We’ve documented again and again how the government has refused to tell the truth about NSA surveillance to news organizations, Congress, and the American public. Now it seems clear we can add the Supreme Court to that list.
First, it’s important to remember that just months before Edward Snowden became a household name, the ACLU was before the Supreme Court challenging the FISA Amendments Act—a key pillar designed to justify much of the NSA’s surveillance. The ACLU argued that since their clients—journalists, advocates, and lawyers—were the prime candidates to be subject to this surveillance, the clients should be able to challenge the law as unconstitutional.
Unfortunately, the government successfully convinced the Court that the case should be thrown out on procedural grounds. The Court ruled the ACLU’s clients didn’t have “standing.” Essentially, because they had no definitive proof they were being spied on, so couldn’t challenge the law.
At the time, many thought this reasoning was absurd, including four dissenting Supreme Court Justices. Given the law’s incredibly broad reach, of course surveillance was occurring. “Perhaps, despite pouring rain, the streets will remain dry,” quipped Justice Breyer.
So in order to convince the Supreme Court to throw out the ACLU’s challenge, the government smartly argued someone could have standing tochallenge the law. Otherwise, it may have seemed absurd to at least one more Justice, and the case might have gone the other way.
Solicitor General Donald Verrilli told the Court any defendant charged with a crime would be officially notified if they were subject to NSA surveillance and then someone could challenge it—an actual target. Prosecutors, according to the government, just hadn’t used FISA evidence yet in any court case.
Turned out, that wasn’t true.
As the New York Timesreported last week, “Mr. Verrilli’s assurances clashed with the practices of national security prosecutors, who had not been alerting such defendants that evidence in their cases had stemmed from wiretapping their conversations without a warrant.”
In other words, the argument the Solicitor General used to convince the Supreme Court to dismiss a challenge to the FISA Amendments Act was false, and the Solicitor General deceived the Supreme Court, though perhaps not wittingly. When Verrilli confronted the Justice Department’s national security lawyers who briefed him for his argument, they explained away this false statement as “a misunderstanding,” according to the New York Times.
The Solicitor General has apparently convinced the Justice Department to change its policy and they now claim they will start notifying defendants. If the Justice Department follows through, this move should have implications across the board and will be a welcome shift.
Remember, just a few weeks ago Reuters reported that the Drug Enforcement Administration (DEA) was receiving tips from the NSA, distributing them to local law enforcement, and then covering them up by then obtaining the same evidence under different pretenses. As we explained at the time, this not only violates the Fourth Amendment, but the Fifth and Sixth Amendments as well, which guarantee defendants a meaningful opportunity to present a defense and challenge the government’s case.
There’s also the enormous “Hemisphere” phone surveillance program, first revealed by the New York Times in August, which the DEA carries out in partnership with the AT&T. EFF just filed an amicus brief in a San Francisco case that looks suspiciously like Hemisphere surveillance was going on as well.
It’s too early to tell if the Justice Department is going to follow through on its promise to tell the truth about spying in criminal cases. Thankfully, the ACLU has sued under the Freedom of Information Act to find out the Justice Department official policies on notifying defendants of NSA surveillance.
This is only a start. Informing criminal defendants of warrantless wiretaps only exposes illegal spying on a small few, and the Justice Department has made no promises to inform the millions of ordinary American’s caught up in the NSA dragnet. But it’s an important step forward, and could lead to a court to rule on the legality of the program.
ACLU deputy legal director Jameel Jaffer has also called on the Solicitor General to file a formal acknowledgement with the Court that the government’s policy was misrepresented to the justices during arguments. As Jaffer explains, there is ample precedent for the government to do so in situations similar to this.
It’s important for the Court to know that the government has not been honest with them, as the Court considers other representations about secret programs. Unfortunately, this is not the only time the government has provided false and misleading information to a court.
The culture of misinformation around the NSA has to stop. EFF also calls on the Solicitor General to formally acknowledge to the Court its misrepresentations and promptly tell every defendant that was subject to NSA surveillance so they can challenge the unconstitutional laws behind it.
In an unprecedented article published in Al Shorouk newspaper on 19 October, the prominent Egyptian-American academic, Amr Hamzawy, berated Egypt’s left-wingers and liberals for their support of the 3 July coup. He said that ever since the coup at the beginning of July, democrats in Egypt have had time to sort the wheat from the chaff.
The article pointed out that the liberals and left-wingers who backed the military intervention, “isolated” the elected president and suspended the Constitution, which displayed an incredible lack of commitment to democratic principles. Communists, socialists, Nasserists and Arab nationalists have all shown us that they are unwilling to make political compromises. By agreeing to take part in the de facto government imposed by the military with total indifference to democratic legitimacy, such political groups pushed their ideologies into a long, dark tunnel. The fact that they not only keep quiet about the repression and state killings but also take part tells us all we need to know about such people; they have stripped themselves of all moral and political credibility.
