Supreme Court Requires Warrant for Cell Phone Searches by Police
ACLU | June 25, 2014
WASHINGTON – The Supreme Court unanimously ruled today that police must obtain a warrant before searching the contents of a cell phone seized from someone who has been arrested, absent a true emergency situation. The American Civil Liberties Union had filed an amicus brief in the case, Riley v. California.
Steven R. Shapiro, the national legal director of the ACLU, had this reaction:
“By recognizing that the digital revolution has transformed our expectations of privacy, today’s decision is itself revolutionary and will help to protect the privacy rights of all Americans. We have entered a new world but, as the court today recognized, our old values still apply and limit the government’s ability to rummage through the intimate details of our private lives.”
Writing the court’s opinion, Chief Justice John Roberts said:
“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life’… The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”
Today’s ruling is at:
supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf
Court Rules No Fly List Process Is Unconstitutional and Must Be Reformed
Court Orders Government to Give Plaintiffs in ACLU Lawsuit a Chance to Clear Their Names
ACLU | June 24, 2014
PORTLAND, Ore. – In a landmark ruling, a federal judge struck down as unconstitutional the government’s procedures for people on the No Fly List to challenge their inclusion. The decision came in an American Civil Liberties Union lawsuit brought on behalf of 13 Americans who found themselves on the list without any notice, reasons, or meaningful way to get off it.
The judge ordered the government to create a new process that remedies these shortcomings, calling the current process “wholly ineffective” and a violation of the Fifth Amendment’s guarantee of due process. The ruling also granted a key request in the lawsuit, ordering the government to tell the ACLU’s clients why they are on the No Fly List and give them the opportunity to challenge their inclusion on the list before the judge.
“For years, in the name of national security the government has argued for blanket secrecy and judicial deference to its profoundly unfair No Fly List procedures, and those arguments have now been resoundingly rejected by the court,” said ACLU National Security Project Director Hina Shamsi, one of the attorneys who argued the case.
“Our clients will finally get the due process to which they are entitled under the Constitution. This excellent decision also benefits other people wrongly stuck on the No Fly List, with the promise of a way out from a Kafkaesque bureaucracy causing them no end of grief and hardship. We hope this serves as a wake-up call for the government to fix its broken watchlist system, which has swept up so many innocent people.”
According to media reports, there are more than 20,000 people on the No Fly List. Their only recourse is to file a request with the Department of Homeland Security’s Traveler Redress Inquiry Program (DHS TRIP), after which DHS responds with a letter that does not explain why they were denied boarding. The letter does not confirm or deny whether their names remain on the list, and does not indicate whether they can fly.
The ruling from the U.S. District Court in Oregon found, “[W]ithout proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the No-Fly List. … [T]he absence of any meaningful procedures to afford Plaintiffs the opportunity to contest their placement on the No-Fly List violates Plaintiffs’ rights to procedural due process.”
One of the plaintiffs in the case is Sheikh Mohamed Abdirahman Kariye, who is the imam of Portland’s largest Mosque.
“Finally I will be able to challenge whatever incorrect information the government has been using to stigmatize me and keep me from flying,” Imam Kariye said. “I have been prevented by the government from traveling to visit my family members and fulfill religious obligations for years, and it has had a devastating impact on all of us. After all this time, I look forward to a fair process that allows me to clear my name in court.”
The national ACLU, along with its affiliates in Oregon, Southern California, Northern California, and New Mexico, filed the lawsuit in June 2010 on behalf of 13 U.S. citizens, including four military veterans. In July 2012, the 9th Circuit Appeals Court reversed the district court’s dismissal of the case on jurisdictional grounds, allowing the district court to consider the case on its merits. In August 2013, the court found that constitutional rights are at stake when the government places Americans on the list.
Today’s ruling is at:
aclu.org/sites/default/files/assets/no_fly_list_ruling__-_latif_v._holder_-_6-24-14.pdf
More information on the case and plaintiffs is at:
aclu.org/national-security/latif-et-al-v-holder-et-al-aclu-challenges-government-no-fly-list
A recent ACLU report on the problems with the government’s overall watchlist system is at:
aclu.org/sites/default/files/assets/watchlist_briefing_paper_v3.pdf
FOIA Request On Effectiveness Of License Plate Readers Greeted With A Blank Stare By Virginia Police Department
By Tim Cushing | Techdirt | June 23, 2014
Law enforcement agencies are generally pretty happy with their automatic license plate readers. It allows them to harvest millions of plate/location records without having to exit their vehicles, much less slow them down. It also allows them to spring from their cruisers with guns out and force non-car thieves into submissive positions while they perform the sort of due diligence that should have been completed long before the cops/guns exited their respective holders.
What they don’t seem to like is anyone asking questions about the massive databases they’re compiling or whether they’ve bothered to institute any minimization/privacy policies. When questioned, they usually talk about what a great tool it is for crime-fighting, even if said tool contains millions of useless photos entirely unrelated to criminal activity. Some even claim that every single photo in the database is integral to ongoing investigations and therefore cannot be subjected to minimization procedures, much less the pesky FOIA requests of surveilled citizens.
And sometimes, these agencies are so sure they like the tech that they can’t even be bothered to determine whether it’s actually doing anything to assist in the business of law enforcement. Stephen Gutowski at the Capitol City Project recently asked the Fairfax County, VA police about the effectiveness of its license plate photo database and got this ‘FILE NOT FOUND’ statement in response.
This letter is in response to your FOIA request in which you requested the number of ALPR records Fairfax County currently has on file. This number is constantly fluctuating, but as of 05/20/2014 at 1003 hours there were 2,731,429 reads in the system.
