i believe it is illegal). nsa and their ilk should be ashamed of themselves, but money makes people overlook lots of things.
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Re: Re: Consise statements...
Ok I'll make it even more concise for you.
Stop violating the 4th amendment you, dipshits!
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There should be a name for this defense, like a new category of logical fallacies.
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Re: The unobtainium defense....
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Lawfare
I used to read Lawfare regularly and couldn't believe some of the crap I was reading: poorly articulated explanations of the law, misrepresentations, failures to account for actual and accepted evidence that contradicted Lawfare claims, etc. And much of the content is written by temporary law school interns, who have little experience in any aspect of the areas on which they were writing as supposed authorities, often with glaring errors.
Maybe they think their readers are neither intelligent nor lawyers who can see through the obfuscation. I don't know. But I finally just unsubscribed from the RSS feed and deleted the bookmark as it was a complete waste of time.
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Of course, that's also legit, in a way. Far be it from me to tell people what they can and can't write on their own website. But it's also legit for me to call shenanigans and stop reading their website.
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Talk about a short memory...
'The person who told my friend that NSA does not spy on Americans was not lying.'
Would seem to be rather directly contradicted by this...
'NSA, after all, does spy on individual Americans with an order from the FISC. It does, moreover, capture all domestic telephony metadata. And most importantly, it does routinely capture communications between Americans and the targets of its surveillance and incidentally capture other material its systems scoop up overseas—subject to rules that limit the retention and processing of US person information.'
So, 'The NSA absolutely does not spy on americans and their communications... except for when they do'. With that kind of argument thrown out to 'defend' the NSA, it's no wonder no one believes anything they say, they can't even keep their lies straight in a single interview.
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Re: Talk about a short memory...
More like "The NSA does not spy on Americans even though they do": "to say that NSA does not spy on Americans emphatically does not mean... that the agency does not regularly acquire and process the communications of Americans."
Is it possible for anyone to actually believe that "spying" is emphatically not "acquiring and processing information"? He's just bullshitting, right? Does he ever say what activities would qualify as spying on Americans? Does it have to involve actually looking into our windows?
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Re: Re: Talk about a short memory...
Anyone criticizing the Gov, is also a terrorist.
Anyone advocating civil rights...is...you guessed it...a terrorist.
Since terrorists "aiding and abetting Al Qaeda" on a global battlefield without limitations...are not US citizens any more (citizenship taken away secretly and covertly)...therefore...THE NSA DOES NOT MONITOR OR SURVEIL US CITIZENS.
You have to follow the press releases...and put the puzzle together because the logic is so strained that NSA apologists are afraid to "give up the scam" to prevent notice required to challenge the policy and practices in Fed courts.
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Re: Re: Re: Talk about a short memory...
Got a reference for that?
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Re: Re: Re: Re: Talk about a short memory...
Or would you feel like a free american if you were told you were on a no fly list?
Because they are suspicious of you.
No proof of fuck all, just a feeling they have about the way you turned your head and averted your eyes, while he shoved his cock, I mean hand, up your ass. No US citizen rights being violated, just their anus.
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Re: Re: Re: Re: Re: Talk about a short memory...
Or would you feel like a free american if you were told you were on a no fly list?
Didn't notice before, but in case you're still watching, the claim was " anyone deemed a terrorist is no longer considered a US citizen (citizenship is stripped unilaterally and extra judicially)". The no fly list doesn't match that claim.
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Re: Re: Re: Re: Talk about a short memory...
Secret DOJ memos hiding strained interpretations of "void for vagueness" enabling laws.
Everything is a secret.....you have to piece together the policy from statements made by police state enablers....and guess correctly what the secret policy and practices are with no access to any definitive statement or challenge of practices that are hidden after arrest and charges are litigated.
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Re: Re: Re: Re: Re: Talk about a short memory...
Perhaps the statement of the policy, if it exists, is secret. But it would be impossible to secretly revoke someone's citizenship, and if this is happening every time anyone is designated a terrorist I think someone would have figured it out and published something about it.
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"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."
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Who is HLS?
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When it comes to the government suddenly everything that a citizen is held responsible for is thrown out the window as not being applicable. The government can and does use malware to infect your personal computer and it is ok, they are only spying. You do it and face years in prison over it.
There is a reason that the American people hold both congress and the government in such low esteem. Both have proven not to be working for the interests of the people but more times than not working against them. Yet they need these same people to vote them into office.
