I Would Actually Endorse A Sting and the Police State

Young teacher, the subject of warrant-less scrutiny...

By Robert H.

The latest libertarian trend is to claim we live in a police state.  Popehat is doing it here.

First off, our criminal justice system is terrible and rife with human rights abuses.  It's worse than you think (216,000 prisoners are sexually abused a year!  Most by guards! 30,000 people in a solitary confinement regime that amounts to torture!  Racial bias controlling who goes to jail!  The flashy stuff (NSA spying, Gitmo, secret evidence, etc). It's awful!)  But it's not police state bad.  In a comments section (one I don't particularly recommend reading, the conversation is dull) I explained why I don't think we are a police state.  I am just going to copy and paste that here.  Check out the last paragraph for another fascist libertarian sighting:

Since I was asked, I will rejoin the conversation for one more post.  My dividing line for police state/not police state is "does the rule of law routinely constrain the government's exercise of police power."  In America, it clearly does. 

This is not to say that it always effectively constrains the police power.  There are failures -- too many.  But boy howdy does it *often* constrain police power.  Let's take an example from my criminal defense days (working for a criminal law attorney as a law student.  As an attorney I have never practiced criminal law) and think about a DWI arrest in the city I was then living in.  Does the rule of law constrain how this goes down?  Clearly.   

Things that will happen during the arrest and trial of our DWI defendant which the cops are only doing or allowing because of the rule of law.  IE, shit they do not want to do but will (if this list is too boring, just replace it with the words "lots of things"):

1. Record the entire stop on camera.
2. Not force the defendant to take a breathalyzer test if he refuses.  Alternately, they could pay a judge to stay up all night signing orders that let them force tests on people.  They never did the second option when I was there because it is too costly and judges hate it.
3. If the defendant agrees to a field sobriety test, the cop will call a special officer trained in the field sobriety test, wait for him to show up, and then the new cop will spend a few minutes very carefully giving the test in a way that will stand up to scrutiny (cases got overturned too often when they tried to train every cop in giving the test, so they went to this new system).
4. Stop questioning the defendant if he asks for an attorney (remember, they are on tape).
5. Let the defendant call an attorney.
6. Get the D before a magistrate to make a probable cause determination within 48 hours of the arrest.
7. Give the D a hearing where he can make the case for reasonable bail, with some protections on the setting of bail.
8. Give the defendant access to and a copy of that tape I've been talking about.
9. Give the D a trial.  A jury trial if he asks for it.
10. Give the D time and evidence to prepare for the trial.  Exclude improperly collected evidence from the trial.
11. Give the D a right for his attorney to show up at the trial.
12. Make the trial public.
13. Pay a lawyer to represent the D if he can't afford one.
14. Let the D go if he wins the trial.
15. Let my boss appeal the trial.  This initiates a new trial that is public, itself appeal-able, etc.
16. Let my boss file collateral attacks on the D's imprisonment if he loses the trial and is imprisoned, IE federal habeas motions.
17.  Limit the term of the D's custodial confinement and the amount he can be fined.
18. Etc, etc, etc.

The cops wants to do none of this.  It is a lot easier to just pull someone over, realize they are clearly drunk, get him to a judge when you feel like it, and have the judge assign whatever sentence seems to him fair (or that his political masters tell him to assign). All these other things either make imprisoning my client more costly, harder, or impossible, depending on the facts of the case.  These things let my then boss negotiate or win outcomes the state police and DA don't want.  Even better, if the governor or president decide they don't like this stuff, in most cases they would be shit out of luck.  Or they could stage a military coup, I guess. 

These are also not iron clad protections.  A drunk driver hating cop could pull over the defendant, turn off his dashboard camera, shoot the D, and maybe get off.  But then again, anyone could commit a crime anywhere and maybe get off.  As things stand, the practical upshot of all these legal protections is the state doing things it doesn't like and people spending less time in jail because of it. 

Lots of states don't have most of these protections.  A public trial, a trial so rigorous you have to film yourself if you hope to win it, a right to an attorney, an exclusionary rule, careful monitoring of how cops administer sobriety tests, the ability to refuse the breathalyzer test, etc. etc. etc.   It's just not there.  It's a lot more like the "cop decides you are guilty, judge believes him and gives you the punishment he feels like" procedure.  If there is a judge.  And they bother to give your sentence a definite term. And the cop bothered to see if you were actually guilty of a crime.