You further requested any available metric the county uses to determine the system’s effectiveness. It was found that the Fairfax County Police Department does not possess any such responsive materials based on the information you requested.
The assumption here is that the system works. The Fairfax County PD occasionally posts arrests linked to ALPR database hits and… well, beyond that, the PD draws a blank. Presumably a handful of arrests justifies a multi-million image-and-location photo database. But this lack of self-assessment shouldn’t be acceptable, not for an agency that has abused its technology in the past.
It came to light late last year that the Fairfax PD trolled political rallies to grab more plate data, racking up nearly 70,000 photos in five days. This abuse prompted a local lawmaker to push legislation aimed at severely limiting, if not completely eradicating, ALPR readers in his district. Not a bad idea, as far it goes.
Virginia law enforcement agencies aren’t going to be happy with this move and they’ll be able to mobilize a pretty powerful opposition. But these are the same entities that tried to bury info on plate readers back in 2009, simply because they felt the public might try to get the system shut down if they knew what was going on. But the lack of controls or any gauge of the system’s effectiveness shouldn’t be allowed to escape unnoticed, because the failure to monitor error rates and hits can result in catastrophic consequences for citizens whose plates trigger false hits — something this system does at twice the rate of recoveries.
The license plate readers demonstrated a high error rate. Four ALPR vehicles used in Fairfax County over the course of five nights in February 2009 scanned 69,281 vehicles. The camera database produced twelve bogus hits and recovered four stolen vehicles, for a recovery rate of 0.6 percent and an error rate of 1.7 percent.
The technology can be used responsibly, but law enforcement agencies with tough minimization policies are almost nonexistent. And as we’ve seen twice in the last month alone, officers relying on faulty data aren’t making an effort to verify database hits before attempting to effect arrests. Someone’s going to be hurt or killed because of bad data, and hardly anyone in law enforcement seems to be concerned. If they did, strict policies on verification and disposal of non-hit data would be the rule, rather than the exception.
Battlefield USA: American police ‘excessively militarized’ – ACLU study
RT | June 24, 2014
Inheriting both the weapons and the mindset of the US military, police are becoming militarized and ‘hyper aggressive’ in their approach to maintaining security on the streets of America. A new study calls on police not to treat people as ‘wartime enemies’.
The tragic story of Jose Guerena, 26, who served as a Marine in the Iraq War, only to be killed by ‘friendly fire’ at his home in Tucson, Arizona, is becoming a disturbingly familiar one across the country.
On the morning of May 5, 2011, Guerena’s wife alerted him when she heard strange sounds and the silhouette of a man standing outside their home. Guerena got his wife and child into a closet, grabbed his rifle, and went to investigate. This proved to be a deadly mistake. A SWAT team opened fire on Guerena, who died on his kitchen floor with multiple wounds and without medical attention.
As it later emerged, the SWAT unit raided a number of residences in the neighborhood, turning up nothing more than a small bag of marijuana. No drugs were found in the Guerenas’ home.
Created in the late 1960s as “quasi-militaristic” units designed to handle emergency situations such as riots, hostage scenarios, and active shooter situations, the number of SWAT squads have since surged, and are “used with greater frequency and, increasingly, for purposes for which they were not originally intended—overwhelmingly to serve search warrants in drug investigations,” according to an ACLU report, entitled ‘War Comes Home: The Excessive Militarization of American Policing.’
The report examines 818 SWAT operations from July 2010 to last October, which were conducted by more than 20 law enforcement agencies in 11 states.
Today, paramilitary squads are better equipped to fight terrorists in foreign lands [occupations] than serve and protect US civilians at home, and are becoming a dark chapter to America’s newfound capacity for “needless violence” and treating its citizens like “wartime enemies,” it said.
The 98-page document details the militarization of state and local law enforcement agencies, courtesy of expensive federal programs, which are dispensing “weapons and tactics of war, with almost no public discussion or oversight.” Although explicitly aimed at fighting drugs, the strategy is backfiring, sowing fear and discord among citizens, many of whom are starting to fear police as much as criminals.
As the United States winds down its military operations in Afghanistan and Iraq, local police forces are getting the used ‘hand-me-downs’ from the US military. This makes some American communities resemble the latest occupied zones with police dressed in combat fatigues and driving MRAPs and carrying AR-15s down Main Street.
“Using these federal funds, state and local law enforcement agencies have amassed military arsenals purportedly to wage the failed War on Drugs… But these arsenals are by no means free of cost for communities. Instead, the use of hyper aggressive tools and tactics results in tragedy for civilians and police officers, escalates the risk of needless violence, destroys property, and undermines individual liberties,” according to the report.
One bit of curious hardware being distributed to local police forces from the government’s military closet is the MRAP (Mine Resistant Ambush Protected) vehicle, which gives troops protection from improvised explosive devices (IEDs). Using media sources, ACLU put the number of towns that now possess the armored carriers at around 500. Among the lucky recipients, Dallas, Texas, has one, as does Salinas, California and even the Utah Highway Patrol.
The report noted that even the Ohio State University Police own one of the MRAPs in order to give a sense of “presence” on big football game days.
The results of the report revealed a worrying trend: “If the federal government gives the police a huge cache of military-style weaponry, they are highly likely to use it, even if they do not really need to.”
Case in point: Gwinnett County, Georgia, which received at least 57 semi-automatic rifles, mostly M-16s and M-14s. One-third of the county’s SWAT deployments dealt with drug investigations; in half of them, the SWAT team broke down the door to get inside, “and there was no record in any of the reports that weapons were found.”