On the media campaigns, the author said they had succeeded in influencing people and this probably contributed to how the Muslim Brotherhood and their religious allies were portrayed; as being irrational politically whilst being caught up in acts of violence and incitement. In turn, this pushed liberal and left-wing principles towards neo-fascism under which the return of repressive practices reminiscent of the security state became acceptable to the general public. It also prompted the use of phrases such as “war on terror,” “the security solution is the only solution,” “the need to exclude the religious right-wing,” and “human rights, civil peace, and transitional justice are luxuries Egypt cannot afford while facing terrorism,” and so on.
Such involvement in the repressive state apparatus has made it clear that democratic movements in Egypt cannot count on the left-wing and liberal politicians to help them regain the rights and freedoms that people fought and died for in the January 25 Revolution. If anyone was in any doubt about this, the rush by these politicians to back the coup leader, Abdel Fattah Al-Sisi, as president should have confirmed it. They are indifferent to the deception being practiced on the people of Egypt; the concepts of justice and accountability are being replaced by their demands that the state should act “decisively,” as if promoting bloodshed and killing is the way to end bloodshed and killing in society and restore democracy.
They also act as if stability is achieved when the state uses force and violence rather than justice and the law. These dark voices control the public arena and insist on silence or vocal support; no dissent is allowed as Egyptian politics joins the ranks of the fascist elites of the past. Contemporary norms around the world, ironically in the Western countries which have condoned the coup, promote negotiation, tolerance and respect in order to build civil society and democracy. Egypt today indulges in violence and “security solutions” while promoting hatred and exclusion.
Hamzawy noted that new initiatives have already borne fruit, such as the “No to Military Trials for Civilians” group. Self-criticism is leading to the rebuilding of links between rights and freedoms, elections and referendums, legislative and executive institutions subject to responsibility and accountability, as well as between those in the security forces who are neutral and stick to the rule of the law and citizens whose dignity is preserved and who can participate in the management of public affairs.
Since 3 July, the pro-democracy movement’s acknowledgment of the need to distance itself from the parties and movements that failed the 2013 exam has been matched by the economic, financial and media elites’ lack of commitment to the principles and values of democracy. Out of pure self-interest, the latter have restored a repressive regime against the interests of the people of Egypt.
The way forward for the pro-democracy movement, according to the author, is to learn from the lessons of the past couple of years. The future will be difficult, but their success will depend on how well they can re-boot themselves based on this invaluable, if painful, experience.
A little more than three-hundred years ago, the most notorious case of mass hysteria erupted in Salem, Mass. Thankfully, the witchcraft trials, which took place in the pre-revolutionary era, would serve as a cautionary tale for the nation’s Founding Fathers who wished to embed into our national memory the ideals of freedom and due process. Nearly a hundred years after the trials, 39 of these great citizens would sign the U.S. Constitution, a revolutionary document recognizing the inalienable rights given to every person at birth, irrespective of citizenship.
Regrettably, after the atrocities of September 11 another wave of mass hysteria swept through America. But this time, it was not of imaginary witches, but rather imaginary terrorist cells bubbling in the caldrons of every peaceful neighborhood, mosque, and city around the world. Fear of the “other” crept into the American psyche and lapses in due process became more and more frequent. Three-hundred years ago, citizens in Salem gladly set aside their due process at the mere mention of a “witch.” In the wake of September 11, the mere mention of “terrorist” has a similar effect upon our countrymen. Explore patterns of history, and one discovers that every new villain is born, first, in the imagination of a people, to describe the unknown and undesirable.
Almost all of the 164 detainees at Guantanamo Bay have never been charged with a crime. More than 80 inmates who have been cleared for release, by the U.S. government following an assessment by the Guantanamo Review Task Force set up by President Barack Obama, have yet to be released because of Congressional restrictions on the transfer of detainees to the U.S. and other countries. This, in part, is based on the Military Commissions Act of 2006, which states that “no court, justice or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial or conditions of confinement of an alien who is or was detained by the United States.” On Friday, a federal appeals court wrestled with a challenge to force-feed hunger strikers, many of whom are far from death. Detainee lawyer Jon Eisenberg said that he objects to this incredibly painful process of nasogastric force-feeding (through the nose), in principle, arguing that the international community sees it as “unethical and equivalent to torture.”