So that's the rule of law.

***
In bigger things as well the government is constrained by the rule of law.  Even in Gitmo, a shining example of our system at close to its worst, the defendants have routinely been able to force the executive to do things the executive does not want to do (IE, have congress establish a procedure for the status reviews, stop strip searching detainees before they meet with their lawyers, give detainees meaningful access to federal courts, etc.)  Obviously the rule of law has, in the main, failed at Gitmo.  But it has done way way better than it would in many many other states.   

So again, the state screws up all the time!  Badly!  America perpetrates terrible human rights abuses!  The rule of law does not effectively constrain some state actors at some times!  We are torturing, as you say, tens of thousands of prisoners in solitary confinement at any given time!  That sh-- is f---ing terrible.  But turning away from those abuses to the core of American life, the rule of law is still really active and really powerful here, if not as active and powerful as we would like.  In a police state, that is not true.  Things aren't mostly nice here because we have a mostly nice police state.  Things are mostly nice here because we don't have a police state, and the state's ability to be mean is mostly constrained..

As an aside, my own take on how I came to my views is not that I was brainwashed to love America, because I am not a nationalist and would defend a whole host of other human rights abusing states from the name "police state."  Instead, I would explain it this way: I've studied and worked in the American criminal justice system and I know how  bad it can be.  I also have a passion for international human rights law, and know  just how bad other countries can be.  The rule of law is strong here.  Elsewhere, it is nonexistent.  Those are the police states.  

Finally, if you can indulge a request of mine, please begin your next essay on the American police state by stating your beliefs that 1. America is just as bad as Nazi Germany, and 2. Human rights and the rule of law were respected for everyone in Nazi Germany's core territories except for the Jews.  Those two beliefs are the single most surprising and important things someone could know about your world view before they invest time in reading your essays.

You'll Never Live Like Common (law) People

By Robert H.

Every educated American fancies themselves a constitutional scholar, but it's rare for a layman to be so brazen as to claim the role of legal historian.  Meet Alex Tabarrok.

Most crimes used to be based on the common law and ancient understandings of wrong (murder, assault, theft and so on) but today there are thousands of federal criminal laws that bear no relation to common law or common understanding...If someone tracked you for a year are you confident that they would find no evidence of a crime? Remember, under the common law, mens rea, criminal intent, was a standard requirement for criminal prosecution but today that is typically no longer the case especially under federal criminal law . 

Ok, first things first: Alex's main point has nothing to do with the common law, and it's a fine point.  Essentially he thinks too much is illegal in modern society, especially under federal law, and that that should make you nervous.  Agree or disagree, I don't have much to say about that.

But nearly everything he says about the supposed golden age of the common law is wrong.  This is long and technical, but worth doing:

A. "Most crimes used to be based  on the common law..."

Not really.  For those that don't know, the common law was judge made law that came to define much of our early legal regime.  But it never existed alone, and statutes (IE, what we normally think of as "laws") have always been an important source of criminal law.  For example, the greatest articulation of the laws of England (remember, we were their colony and inherited the common law from them) at the time of the founding (ok, just before the founding) is Blackstone's Commentaries on the Laws of England.  To pick a random chapter, this list of offences against public trade cites 11 crimes, only 3 of which were crimes at the common law (at least insofar as Blackstone mentions) and all of the rest of which were specified by statute.  This mix of common law crimes and statutorily defined crimes also existed in 19th century and early 20th century America, right up until Americans started drafting criminal codes instead of relying on the common law.

Maybe if someone counted they would find that, yes, at some point in some (or most) states there were technically more common law offenses than statutory offenses, but the idea that Americans used to understand criminal law as the special realm of the common law just isn't, as far as I know, true.

B. "Most crimes used to be based... on ancient understandings of wrong"

This is more arguably true, but I think it's important to add that many crimes during the glory days of the common law, while perhaps based on some ancient understanding of wrong, certainly don't fit our understanding of wrong.  I didn't actually pick the chapter of Blackstone linked to above at random, I picked it because Tabarrok is an economist and almost every crime listed there would horrify him.  Let's list the chapter's common law crimes:

1. Owling: transporting wool or sheep out of England, to the detriment of English cloth manufacturers.  I'm pretty sure Tabarrok opposes protectionist measures like this.
2. Cheating: this ranges from what we would now call fraud to stuff Alex does not now think should be illegal, including making bad beer or disobeying government price fixing.  Blackstone is not actually clear where statute ends and common law begins on this one.
3. The offense of forestalling the market: this is just buying something before it comes to market or talking someone into not bringing it to market.  I don't think most Americans would agree that saying, "Hey, Joey, why not just hold onto your cow instead of selling it" violates a fundamental understanding of wrong.