Other examples were provided in Concord, Keene, and Manchester, quaint New Hampshire towns in close proximity to each other, yet each took advantage of DHS grants to buy the military-grade armored BearCat (the amount of grants received by these agencies ranged from $215,000 to $286,000). Justifications for the need to acquire such vehicles pointed to weapons of mass destruction and the threat of terrorism.
The Keene police department, for example, cites in its application (which trumps Ohio State University’s need for armored vehicles to provide “presence” at big football games), the annual pumpkin festival as a potential terrorism target that requires the assistance of an APC.
Military-style mentality invades police
Another leftover from America’s military adventures abroad is the peculiar military mindset that allows US personnel to survive in hostile lands. Equally unsettling as spotting armored vehicles winding through the tree-lined streets of otherwise quiet American neighborhoods is the spectacle of local police officers receiving military-style combat training.
The US Department of Justice described the boot-camp conditions being used to train new police recruits.
According to a Bureau of Justice Report, “the majority of police recruits receive their training in academies with a stress-based military orientation. This begs the question: is this military model—designed to prepare young recruits for combat—the appropriate mechanism for teaching our police trainees how to garner community trust and partner with citizens to solve crime and public order problems?”
As a result, a so-called “warrior” mentality inside local police forces is “pervasive and extends well beyond hostage situations and school shootings, seeping into officers’ everyday interactions with their communities,” the report said.
The report describes a PowerPoint presentation that was delivered to Cary, North Carolina, SWAT team members entitled “Warrior Mindset/Chemical Munitions” for all Emergency Response Team personnel.
The National Tactical Officers Association (according to its website, the NTOA “strives to provide our members with the tools they need to protect an increasingly dangerous society”) urges trainees to “Steel Your Battlemind” and defines “battlemind” as “a warrior’s inner strength to face fear and adversity during combat with courage. It is the will to persevere and win. It is resilience.”
The question, however, is whether such an approach to policing is conducive to creating peace on the streets of America? An escalation of police operations going awry are growing cause for concern among civil rights groups.
In early June, for example, a toddler was severely burned and left unable to breathe on his own when a Georgia SWAT team tossed a flashbang grenade in his crib during a drug raid – over a single meth sale of $50. Bounkham “Bou Bou” Phonesavanh, a 19-month-old, was asleep in his portable crib in the same room as his parents and three older sisters, when police opened the door to the converted garage and threw the stun grenade in.
In the ACLU’s study, SWAT units forced entry into a person’s home using a battering ram or other breaching device in 65 percent of drug searches.
As the report emphasizes, the training documents do not suggest that SWAT teams “should constrain their soldier-like tactics to terrorism situations.” Moreover, the majority of SWAT raids examined for the report “took place in the context of serving search warrants at people’s homes—not in response to school shootings or bombings.”
The survey discovered that 62 percent of SWAT missions were for drug searches. Some 79 percent involved raids on private homes, and a similar proportion were carried out with warrants authorizing searches. However, just 7 percent of the incidents fell into those categories for which SWAT was originally designed to handle, such as hostage situations or shootings.
It is this type of military mindset, compounded with excessive firepower, which is turning many American communities into veritable tinderboxes, which only requires the slightest provocation to spiral into senseless violence and death.
The survey, which provided a small picture of the overall trend, reported seven cases where civilians died in connection with the deployment of SWAT units, two of which appeared to be suicides. Another 46 individuals were injured, often as the result of physical force by officers.
Background: ‘It’s a war zone in the US’ – Interview with Indiana sheriff
Update: ACLU sues Mass. SWAT agency for refusing to release records
So That’s Why They Kept the Drone Kill Memo Secret
By David Swanson | War is a Crime | June 23,2014
Now that the U.S. government has released parts of its We-Can-Kill-People-With-Drones memo, it’s hard to miss why it was kept secret until now.
Liberal professors and human rights groups and the United Nations were claiming an inability to know whether drone murders were legal or not because they hadn’t seen the memo that the White House said legalized them. Some may continue to claim that the redactions in the memo make judgment impossible.
I expect most, however, will now be willing to drop the pretense that ANY memo could possibly legalize murder.
Oh, and yall can stop telling me not to use the impolite term “murder” to describe the, you know, murders — since “murder” is precisely the term used by the no-longer secret memo.
The memo considers a section of the U.S. code dealing with the murder of a U.S. citizen by another U.S. citizen abroad, drawing on another section that defines murder as “the unlawful killing of a human being with malice aforethought.”
David Barron, the memo’s author, needed a loophole to make murder-by-missile a lawful killing rather than an unlawful killing, so he pulls out the “public authority justification” under which the government gets to use force to enforce a law. It’s a novel twist, though, for the government to get to use force to violate the law, claiming the violation is legal on the Nixonian basis that it is the government doing it.
Alternatively, Barron suggests, a government gets to use force if doing so is part of a war. This, of course, ignores the U.N. Charter and the Kellogg Briand Pact and the illegality of wars, as well as the novelty of claiming that a war exists everywhere on earth forever and ever. (None of Barron’s arguments justify governmental murder on U.S. soil any less than off U.S. soil.)
In essence, Barron seems to argue, the people who wrote the laws were thinking about private citizens and terrorists, not the government (which, somehow, cannot be a terrorist), and therefore it’s OK for the government to violate the laws.
Then there’s the problem of Congressional authorization of war, or lack thereof, which Barron gets around by pretending that the Authorization for the Use of Military Force was as broad as the White House pretends rather than worded to allow targeting only those responsible for the 911 attacks.
Then there are the facts of the matter in the case of Anwar al Awlaki, who was targeted for murder prior in time to the actions that President Obama has claimed justified that targeting.
