Only in America.
Kenneth L. Wainstein, Esq., of the Cadwalader white-shoe law firm, is not only the author of the by-now notorious UMiami “prudential concerns” report of February 2013 (commissioned by NCAA President Mark Emmert; see my prior posts, “I Repeat: NCAA “Enforcement Review” by Cadwalader Found NO Violations”, http://wp.me/p15xE1-sE, and ‘The Fatuous NCAA Enforcement Review Report: Julie Roe Lash Got Bagged to Save Emmert and Remy”, 2/21/13, http://wp.me/p15xE1-qt)
That report preposterously found that NCAA staffers violated some airy, never-cited “prudential concerns” during their investigation of earlier allegations of serious NCAA Bylaw violations by UMiami.
Wainstein also, I was astonished to discover yesterday, served as former General Counsel and as Chief of Staff to the FBI Director, and also as a former assistant attorney general for national security between 2006 and 2008), and is also right smack dab in the middle of the current and piping-hot whole Snowden NSA surveillance/4th Amendment controversy.
(I had a vaguely similar sensation when I discovered in my adult life that Jimmie Davis, a 1940’s governor of Louisiana, was also author of that great American folk classic, ‘You Are My Sunshine.” A Governor wrote, I thought to myself, a folk song? — Cool!
There’s a great story Davis told, as we diverge to the important topics now, about Davis touring with his musical group in the 1920’s, performing in road houses and dance halls across the Louisiana and Mississippi deep south, being paid some pittance or another, so that his group of six musicians were able only to rent a one-bedroom cabin in motor courts which were common then, and all six had to sleep in the one big bed. He might’ve even told the story, which enjoyed variation and embellishment over the years, needless to say, to include the notion that the ‘Sunshine’ song was conceived in one of those six-person beds.)
And Wainstein is now on the defensive, because he was a major player in just rubber-stamping whatever NSA wanted. Much of this controversy, and the NSA’s breath-takingly broad interpretation of its’ powers, has it’s genesis in Wainstein’s legal opinions six or so years ago. Wainstein’s role is described as follows in this July 4, 2013 Washington Post story (http://www.silive.com/opinion/columns/index.ssf/2013/07/nsa_cant_tell_the_difference_b.html):
“Guardian also disclosed a November 2007 memorandum prepared for then-Attorney General Michael Mukasey by Kenneth Wainstein, who was in charge of the Justice Department’s National Security Division. On behalf of the NSA, Wainstein requested that the attorney general approve a powerful form of computer-assisted analysis of U.S. persons’ metadata, including their phone and e-mail records, as well as Internet Protocol addresses of individual computers. This information was obtained “by various methods, including pursuant to the Foreign Intelligence Surveillance Act,” the memo states.
“NSA has in its databases a large amount of communications metadata associated with persons in the United States,” the memo states.”
“In the memo, Wainstein argued, as other government officials have over the years and continue today, that metadata is not content, and therefore is not subject to protections under the Fourth Amendment. ” [Emphasis added]
This is the work of a narrow mind, which lacks historical context. The digital/technological advance generated over the last twenty years – an historical blink of an eye – is staggering. By comparison, the major advances in, for example, methods of war, involved four stages over the last 300 years, from line and column, to artillery, to tanks, to use of air-based assault. Effectively, the fourth amendment surveillance issues raised by the explosion in digital collection and collation capabilities in the last twenty years requires recognizing a scope of change fairly compared to the advances in four methods of warfare all in one fell swoop, from Step 1 (line and column) all the way to Step 4 (air-based assault), in the space of just 20 years.
The point is brought home by considering the “surveillance” activities of the secret East German police back in the 1970’s and early ’80’s. The Stasi owned and operated forty phone-tapping rigs. Forty! And if new information came in, suggesting that some new criminal or threat to the state had been identified, the Stasi apparatchik had to earnestly rank the threats to state security, to decide if this new potential “tap” would appear important enough to require removing (and switching over) one of the existing forty phone taps! This erstwhile-sophisticated, then-high-tech Stasi operation is to the current NSA surveillance data-gathering operation as (to paraphrase H.L. Mencken) a wart is to the Matterhorn.