Common law crimes we would find abhorrent or silly or surprising are not limited to economic crimes.  For example, spreading false news against great men (felony punishable by imprisonment at common law), heresy (only a misdemeanor at common law), and the mere speaking, with no attendant act, of treasonable words (misdemeanor).

Now it can fairly be said that not all of this applied in 19th century America, obviously, and Tabbarok could argue that he is hearkening back to a 19th, not 18th century golden age of common law.  It could also be argued that Blackstone might be too late a source, and earlier in English history judge made law was more dominant and less inter-meshed with statutory laws.  But this raises further problems: as you travel into the 19th century legal principles Tabarrok doesn't like began to surface (he seems disdainful of the crime of attempt, for example, which really began to take root in Britain in the 1780's).  As you travel further back, legal principles Tabarrock speaks highly of had not yet developed (In england, mens rea only began to be thought of as required for almost every crime around the 17th century, for example (I think)).  So it's not clear what time period, exactly, Tabarrok wants to look to as the glory days of common law.

All that said, I am not an expert.  It's possible there was, at some time, a common law state where A. the criminal law largely consisted of common law, and B. it matched a modern understanding of right and wrong.  But I doubt it.

C. "But today there are thousands of federal laws that bear no relation to the common law or a common law understanding."

That's arguably true (no relation is a bit much. There is no federal common law, but common law principles still suffuse federal law), but I want to forestall a possible rhetorical trick and this is as random a place to do it as any: a defender of Tabarrok could say that his focus is entirely federal, so I shouldn't mention state common law in my response.  But I have to: there weren't many (any?) federal crimes at the common law.  For Tabarok to be making any sense, he has to be comparing the common law of England or American states to current federal criminal law.

D. "Remember, under the common law mens rea, or criminal intent,"

"Mens Rea" doesn't mean "criminal intent," it means "guilty mind," and refers to the mental state that must accompany most criminal acts for them to be illegal.  Intent is a type of mens rea, and the one most used under common law, but not the only one.  Negligence or recklessness or malice aforethought were other types of mens rea.

E. "... was a standard requirement for criminal prosecution."

Sort of.  As the common law went along, Mens Rea did come to be thought of as a requirement for crimes, reflecting the growing influence of ancient roman law on the common law.  But things were still kind of confusing: it wasn't really clear what mens rea requirements attached to what crimes (lots of those crimes listed by Blackstone, for example, don't specifically define a mens rea), and even as things began to be defined the definitions came piecemeal, with every crime getting its own idiosyncratic mens rea ("intent to deprive another of their property" for larceny; "malice aforethought" for murder; "a blameworthy state of mind regarding consent," among other definitions, for rape).  Generally these were divided into two camps: specific intent crimes, where the criminal intended some harm; and general intent crimes, where the criminal simply intended to do the criminal act but did not necessarily intend the subsequent harm.  But even that distinction was more confusing than helpful.  Point being, "mens rea" was never simple, well defined, and easily grasped under the common law.  When arguing how intuitive and simple the common law was, you can't just say "criminal intent was a standard requirement for criminal prosecution," without heavily footnoting that sentence.

Further, I suspect some common law mens rea requirements don't quite fit what an average person might think was fair.  For example, if I intend to slap an "Alex is Dumb" sign on your back via notebook paper and tape (intend an offensive touching), miss because you suddenly duck, and accidentally slap the person beside you (doctrine of transferred intent), and their brittle bone syndrome causes a serious injury, I am guilty of a serious felony (obviously the judge or prosecutor or jury will go easy on me, but Tabarrok sneers at such safeguards).  But if I was going to put the sign on our class's doorway, it suddenly opened, and I slapped the innocent bystander, I am guilty of no crime.  Maybe Tabarrok thinks that the first slap should be a felony, maybe he thinks that the distinction between the first and the second slap makes sense, but to me "meant a harmless prank, now guilty of felony battery" sounds like the sort of legal horror story Tabarrok was telling in his post, and the distinction between "accidentally slapped a guy after trying to put dumb sign on your back" and "accidentally slapped a guy after trying to put dumb sign on door" seems meaningless.  Longwinded point being: you can get bad results for seemingly harmless conduct under the common law, too.