Then there are the facts in the other cases of U.S. killings of U.S. citizens, which aren’t even redacted, as they’re never considered.
Then there are the vastly more numerous killings of non-U.S. citizens, which the memo does not even attempt to excuse.
In the end, the memo admits that calling something a war isn’t good enough; the targeted victim has to have been an imminent threat to the United States. But who gets to decide whether he or she was that? Why, whoever does the killing of course. And what happens if nobody ever even makes an unsupported assertion to that effect? Nothing, of course.
This is not the rule of law. This is savage brute force in minimal disguise. I don’t want to see any more of these memos. I want to see the video footage of the drone murders on a television. I want to see law professors and revolving-door State Department / human rights group hacks argue that dead children fall under the public authority justification.
Five Takeaways from the Newly Released Drone Memo
By Brett Max Kaufman – ACLU – 06/23/2014
This morning, a federal appeals court released a government memorandum, dated July 16, 2010, authorizing both the Department of Defense and the Central Intelligence Agency to kill Anwar al-Aulaqi, a U.S. citizen, in Yemen.
The publication of the Office of Legal Counsel memo comes, as the court noted, after a lengthy delay. The ACLU (along with the New York Times) has been fighting for this memo since we first asked for it in a Freedom of Information Act request submitted in October 2011.
Today’s release by the U.S. Court of Appeals for the Second Circuit is an important victory for transparency. But while the memo advances the public record in significant ways, it still does not answer many key questions about the government’s claimed authority to kill U.S. citizens outside of active battlefields. Here are several important takeaways from today’s release.
- Rather than more fully explain the government’s theory of “imminence,” the newly released memo fails to address it at all.
The previously disclosed “White Paper” on the targeted killing of U.S. citizens explained the government’s view that “the condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” But rather than give further explanation and clarity to that extraordinary and novel reading of “imminence,” the newly released memo — at least as presently redacted — fails to address that requirement in any detail whatsoever.
The memo, signed by David Barron, then–acting chief of the OLC (and now a newly confirmed First Circuit judge), tells us that “[h]igh-level government officials” determined that al-Aulaqi constituted an “imminent” threat to the United States. But the memo does not explain how the government interprets that requirement, nor does the memo explain the evidentiary standard the officials must meet in order to satisfy it.
- Likewise, the memo does not address the circumstances that would make “capture infeasible,” and killing therefore permissible:
Again, the White Paper summarized the government’s theory about the infeasibility of capture, but the newly released memo adds nothing of substance to that analysis. Importantly, though, the new memo does seem to indicate that its authorization for the targeted killing of al-Aulaqi was intended to be indefinite in duration, requiring only that the CIA and DOD continue to evaluate (without returning to the OLC) “whether changed circumstances” would make capture more feasible.
- “Under the facts represented to us . . .” & why judicial review matters
Throughout the memo, Barron conditions important legal conclusions on “the facts represented to” the OLC by other departments of the executive branch. The memo’s discussion of these facts is redacted, making it impossible for the public to evaluate whether the killing of al-Aulaqi meets even the government’s professed legal standard. Beyond that absence, however, the memo’s repeated conditioning of its conclusions on the version of facts presented by the executive branch makes clear why the government’s rejection of any judicial review in this context — either before or after the fact — is so fundamentally dangerous.
- The CIA — officially — has an operational role in the targeted killing program. From the court opinion released with the memo:
(See the opinion in full, with previously redacted passages highlighted, here.)
Until today, the government had argued that the CIA’s operational involvement in the targeted killing program was an official secret. In this case and in another ACLU FOIA case seeking documents about the program, the official unveiling of this fact should open the door to further disclosures about the CIA’s role in the program and about factual information, like numbers of civilian casualties caused by the program, that the government continues to maintain cannot be disclosed to the public.
- There are additional OLC memos addressing the lawfulness and constitutionality of the targeted killing of U.S. citizens — and the government will likely have to release portions of those as well.
Together, today’s release and the Second Circuit’s opinion make clear that the public is only just starting to understand the legal and factual basis for the government’s targeted killing program, as a great deal of information crucial to the public debate remains secret. While we will continue to press for additional disclosures in court, the government need not and should not wait for yet another court order before it discloses additional information to which the public is entitled. In the meantime, stay tuned for further analysis from the ACLU about the meaning of today’s release as well as what comes next.
New high-tech lampposts in Chicago will collect data on weather and people
RT | June 23, 2014
The streets of Chicago, Illinois will soon host some state-of-the-art new technology, but privacy advocates have concerns about certain data collection tools coming to the Windy City.
According to a report published on Monday by Chicago Tribune reporter David Heinzmann, a system of data-collection sensors will start being affixed to light poles and lampposts in the major Midwest hub sometime next month so that researchers and scientists there will have a new way to get their hands on some highly sought after information.
The “Array of Things” project being put together by the University of Chicago and Argonne National Laboratory’s Urban Center for Computation and Data will collect details about air quality, light intensity, sound volume, heat, precipitation and wind, according to Heinzmann’s report, as well as lay the groundwork for a vast infrastructure that will ideally let this kind of data, and even more, be collected for ages to come using additional new sensors. The installation of each utility box will cost less than $500, and officials told the Tribune that they’ll require less than $15 a piece for annual electricity costs. The technology inside the boxes that hold the sensors were developed with more than $1 million in funding from the likes of Cisco, Intel and others, the Tribune noted.
Last month, John Moore of technology website GCN wrote that all of this data will not only be collected to nodes throughout Chicago, but will also be sent to city computers so officials can scour it when in need of examining data trends as future projects are plotted out.