I see no good ending to all this as it doesn't look like anyone in the government is listening to the people with any intention of making right the wrongs with very few exceptions. With the rich sucking in all the money this doesn't have much longer in time frame before all hell breaks loose. All it's going to take is a large portion of the population no longer able to afford food and utilities. We are not far off from that now.
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We need to reform the system, but the people we have elected are not up to the job.
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Some of the funniest encounters I've had of that nature involve complete denial that their side is even capable of doing wrong. The best so far came from someone who trotted out a truckload of party talking points, then told me to think for myself!
So the real problem is not that our representatives aren't fit for purpose, but that we keep voting them in for fear that the other team might win. "Yay team!" is not a good enough reason to ever vote for anyone.
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It's time to play "Spot The Loony"
In theory, there's no difference between theory and practice; however, in practice it turns out there is.
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As long as you don't know we're lying...
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Natural selection will apply even in wild capitalism.
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We're not Spying is like saying We're not Torturing
We'll call it Enhanced Interrogation Techniques.
Or Skinny Puppy private listening sessions.
And the facility that does this is not a secret prison camp outside the US, it is called The Ministry Of Love.
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In other words
In other words, he is saying that all citizens are stupid.
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Re: In other words
If any law is so dense and complicated that a citizen cannot accurately summarize it (within reason), then that law needs to be abolished and rewritten until it can be.
It is not acceptable to punish people for things they cannot possibly understand.
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-Thomas Jefferson
"The more corrupt the state, the more numerous the laws."
-Tacitus
"The law is so dense and so complicated that it cannot be accurately summarized at a level a citizen can reasonably process."
-Benjamin Wittes
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Well seing as EVERYONE happens to be a "citizen", then that means NOBODY can "reasonably process", which basically means, its broken
Unless offcourse you view our "leaders" as some sort of ......elite class or sumthin........maybe their "special"
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DEA teaches agents to recreate evidence chains to hide methods
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Re: DEA teaches agents to recreate evidence chains to hide methods
Hiding the sources and methods was rationalized by the bogus assertion "state secrets" on a global battlefield.
I put this in my first DOJ OIG complaint that Glen Fine and FBI HQ obstructed.
Why ACLU won't interview me....is anyone's guess???
I'm the most important client they could have in a long time......yet....ACLu has never responded to my communications.
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the url
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I wrote the US DOJ OIG complaint that Thomas Tamm reported to James Risen
Believe me when I say, "...the written laws and their interpretations are irrelevant when law enforcement and contract surveillance does not have to fear investigation or prosecution...".
Prior to The Enabling Laws passed after 9/11, the surveillance state was protected by county, municipal, state, and federal law enforcement. Torture, mind control, sneak and peak, warrantless eavesdropping, and the illegal dissemination of that tainted evidence was always hidden and used going back at least to 1986.
The real hot issue for CIA-FBI-DOJ was ignored: OPERATION SLAMMER (so called "non consensual human experimentation").
This is how the power elite running the secret corporate privatized surveillance state created Manchurian candidates like me. The CIA contracted out the "involuntary mind control chipping" of me, after I signed and sent my DOJ OIG Complaint back in 2004. Then, CIA-FBI tortured me in my home using the chip and other "sources and methods" hidden behind the bogus assertion that "state secrets" prevents review or investigation of numerous murders and attempted murders (including the attempted murder of SD US Sen Tim Johnson after I visited his Sioux FAlls, SD, congressional office).
There is a lot more info in my second complaint...but Glen Greenwald and others "did not want to talk to me". Not even The ACLU Nat Sec Division will interview me for five minutes?
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REVOLUTION
Just read this great book on decent Americans taking a stand against federal tyranny. I recommend it cause it's about each of us defending the U.S. Constitution for the future generations.
www.booksbyoliver.com
Fisher Ames once said, after the American Revolution, that 'we need to hang all the lawyers'. Well, the new NSA laws (NDAA) are so complicated that average Americans don't understand them.
The complete U.S. Constitution was only 3 1/2 pages & written in terms the PEOPLE could understand.
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Re: REVOLUTION
Imagine what it costs to litigate civil liberties....and what do you accomplish when badges-prosecutors-judges do not and will not police themselves or any other police state actor????!!!!!
Exposure in the form of litigation......is not a prosecution resulting in jail.
In 1986, the Patriot act and EIT were used on me to run Operation Slammer .......and...no US ATTY or FBI agent in Sioux Falls, SD,...ever...ever...ever conducted a prelim inquiry into my allegations after FBI HQ and FBI OPR had access to my DOJ OIG complaint?!!!
The problem is not bad law.....it's bad police state actors who will not uphold their fiduciary duty.
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Why Would Orwell be proud
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