F. "but today [a the requirement that a mens rea accompany an actus reus] is typically no longer the case, especially under federal law."

I am pretty sure this is false or misleading.  There are two kinds of criminal codes in America: those based off of the common law and its principals and those based off of the Model Penal Code (a model code without the force of law some clevermen drafted in the 60's).  The federal criminal law is more-or-less the former.  As a result, while it does have strict liability felonies (ie, statutory rape or, as Tabarrok points out, trespass to federal parks), most federal laws require *some* sort of mens rea. Indeed, there is supreme court precedent encouraging judges to interpret ambiguous federal statutes to require a mens rea requirement.  Just so, one of the crazy laws Tabarrok lists, obstruction of correspondence, has a mens rea requirement, specifically that the crime be done " with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same."   (As a total aside, while it wasn't a crime at the common law, obstructing the delivery of the mail has been a crime since 1792,  so it's a weird one to pick as an example of how our crazy modern criminal laws are so much worse than the past).

The caveat is misdemeanors and crimes punished by mere fines, which often don't have a mens rea requirement.  For all I know, if you count them it is true that most federal criminal laws are strict liability offenses.  But Tabarrok makes a point of how easy it is to commit felonies and harps on the seriousness of many of these crimes, so I think it's fair to demand that, if he is going to claim that federal law has abandoned mens rea requirements, he make it clear that he is mostly speaking in the context of misdemeanors .  

Just as an aside, model penal code states (Texas, for example) are much better about this than common law jurisdictions.  The model penal code strictly defined four levels of mens rea (five if you count strict liability) and specified that 1. unless otherwise stated, those mens rea requirements apply to *every* element of the crime, and 2. if no mens rea is mentioned in the definition of a crime, one should generally be read into the statute (this does not apply for "violations," basically a term of art for crimes with light punishment).  Strict liability felonies exist under the model penal code, but rarely.

In other words, the model penal code does a much better job than the vaunted common law when it comes to ensuring there is a clear, broad mens rea requirement attached to every major crime.  Instead of looking to the past, Tabarrok might want to look to the MPC for a successful counterexample to federal law.

***

So I want to emphasize that while I probably know more about the law than Alex Tabarrok, I am not a legal historian and don't practice criminal law, so some of this may be wrong.  I also want to emphasize that Tabarrok is smarter than me and is a better economist than I am lawyer.  But, by dent of not being one, he is a much worse lawyer than I am, and I am confident that at least *some*, if not *most* of how he compares the common law to modern federal criminal law is incorrect or misleading.

You may well ask why Tabarrok drags the common law into this argument in the first place, since the newspaper piece he is quoting does a great job of arguing that we have too much federal criminal law without bothering to mention the common law at all.  The answer, I suspect, involves his adherence to a strain of thought that began with Hayek (I think) and has probably best been articulated by judge Richard Posner, one of the greatest living American jurists around.  These fellows value the common law as an example of emergent order, thinking it's bottom-up approach to building a legal system beats the pants off of top-down, statist attempts.  I think the general consensus among legal scholars these days is that those guys got it wrong,  but I'll blog about that another day.

So yeah, apologies to anyone who actually read all of that.

More NSA

By Robert H. 


So this guy wrote an article observing, among other things, that 1. Federal prosecutors routinely pressure criminals to plead guilty, 2. Prison conditions in America can be brutal, and 3. Since the 70's, the courts have reigned in people's ability to avoid criminal conviction due to police misconduct during the investigation of their crime. So that's all true.

What's weird is that he presents these entirely as problems facing protestors and whistle blowers
 who leak classified documents.  And I've been seeing a lot of that lately, ever since the Aaron Swartz tragedy.

To be clear, every criminal defendant in America is pressured to plead guilty by the prosecution, many face terrible prison conditions (overcrowding, sexual assault by guards, long term solitary confinement, etc), and the courts have made exceptions to the exclusionary rule that affect all of us.  If those things mean Edward Snowden can't get a fair trial in America, no one can.  And if you only speak out when the criminals you like face abuses, don't be surprised if abuses become the norm.