“Our intention is to understand cities better,” computer scientist and Urban Center director Charlie Catlett told the Tribune. “Part of the goal is to make these things essentially a public utility.”
Some say that these unassuming sensors have stepped over the line, though, because in addition to weather details and other seemingly invasive data, the “Array of Things” nodes in the Windy City will also look for cell phone signals being emitted by the mobile devices in the pockets of passersby.
In order to get a better grasp on population density within some parts of Chicago, the sensors being installed will also try to make contact with cell phones in order to get a rough number of how many devices — and presumably how many people — pass through a certain area at any given time.
The architects of the project told the Tribune that they are going to great lengths to insure that personally identifiable information isn’t sucked up, and said so far that any cell phone signals won’t be traceable back to the owner of the device that pings a lamppost sensor.
“We don’t collect things that can identify people. There are no cameras or recording devices,” Catlett told the paper. Sensors will be collecting “sound levels but not recording actual sound. The only imaging will be infrared,” rather than video, he said.
The sensors, Catlett added, “will not save address data, and will only count nearby devices.”
Critics say sucking up more data is inevitable, however, and warn that recording even miniscule amounts of information from cell phones could leave enough of a window for abuse to occur.
“If they do a good job they’ll collect identifiable data. You can (gather) identifiable data with remarkably little information,” Gary King, director of the Institute for Quantitative Social Science at Harvard University, told the Tribune. “You have to be careful. Good things can produce bad things.”
“If you spend a million dollars wiring these boxes, and a company comes in and says ‘We’ll pay you a million dollars to collect personally identifiable information,’ what’s the oversight over those companies?” asked Indiana University privacy expert Fred Cate.
“Almost any data that starts with an individual is going to be identifiable,” Cate said. “You may not care about the fact that it’s personally identifiable. It’s still going to be personally identifiable.”
Indeed, RT has reported extensively in the past about similar up-and-coming technologies that spurred outrage in other locales once considered for adoption. License plate readers that let law enforcement see where automobiles of interest are geographically located have caused concerns in numerous cities and towns across the United States, and lampposts like the ones in Chicago but with the ability to record audio and video has sparked outrage elsewhere.
Court Rejects Request That Secret NSA Evidence Used Against Terrorism Suspect Be Shared With Suspect’s Lawyers
By Mike Masnick | Techdirt | June 17, 2014
We’ve been following the case of Adel Daoud, an American citizen charged with terrorism. He’s one of the many, many folks that was arrested following one of the FBI’s infamous home grown plots (i.e. he was never actually involved in any terrorism, as all of his “co-conspirators” were actually FBI agents or informants, and there was never any actual threat or chance that he’d pull off an actual terrorist attack). Back during the (pre-Snowden) debates on renewing Section 702 of the FISA Amendments Act, Senator Dianne Feinstein used Daoud’s case as a specific example of when the program had been useful in stopping terrorism.
That caught the attention of Daoud’s lawyers, who noted that this was the first they’d heard of this, and it seemed pretty clear that the government had withheld the evidence that was used to bring Daoud to trial in the first place (which is, as you know, not really allowed). After asking for the evidence, the district court first said no, but then ordered that some of the documents being filed actually be shared with Daoud’s attorneys (who have the necessary security clearances). The DOJ, of course, flipped out at this idea that the lawyers for someone they’re trying to lock up forever should actually be able to see the evidence used against him and how it was collected.
This resulted in an appeals court hearing, which bizarrely had to happen twice after the FBI so scared court staff that they failed to record the public portion of the oral hearings. The hearings were also odd in that, at one point, everybody but DOJ folks and the judges were kicked out of the courtroom, raising serious questions about basic due process.
Unfortunately, Judge Richard Posner’s ruling (right after coming out with his good ruling on the public domain) has found that the evidence does not need to be shared with Daoud’s lawyers. He slams the district court judge for overreacting and over-valuing the concept of the “adversarial process” in the court room. Seriously.
The judge appears to have believed that adversary procedure is always essential to resolve contested issues of fact. That is an incomplete description of the American judicial system in general and the federal judicial system in particular. There are ex parte or in camera hearings in the federal courts as well as hearings that are neither or both. And there are federal judicial proceedings that though entirely public are nonadversarial, either partly or entirely.
Posner basically says that the district court judge herself should have looked over the materials first, to determine if it makes sense to pass them on, rather than defaulting to saying that they should be shared with the lawyers. As such, he basically reveals that the “secret hearing” that was held was to go over the material with the appeals court judges, and they’re satisfied that nothing needs to be revealed to Daoud’s attorneys.
… our study of the materials convinces us that the investigation did not violate FISA. We shall issue a classified opinion explaining (as we are forbidden to do in a public document) these conclusions, and why therefore a remand to the district court is neither necessary nor appropriate.
Posner also, not surprisingly, rejects the objection by Daoud’s lawyers to that secret hearing, noting that it was necessary to determine if the DOJ lawyers were being fully honeset with the court:
Their objecting to the classified hearing was ironic. The purpose of the hearing was to explore, by questioning the government’s lawyer on the basis of the classified materials, the need for defense access to those materials (which the judges and their cleared staffs had read). In effect this was cross-examination of the government, and could only help the defendant.
Defense counsel’s written motion cites no authority for forbidding classified hearings, including classified oral arguments in courts of appeals, when classified materials are to be discussed. We don’t think there’s any authority it could cite.