What’s happened, which few Americans, including the Obama administration, recognize, is this: our Front Doors have moved. A man’s home used to be his castle, and the front door allowed him to close out the rest of the world, including his government, from entry, seizure or review. This door was one of the major tangible dividing lines for applying the fourth amendment protections which had its antecedents in the historical suspicion toward, and fear of, the power of the King. That front door defined, in the old, pre-digital age, the dividing line, and it was simple, obvious, and sacrosanct. But many of those things which formerly were plainly protected behind our front door — papers, legal documents, bills, diaries — were not strictly beyond governmental intrusion, because the fourth amendment allowed intrusion upon showing of some good faith probable cause for search.
Not just because the majority of us now store all those documents online, but also because so many of our commercial transactions now generate records which are ridiculously easy to compile and maintain — and the ease of compilation and maintenance is critical here — the government now appears, in one or only a few efforts for approval by a non-adversarial FISA court — to have access to many of those kinds of personal records.
The long view is that we are struggling to fit our historical consitutional protections within the current context of what could only have been seen but 30 years ago, by reasonable persons, as not just fantastic but probably delusionally-imagined technological changes. That struggle has been constrained, if not irrationally suppressed, by the emergence, since 9/11, of the paranoiac strain which has always lurked just beneath our national psyche. Foreign terrorism has killed perhaps 50 to 100 persons in the last decade since 9/11, and does not warrant the hyperventilated and spooked attitude of the NSA and lawyers such as Ken Wainstein, but that jumpy, shoot-first ethic remains a significant and sometimes belligerent part of the national debate.
Our Government Has, in the past, Recognized that Our Medical “Front Door” Has Moved, and Protects Us Nonetheless: Look, for example, at how our government has described (starting back in 1993) our “front door” when it pertains to medical records: those records require aggressive statutory protection, and explicit in-person, one-on-one, per-transaction authorization for use and maintenance, by the patient. Period. That’s why we all sign all that HIPPA (the acronym for the federal statute which so vigilantly protects our personal medical privacy) authorization form.
There exists every public policy reason for requiring similar protections for our personal commercial records, so that every commercial or governmental agency, should they want access to use or review of our personal commercial transaction records, would be required to similarly obtain such a signed, one-on-one, per-transaction release. (Both protections would be subject to the usual “probably cause” exception, allowing governmental access upon showing of a good reason.)
Refer, in fact, to Wainstein’s testimony last week (at http://www.c-spanvideo.org/program/313822-1, at 1:45) about the FISA court, and his fatuous notion that, because our well-established fourth amendment case law allows a prosecutor to obtain an ex parte warrant as regards a case against one person (which means the prosecutor shows up on his own, doesn’t even have to tell the other party, and gives his version as to why the judge ought to approve the wiretap or warrant) means that the current NSA practice of obtaining ex parte FISA court warrants to allow tapping/review/collation of data or metadata pertaining to millions or billions of people all at one time is entirely appropriate.
Stop and think a minute: might a fair, logical mind suggest that, with so many people’s data involved, such an ex parte procedure is highly suspect and, in light of the fact that millions or billions of people’s right are being trammeled, those masses ought be heard when the warrant or intrusion is requested – ex parte – by a self-serving governmental agency?
Wainstein, I should point out, did his client Mark Emmert a favor, and showed that, at least regards NCAA matters, he is savvy. The only possible interpretation of his emphasis upon “prudential concern” violation as regards the Miami charges is that his review (correctly) found that staff violated no statutes, criminal laws, or even NCAA bylaws or internal operational rules or de facto practices. None. But Emmert had previously (stupidly) squawked publicly to the press that his staffers had somehow egregiously violated one or more such written provisions. So Wainstein was boxed in by Emmert, and had to tell him: “hey look, I’ll say that the hiring of outside counsel was not a prudent thing to do. But that’s as far as I’ll go.”
If Wainstain had more courage, he’d have told Emmert that no violation occurred, and that he [Emmert] needed to tell the world that. Wainstain hid in the NCAA’s bushes, perhaps to feather his own career advancement with a prestigious and highly-visible client like the NCAA.
To what extent did Wainstein’s past (and current) support of the NSA meta-surveillance similarly require Wainstein to hide in the bushes, and first satisfy his own careerist motives, before protecting the interests of the average American citizen?
Jimmie Davis writing “Sunshine“? — that’s cool. Wainstein writing the ’07 memo supporting NSA surveillance? That’s appalling.”