As a total aside, plea bargaining exists as a cost cutting measure because trials are expensive (and it works, 90+ percent of criminal cases are resolved before trial).  Anyone who says "prosecutors pressuring defendents to plea bargain are wrong and defendants should be able to go to trial without fear of harsher punishment" needs to follow that sentence with "and here is my plan to fund a vast expansion in the numbers of prosecutors, judges, support staff, and courthouses, so that we will be able to timely try the vast number of trials I'm creating."  Or maybe "and here is my plan to cut down on the numbers of citizens we arrest and accuse of crimes."  Whatevs, just please be aware of why prosecutors do it and the pressures it will cause if they can't.

Just Why Are All These Intrusive Programs Legal?

By Robert H.

This is the only picture saved to the blog that could possibly fit
a post about constitutional issues, and I was too lazy to look on
wikimedia commons for a better one.

I've been blogging about some national security programs letting the government access  data related to our phone calls, plus some content held by foreigners outside the US (possibly, people are still wrangling over what exactly PRISM is).  Here's why they are probably legal:

1.  The Supreme Court has said you don't have a reasonable expectation of privacy in meta-data collected by third parties, like when the phone company keeps track of whom you are calling.  They've extended this to all sorts of information you've handed over to third parties.  The idea is that when you fork info over to other people, you run the risk of them ratting you out and so shouldn't be surprised if the government gets its hands on the info.

As a result, the government can constitutionally gather this information either with a subpoena to or with the consent of the third party.  The government does not need probable cause if it goes with a subpoena, since the that is thought to be less intrusive than a search (you gather the relevant documents yourself, at your leisure, selecting what you think is required, and then bring it to court).  There are some limits to how broad a subpoena can be, but the government only need bother with a subpoena in the first place if the third parties holding your data put up a fight.  If they are working with the government and handing over all the data voluntarily, there is pretty much no limit to what the government can ask for.

So, under the constitution all your meta data are belong to the government.

2.  That said, there are still often statutory protections that keep the government from gathering this stuff.  Sadly, in this case the patriot act has removed those.   The result is that the feds don't need probable cause to access third party routine business records when national security is on the line (or at least, when they say it is).

As a wrinkle on that, it does look like either the courts or the administration has imposed a reasonable suspicion standard on anyone who actually wants to access this data.  Which is nice, I guess.  A "reasonable suspicion" standard is a lower burden than probable cause -- think of it as the difference between thinking something is probably true vs having reason to think it might be true.

3.  In the case of PRISM, Courts have held that the executive has inherent power to search the contents of communications (IE, wiretap) if his purpose is gathering foreign intelligence.  Even better (from their perspective), the executive can pretty much spy like a fool on foreigners outside the US.

So that is that.

Still Banging my Drum

By Robert H.

Kevin Drum asks and answers a question.

[I]t's possible, even likely, that these professionals aren't abusing the data they've collected. Not yet, anyway. But does Obama really think that a government that collects this kind of stuff won't abuse it eventually? That's vanishingly unlikely.

Drum wants to know what Obama really
thinks and when he really thought it.

 That strikes me as an odd assertion for three reasons:

1. You'd think, with that degree of certainty, that Drum is thinking about some particular examples.  But I know a lot of history and I can't think of any.  There have been lots and lots and lots of governments that collected information on their people *and* abused that information, but normally they go hand and hand.  It's not like the communists in Russia created the Cheka, it gathered lots of information about people, and over time its resolve weakened and it started using the info to aid in torturing and imprisoning innocent Russians.  It tortured and imprisoned them right out of the gate.  Just so, it's not like the FBI got the power to wire tap and then used it responsibly for decades before ultimately backsliding.  It was bugging political dissidents from early in its history.

On the flip side, you can think of intelligence gathering operations that have been going on for a while without any abuse scandals.  Just off the top of my head, ECHELON has been targeting foreigners since before PRISM was a glint in some spook's eye, and as far as I know it has never been credibly accused of abusing its power to go after Americans.