And, voila, the secret law and secret courts and secret evidence continue unabated…
For a very good analysis of this ruling, I recommend Steve Vladeck’s take, in which he notes that Posner seems to (somewhat bizarrely) confuse sharing details with Daoud’s lawyers in secret, with “openness” to the public. As Vladeck notes, the district court judge recognized that not everything had to happen publicly, but was (reasonably) concerned that just having a judge look over the secret FISA court ruling would not be sufficient, since the judge would not have the same view as the defense attorneys. Posner seems to ignore or misinterpret all of that.
The problem, from Judge Coleman’s perspective, is that it may not always be possible for a district judge to determine whether disclosure is necessary (as opposed to whether it “may be necessary”) without the benefit of adversarial presentation. That is to say, § 1806(f) conditions the disclosure of classified FISA materials to a defendant (or, at least, his security-cleared counsel) upon a finding by the district judge that may, in some cases, only be possible with defense counsel’s participation. This is why, in her order mandating disclosure, Judge Coleman devoted so much of her energy to the importance of adversarial proceedings, especially in criminal cases—not because all proceedings in U.S. courts are adversarial (they’re not), but because, in this context specifically, adverse-ness makes it easier for a judge to have faith that she is comporting with her statutory and constitutional obligations.
But rather than accept—or at least sympathize with—Judge Coleman’s efforts to square a circle, Judge Posner derided them by suggesting that the government has a right to keep these materials secret, repeatedly criticizing calls (one is left to wonder from where) for “openness.” “Not only is federal judicial procedure not always adversarial,” Posner wrote; “it is not always fully public.” This is true, but entirely beside the point; Judge Coleman wasn’t seeking to open the proceedings; she was seeking to provide security-cleared defense counsel (who, just like everyone else, are subject to the Espionage Act) with access to classified information.
Judge Finds Courts Cannot Protect US Citizens Tortured by US Government Officials Abroad
By Kevin Gosztola | Firedoglake | June 17, 2014
A federal district court dismissed a case that was brought by the American Civil Liberties Union on behalf of a United States citizen and against US government officials who allegedly tortured, abused and subjected him to rendition and incommunicado detention in Kenya, Somalia and Ethiopia. The dismissal was another stark example of how it is nearly impossible for torture victims to push for justice in an American court of law.
Amir Meshal was in the Horn of Africa when, on January 24, 2007, Kenyan soldiers captured and interrogated him. He was “hooded, handcuffed and flown to Nairobi, where he was taken to the Ruai Police Station and questioned by an officer of Kenya’s Criminal Investigation Department” and was told that the police had to “find out what the United States wanted to do with him before he could send him back to the United States.” He remained in detention without access to a telephone or his attorney for a week, according to the US District Court of the District of Columbia’s decision [PDF].
On February 3, “three Americans,” who turned out to be FBI agents, interrogated Meshal and told him he would be handed over to the Kenyans and remain stuck in a “lawless country” if he did not cooperate. The agents also accused him of “having received weapons and interrogation resistance training in an al Qaeda camp.” Supervising Special Agent Chris Higgenbotham, one of the officials sued, threatened Meshal with being transferred to Israel where the Israelis would “make him disappear.” Meshal was informed that another US citizen he had met in Kenya, Daniel Maldonado, who was also seized by Kenyan soldiers, “had a lot to say about” him and his story “would have to match.”
Meshal was flown by Kenyan officials to Somalia with twelve others on February 9. He was “detained in handcuffs in an underground room with no windows or toilets,” which was referred to as “the cave.” This was allegedly to prevent pressure from Kenyan courts to halt his detention and interrogation by FBI agents.
About a week later, Meshal was transported in handcuffs and a blindfold to Addis Ababa, Ethiopia. He was held there in incommunicado detention for a week before Ethiopian officials started \regularly transporting him to a villa with other prisoners where he could be interrogated by FBI agents. He remained in detention for three months and was moved into solitary confinement twice.
Finally, on May 24, he was taken to the US Embassy in Addis Ababa and flown back to the US. He was detained for four months and lost eighty pounds. US officials never charged him with a crime.
Judge Emmet G. Sullivan, who was appointed by President Bill Clinton, wrote in the decision, “The facts alleged in this case and the legal questions presented are deeply troubling.” But, he added, “Although Congress has legislated with respect to detainee rights, it has provided no civil remedies for US citizens subject to the appalling mistreatment Mr. Meshal has alleged against officials of his own government.”
In the past couple of years, Sullivan acknowledged, three federal appeals courts, including the appeals court for the DC Circuit, had rejected cases brought by citizens, including military contractors, who alleged they had been tortured or abused by US government officials. He claimed, “Only the legislative branch can provide United States citizens with a remedy for mistreatment by the United States government on foreign soil; this court cannot.”
ACLU National Security Project Director Hina Shamsi reacted, “While we appreciate the court’s outrage at the appalling mistreatment Mr. Meshal suffered at the hands of his own government, we are deeply disappointed at the court’s conclusion that it does not have the power to provide him a remedy.
“It is a sad day for Mr. Meshal and for all Americans, who have a right to expect better of their government and their courts than immunity for terrible government misconduct,” Shamsi added.
The judge’s decision “sends a deeply troubling and negative signal,” Shamsi told Firedoglake. “We’re considering our next steps in this case.”
Meshal was only seeking to hold particular US government officials responsible for the torture and abuse he had experienced. Nonetheless, Sullivan essentially accepted the government’s “national security” argument—that Meshal was “attacking the nation’s foreign policy, specifically joint operations in the Horn of Africa and executive policies which permit FBI agents to conduct and participate in investigations abroad.”
“As the government points out, these claims have the potential to implicate ‘national security threats in the Horn of Africa region; substance and sources of intelligence; the extent to which each government in the region participates in or cooperates with U.S. operations to identify, apprehend, detain, and question suspected terrorists on their soil; [and] the actions taken by each government as part of any participation or cooperation with U.S. operations.’”
