This gives much to think about in terms of fundamental law and legal framework:
The NSA and the Emancipatory Limits of Legal Liberalism
It establishes this fact (contention? but it looks valid to me if it not rue then it probably should be)
"The formal institutional legal structure of our society
is meant to deal with concrete circumstances; events that have already
occurred or could possibly occur due to an actual prior pattern of
occurrence. In order to maintain a universal principle of how laws are
applied, at least in normative theory, the law can’t deal with ad hoc justifications for it based on possibilities
of future patterns of occurrence. The law must treat all occurrences
and patterns of occurrence through a universal application of the law
and disregard any and all possibilities of future occurrence unsubstantiated by prior patterns of occurrence as beyond its realm to legislate."
Probable Cause is a legal term. Linked only to a factual prior event with sufficiently substantiated legal/judicial justification to support legally sanctioned action? Probable cause linked to future facts is a....self evident impossible contradiction (good for sci fi movies)....logically stupid?
Probable Cause is a reason for exception to a right based on a factual past event....I guess that sounds good, my idea of the concept or what it should be. However it appears that it is a more liberal interpretation than others might have. Too bad, it looked like such a cut a dried thing.
Wikipedia says this about Probable Cause: (immediately after quoting the 4th amendment which, of course, is absolutely the first thing to do in describing before going on to describing the nature of the term)
"Probable" in this case may relate to actual statistical probability, or
to a general standard of common behavior and customs. The context of
the word "probable" here is not exclusive to community standards and
does not predate statistics, as some have suggested.[1]
Actual statistical probability. WTF? Did the NSA write this? Out of a context that would otherwise give some credibility to this stament? No. Look at the link. Just a bald face statement that sets the frame of discussion.
Actual? I suppose judged on what statistical probability is. In my opinion a good guess at the facts supported by some evidence that the guess is good. What better evidence than statistics? NSA think?
Actual statistics are Factually statistically accurate? Maybe in an alternate reality. Look at the prior post regarding the Allegory of the Cave. Statistics are shadows on the wall of the cave as far as truth goes. Think about this concept: Actual statistical probability is "Future Truth". Or: Probability = !00% Maybe true in the natural world. We die. The conceptual world? Some believe the truth is we live forever. So there! Future truths are factual!
My head is spinning! (self induced)
NSA has to do some mental back flips to justify what it does (make it legal). They must have a computer with a laundry program. Input something illegal and it comes out sparkling clean, no trace back to the dirt.
There seems to be two basic rules controlling action aimed by the NSA as targets for preventative action.
After the fact of a violation (however that may be defined)
Before the fact of a violation (before the fact is a self evident contradiction)
Iraq was a target before the fact. Among many targets of "preventative measures". We cannot wait for the bomb to dropped. If there is only 1%........If we think it will be done, it can be done, we cannot allow the possibility. If a kid is walking toward you offering the coke in his hand then shoot the kid..it might be a grenade. Situational ethics at the macro level is all the same. What else can you do? TINA. It is like the scene from Breaking Bad where the kid on the motor bike is killed. There was the slightest? chance that he may have been a danger. What else could be done to assure an absolute outcome. It had to be done. Does it make any difference if bad guys or good guys pulled the trigger? Shooting an innocent kid in Iraq that might be bad has better reasons? Your life or his? What is the probability and at what point does it tip the scale to pull the trigger? Tough question. A reasonable 50/50. What standard does the military or police stand by? Being shot at first?
Precedent set.
The NSA can and does collect info on everyone. The info is factual in itself, what was actually said or written. After the fact of some event that warrants looking at that and related informational facts, including meta data, That is forensic virtual crime scene information? It should all be in lock box like an evidence room. Evidence collected before the fact but never looked at until after the fact.
No looking at what was collected to make future factual guesses.
Tough to accept. American citizens will certainly die (statistically factual) that would otherwise live if future statistically generated probable facts are not generated from existing data.
Torture is a before the fact target action to extract after the fact information. That is why the facts extracted are legally inadmissible in a court of law....(pause to think about it here)....in a nation ruled by law. At least absolute rights defended by law.
There is a pacifist aspect to say that we will not strike until after we are hit. A true pacifist would never strike at all. I am not a true pacifist. But....what if it was your mother....That becomes ethical and who knows what anyone would do until the time comes.
Our ethics are codified in law and we must know exactly what will be done and the reasons for it in advance of when the time comes. Only prior facts can be the basis of that, not future facts proposing statistically unlimited scenarios with variable probabilities. That however seems to be the leg that the NSA wants to stand on.
It is wrong.
That is the leg our country stood on.
Always wrong. Maybe that is a fact.
Maybe all passive defensive measures are justified and prudent based on probable cause. Offensive measures are not. A binary decision problem if the rule is we must first be damaged in some fashion before offensive action can be taken.
Stand Your Ground and the action it allows and makes legal is based on what a person thinks and believes is the probable future outcome of a situation.
The NSA is a Stand Your Ground entity. That is so blatantly obvious. Googling those term gets nothing in my limited search that expresses the connection of that idea in the scope of national stance on the matter. It is just a bigger guy with a bigger gun facing a perception of a bigger future threat and having the means to do something decisive about the perceived statistically projected future threat now based on capturing and filtering what all the suspects are saying and doing.
All the usual suspects that are statistically a threat are all of us. The NSA cannot wait for the stuff to hit the fan to go after the doers of the deed after the fact. The only way to find them before the fact is to look at all the possibilities then rank them probabilistic . That is what they are doing.
Lesser of two evils is still evil. It is an old problem. Innocent until proven guilty is one way to approach it. Dealing only with facts after the fact is another.
Transparency and oversight give us all the opportunity to deal with this extremely difficult matter. NSA probably taking this position, considering the nature of who they are and what they do....
...(projecting the future since it is an unknown but probable fact the truth of which is not absolutely known because there is no evidence in fact by prior establishment) .....
You can't handle the truth. You don't want to know the truth. The only truth you need to know is that we are working to protect you and your future security.
How many times has there forward future looking protection resulted in terminating a future probable attack. 50? Later resolved to be 1 or 2?
But if only 1 life is saved because the NSA simply exists and inspires fear much less doing anything to stop a threat to our security then all (whatever they do and how they do it) is justified?
The NSA must be even more successful in framing and manipulating the issue for its employees than Fox news. Depending on twisted logic, smoke and mirrors. They ar after all a spy agency. Didn't work on at least one employee. Contractors are essentially employees.
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