2. I think it's just obviously wrong.  As I tried to make clear in my last post, simply keeping the government from gathering information is our first and weakest line of defense when it comes to keeping the government from abusing that information, so the government getting the information does not mean that the war is lost and abuses are right around the corner.   In America, even when the government can collect info in secret, most of the things it does to us -- tax us, seize our property, imprison us -- happen openly and can be challenged in court, where secret information gathered without due process can be disallowed (the exclusionary rule) or, at least, exposed.  The scary stuff is the supreme court making loop holes in the exclusionary rule or congress letting people be convicted with secret evidence or the states secret privilege letting abusive government actors avoid court.  The least scary stuff is the mere fact that the government is gathering information (duh, of course they are.  They have been for decades).  I'll say it again: the government gathering secrets is not as scary as the government using secrets, which is not as scary as the government using secrets in secret.

3.  The government is probably not doing anything illegal with these programs.   So I think it is a bit brazen to claim that illegal or unconstitutional abuses are a natural follow up.

***

So yeah, my point is A. If you don't think the government is abusing these programs, it's not inevitable that it will, B. The news of this week shouldn't adjust anyone's priorities.  The government gathering information is not nearly as scary as lots of the assaults on due process we already knew were happening. The key to surviving the information age with our liberties intact is not going to be locking down the flow of information to the government (or to anywhere else, for that matter.  Remember, the government isn't even invading our privacy with these programs, it's invading the privacy of companies we merrily gave access to our private information without a second thought.  Privacy is dying at our hands, not government's, and it's futile to imagine a world where we freely distribute and share our secrets but the government politely looks the otherway).  Rather, preserving our liberties will depend on 1. Maintaining (and expanding) a robust exclusionary rule for private information gathered without probable cause, while also expanding the definition of privacy to be more along the lines of "the stuff we work really hard to keep secret" as opposed to "the stuff, if there is any, we can actually keep secret," and 2. maintaining (and expanding) our ability to challenge government takings and restraints on speech in open court.

Big Brother Imprisoning You is Worse than Big Brother Watching You

By Robert H.

So this week we learned the government is gathering a lot of info about you without the usual procedures you jump through to get a search warrant (see links below), and people are freaking out.  But this ignores an important fact: search warrants themselves are really easy to get.  Search warrants aren't important because they make it hard for the police to search your house; they are important because they make it hard for the police to send you to jail.

Let's look at two attempts by the government to get information about you:

1. A cop goes to a judge and says a reliable informant he trusts promised you were a drug dealer.  He asks for a warrant to search your home.  The judge, inevitably, grants it.

2. A cop avers to the US foreign intelligence surveillance court that he needs meta data Verizon has about your calls, or searches through PRISM data in a way designed to avoid returning data about American citizens but which, in this instance, does return information about you.

To me, the procedure in one does not look much more rigorous than two, at least in terms of judicial oversight.  A cop trying to get an abusive search warrant just has to make up the existence of a reliable informant and, bam, a warrant is issued based on the testimony of "reliable informant" Lies McFartWhistle.

Lies McFartWhistle seen here (Lady McFartWhistle not pictured).

But now compare these two situations:

1. A cop made up the existence of a "reliable informant" to get a search warrant to your house, where he found drugs.  This comes out at trial after the warrant is examined and the cop questioned by the defense, the Court rules both that there was no probable cause for the search and that the officer did not act in good faith, and all the evidence springing from the search is ruled inadmissible.  Cops can't tell the jury they found drugs in your place; you go free.

2. A cop lies to get an FISC warrant and gathers data demonstrating you are a terrorist.  This data is then presented against you at trial. Because FISC warrants are secret, you cannot see the warrant or explore the reasons it was granted.  You go to jail.

Get my point?  It's very terrible when the government learns your private information and all, but it is really REALLY terrible when the government uses that private information to convict you of a crime.  Because of that, our number one safeguard against government intrusion into our privacy isn't magistrates issuing warrants -- they do so based on perfunctory and routine affidavits -- it is judges excluding evidence that wasn't gathered with probable cause.

In other words, the most important thing when it comes to the government invading your privacy isn't stopping the invasion itself, it is keeping the government from using the information they got to hurt you.  And that is why the use of secret evidence and secret warrants in criminal trials are and always have been the biggest threat to our way of life and to our privacy that has emerged in the war on terror.  And that's even if you include "terrorism" as something that has emerged in the war on terror.

So the new abuses that are being reported are bad, but you shouldn't take your eye off the ball: the real victims aren't we whose cell phone meta data is insecure, it is the terrorist being convicted or the immigrant being deported based on secret evidence approved by secret means.  It's not the government gathering secrets we should fear; it's the government using them.