In other words, allowing Meshal to sue US government officials would interfere with affairs that were entirely in the control of the Executive Branch and violate separation of powers. US government officials can engage in all manner of conduct against an individual so long as he or she is in the custody of a foreign government.
Jose Padilla, a US citizen who was detained as an enemy combatant and allegedly tortured for three years while he was in US military custody on the mainland, had his case dismissed. A US citizen and government contractor who alleged he had been “illegally detained, interrogated and tortured for nearly ten months on a US military base in Iraq” had his case dismissed. And US citizens Donald Vance and Nathan Ertel, who were US government contractors allegedly detained, arrested and tortured by the US military in Iraq, had their case dismissed.
These were the cases that Sullivan believed were “binding precedent” he had to follow yet he noted that a dissenting opinion in Vance’s case had warned that the judicial branch was “creating a doctrine of constitutional triviality where private actions are permitted only if they cannot possibly offend anyone anywhere.”
Judge Ann Claire Williams added, “That approach undermines our essential constitutional protections in the circumstances when they are often most necessary.” Sullivan added that the court feared this prediction was “arguably correct.”
FBI Supervising Special Agent Chris Higgenbotham forced Meshal to sign forms and told Meshal when he did not want to sign, “If you want to go home, this will help you get there. If you don’t cooperate with us, you’ll be in the hands of the Kenyans, and they don’t want you.”
Another Supervising Special Agent, Steve Hersem, told Meshal if he “confessed his connection to al Qaeda” only then would he be granted due process in a civilian court. Otherwise, if he didn’t “confess” he would be transferred to Somalia. Hersem also told Meshal he would “send him to Egypt, where he would be imprisoned and tortured if he did not cooperate and admit his connection with al Qaeda, and told him ‘you made it so that even your grand-kids are going to be affected by what you did.’”
While in Ethiopia, an unidentified FBI agent said he would only be sent home if he was “truthful.” Meshal repeatedly ask to speak to his lawyer but agents denied his requests.
The reality is that covert operations in America’s dirty wars are now more sacrosanct to the US government than the rights US citizens are supposed to enjoy.
US government officials deliberately refused to provide Meshal with a probable cause hearing or some form of due process. In fact, one of the only reasons the US Embassy got involved and he was eventually transported back to the US is because McClatchy Newspapers became aware of his detention and published a story under the headline, “American’s rendition may have broken international, US laws.”
If a US media organization had not found out about his mistreatment, how much longer would he have been held and interrogated by FBI agents who were threatening him daily?
IRS Claims Two Years Of Emails Were Destroyed In A ‘Computer Crash;’ Congressman Asks The NSA To Supply ‘Missing’ Email Metadata
By Tim Cushing | Techdirt | June 16, 2014
The IRS is currently being investigated by Congress for some possibly politically-motivated “attention” it directed towards “Tea Party” and other conservative groups that operated as tax-exempt entities. Along the way, IRS official Lois Lerner, who was the first to publicly disclose the inappropriate targeting, was also one of the first government officials to plead the Fifth (twice) in government hearings.
The Congressional investigation demanded copies of Lois Lerner’s emails from the IRS. Some were turned over to the House Ways and Means Committee, but not everything it sought. Now, the IRS is telling the committee that it’s not going to get everything it asked for.
The IRS has told Congress that it lost more than two years’ worth of emails involving former IRS official Lois Lerner, due to a computer crash.
House Ways and Means Committee Chairman Dave Camp (R-Mich.) on Friday said it was “unacceptable” that he was just learning of this problem now, after a lengthy investigation into Lerner’s involvement in the IRS targeting scandal.
Camp points out that the IRS withheld these emails for over a year before suddenly “discovering” they were unavailable. The IRS says it can find everything Lerner sent to and received from other IRS employees but nothing containing correspondence with those outside the agency.
Obviously, this convenient “computer crash” has generated a lot of skepticism. For one thing, a “computer crash” doesn’t really have the power to destroy electronic communications. Email is almost always stored somewhere else other than the local user’s computer. And even if the IRS meant a “server crash” instead of a “computer crash,” any decent server system contains multiple levels of redundancy.
The Blaze sought input from Norman Cillo, a former Microsoft project manager, who presented six reasons why he believes the IRS is lying about its inability to recover these emails. Number one on the list seems to be the most applicable.
I believe the government uses Microsoft Exchange for their email servers. They have built-in exchange mail database redundancy. So, unless they did not follow Microsoft’s recommendations they are telling a falsehood.
The IRS’s own policies on email state that its employees use both Microsoft Outlook and Exchange, which means it should have some form of backup available.
Secure Messaging enrollment is an automated process for all LAN accounts with an Exchange mailbox in IRS. You can find the instructions for configuring the Outlook client to use the certificates at the Secure Enterprise Messaging Systems (SEMS) web site: http://documentation.sems.enterprise.irs.gov/.
According to Cillo, the only other explanation for the IRS’s inability to recover these emails is that the agency is “totally mismanaged and has the worst IT department ever.” Unfortunately, the government seems to have a lot of mismanaged and terrible IT departments, so this may be closer to the truth than anyone would really like to admit. Perhaps the general ineptitude of large government agencies is behind the Treasury Department’s policy that all email sent to or from IRS employees be “archived” via hard copy printouts.
If you create or receive email messages during the course of your daily work, you are responsible for ensuring that you manage them properly. The Treasury Department’s current email policy requires emails and attachments that meet the definition of a federal record be added to the organization’s files by printing them (including the essential transmission data) and filing them with related paper records. If transmission and receipt data are not printed by the email system, annotate the paper copy.
There’s more information here, citing the IRS’s own internal guidelines on tape backups, etc., that suggest further levels of redundancy, as well as the commissioner of the IRS testifying that the agency stores its emails on servers.
Critics believe the IRS has simply “vanished” the crucial emails in order to cut Lerner adrift and make it appear she acted alone. Any evidence that would tie outside government agencies (including the administration itself) into this situation has been deemed unrecoverable. Supposedly, there should be paper copies of the missing emails, but no one in Congress has requested these and the IRS certainly isn’t offering to look.
But one Congressman thinks he has a solution to the missing email dilemma. Steve Stockman (last seen here threatening to bring a defamation lawsuit against someone who uttered true facts about his criminal past) knows some people who have a whole lot of email data just laying around.
“I have asked NSA Director Rogers to send me all metadata his agency has collected on Lois Lerner’s email accounts for the period which the House sought records,” said Stockman. “The metadata will establish who Lerner contacted and when, which helps investigators determine the extent of illegal activity by the IRS.”
Yeah, let me know how that works out for you, Steve. The NSA can’t even confirm or deny its monthly water usage at its Utah data site, much less that it has metadata pertaining to Americans’ communications.
[Sidebar: I do really love the fact that this sort of thing is becoming increasingly common — the use of the NSA as the backup-of-last-resort for phone/email/internet communications data. If anyone claims it can’t find email X or phone record Y, someone’s going to say, “Hey, I’ll bet the NSA has a copy!” Hilarious. The NSA will never again be allowed to pretend it doesn’t harvest data on American citizens.]
The whole letter, which begins with some light ass-kissing of new NSA director Michael Rogers (“thank you for your 33 years of, and continued service to, our country...”) and closes with a bit of grandstanding, surreally asking “the Agency” to send all relevant metadata on the missing Lerner emails to “Donny@mail.house.gov.” All in all, probably one of the most incongruous demands the NSA has ever received, a letter which conjures up the image of a late-night meeting in an underground parking garage, with sunglassed NSA liaisons handing over a briefcase full of metadata to a 19-year-old intern dressed in his dad’s suit.
It’s pretty hard to shake the impression that this is a coverup. As always, the specter of pure ineptitude lurks in the background, as it often does when large bureaucracies tangle with technology. But until the IRS presents further evidence detailing how exactly these emails went missing, it’s safe to assume there’s been an active effort made to cover up government impropriety.
Featured Video
Seyed M. Marandi: US-Iran War Inevitable: Kuwait and Bahrain May Fall
or go to
Aletho News Archives – Video-Images
From the Archives
Oil and the Israel Lobby
Reknowned economist M. Shahid Alam offers this excellent critique of Noam Chomsky’s defective analysis of the relative influence of Oil versus the Israel lobby over US foreign policy: … continue
Blog Roll
Aletho News- ICC ignored ‘very well-documented’ NATO crimes – ex-Libyan minister
- SNSC secretary dismisses US response to Iran’s conditions as ‘inadequate’
- Sanaa says Taiz roads open, secure for residents, warns Saudi forces
- Iraqi resistance group urges Saudi leadership to admit defeat, lift Yemen siege
- Trump’s Retreat: How Al-Aqsa Flood Took Down the US Empire
- Israel’s Military Actions in Lebanon Grossly Violate International Law — Lavrov
- Seyed M. Marandi: US-Iran War Inevitable: Kuwait and Bahrain May Fall
- Leaders Condemn Ansarallah Attack on Saudi Arabia While Ignoring Illegal War Against Yemen
- Leaked: Britain’s Covert Iraqi Psyops Network
- Yemeni Armed Forces Warn Airlines Against Using Saudi Airports, Exempt Mecca and Medina
- If Americans Knew
- After Oct 7, IDF policy allowed civilian casualties for even the lowest-ranking targets
- Israel’s Destruction of Southern Lebanon Intensified After the Cease-Fire
- The Last-Minute Decision That Gave Israel Its Name
- The American Conservative: How Trump Made the World Go Nuclear
- Meet the US generals and admirals advancing Israeli policy
- Opinion: Why news organizations should boycott Israel
- The Israeli witch hunt of Sami Abu Shehadeh exposes the lie of the ‘Jewish and democratic’ state
- No state has a ‘right’ to exist – least of all Israel
- Testimonies about Gaza’s civilian death toll expose Israel’s atrocities – Daily Update
- How Israel Conquered the Latin American Right
- No Tricks Zone
- New Study Suggests Large Regions Of The Pacific Ocean Have Been Cooling For The Last 80 Years
- Germany’s Green Energy Debacle: High Energy Costs Force Kahla Porzellan to Close After 182 Years!
- New Study: 50 Years Of The Most Aggressive ‘Net Zero’ Policies Can Only Affect The Global Climate By 0.03°C
- US September “Heat” Was No Record…Many Records Set Decades Ago
- Latest European Green Energy Debacle; Portugal’s Largest Flagship Solar Park Insolvent!
- Green Energy Debacle: German Expert Professor Fritz Vahrenholt Warns Of Severe Economic And Social Consequences
- Two More Paleo Reconstructions Affirm Meters-Higher Sea Levels Across Ireland, Brazil 7000-6000 Years Ago
- New Study: Earth And Venus Surface Warmth Largely Explained By Convection And Lapse Rate, Not CO2 Or Radiation
- 2025 Nature Paper Claiming Worsening Global Drought Gets RETRACTED …Heavily Flawed
- New Study: ‘Global Drought Shows No Detectable Recent Acceleration Under Climate Warming’