In 1798 Thomas Jefferson and James Madison sought to remind this country of what it had forgotten and even threatened to secede from the Union after the passage of similar set of unconstitutional actions, the Alien and Sedition Acts by then president John Adams. The Acts curtailed key civil liberties, such as freedoms of speech and press, and were aimed at French and Irish immigrants who opposed war with France– most of whom were Catholics and/or Democrats (Anti-Federalists). Jefferson and Madison’s threat to leave the Union was to remind the country that the ideals found in the Constitution are more than just mere words, but the foundations of a stable and just society.
While in Salem accused “witches” who did not confess, were hanged; in Gitmo (Camp Delta), accused “terrorists” have been tortured, held indefinitely without trial, nasogastric force-fed, and even gifted with “extraordinary rendition” to rogue nations, only to disappear out of existence.
To protest their indefinite detention at Gitmo, more than 100 prisoners have for the past seven months engaged in a hunger strike. To try to break the protest, the US military subjected dozens of the hunger strikers to the cruel and degrading practice of nasogastric force-feeding. This last Friday, the Federal Court of Appeals in Washington, DC heard a case that it first ruled on in July, seeking an injunction against force-feeding at Guantánamo on the grounds that it violates human rights and the right of religious worship.
At the height of the terrorist hysteria following 911, many believed that water boarding would exorcise the truth out of accused terrorists. Similarly, in Salem, accused witches were often put through “enhanced interrogation” with the hope of achieving a similar end. One unique practice of New Englanders was the use of “pressing,” a process that involved placing heavy stones on the accused’s chest until he/she confessed or died. In 1692, after being arrested for witchcraft, Giles Corey refused to enter a plea of guilty or not guilty and was subjected to “pressing,” where he died a couple days later.
Not surprisingly, most of the accused in Salem, Massachusetts were individuals with an independent streak, barren women, the homeless or litigious, or those that challenged the status quo. In Gitmo, many of the prisoners include children, individuals who were part of a warring tribe or had strong political opinions, as well as victims of bounty hunters interested in making a quick buck at the expense of the innocent.
America, critics argue, has lost its bearings like a ship lost at sea, no longer able to lead– even itself. Many have attributed America’s decline on the international scene to weak leadership, but perhaps a more sensible reason, is that America is no longer true to its core identity and ideals. Since George W. Bush established the detention camp on the isolated base in Cuba, in the hopes of operating outside normal standards of the US constitution, and President Obama continues with the practice, our moral high ground has been compromised.
Apparently, for both the Bush and Obama Administrations, the mere accusation of terrorism continues to suffice for guilt. Ironically, in the Salem witchcraft trials, accusers were afforded, at least, a pseudo-trial. In Guantanamo, prisoners are deemed indefinitely guilty without even the pretense of a trial. One wonders what the Founding Fathers’ would think of this debacle. One can only hope that the next president and Congress will work feverishly to dismantle, completely and permanently, this most un-American of institutions and return America to its founding ideals. Here’s for hoping.
Hazem I. Kira teaches US History and Government in the San Francisco Bay Area.
Tonight, the Keene city council could have made history as the first ever political designation to reject arms manufacturer LENCO and the federal government’s pushing of the BEARCAT police attack “tank“.
They could have heard the voices of the people who were crying out against this intimidating monstrosity that will inevitably militarize the Keene police even more, and as city councilor Carl Jacobs appropriately pointed out, distance them further from the community they supposedly serve.
They could have. But they didn’t. The BEARCAT passed 9 to 4.
Despite the outpouring of opposition in the community against the BEARCAT, not a single councilor changed their vote from December, when they originally voted in favor of it. That vote was 13 to 1. Why were the numbers different? The new city councilors who took office in January were the ones to vote against it. So, the councilors who originally voted for it completely disregarded all the input they received from the community in various forms:
In a Keene Sentinel online poll, 72% said they city council was wrong to accept the BEARCAT. (Only 12% favored the BEARCAT in the poll.)
City councilor Bettina Chadbourne related during tonight’s meeting that of the 80 phone calls she received from various members of the community, (old, young, business owners, men, women, etc) only ten calls were in favor of the BEARCAT.
A random walk down Main St. would show anyone who bothered to ask people that the supermajority of people oppose the BEARCAT.
Most letters to the editor of the Keene Sentinel were in opposition to the BEARCAT.
During the meeting the councilors who favored the BEARCAT got no applause from the packed room, while the councilors who spoke in opposition to the BEARCAT were blasted with applause.
The reasons given for supporting the BEARCAT by the councilors were pathetic. Mitch Greenwald believes the Department of Homeland Security has our best interests in mind. Dale Pregent believes it will help in a flood. Janice Manwaring trusts the Keene Police to be good boys with their new, violent toy. Look for video here at Free Keene soon.
Not one of them changed their minds. The emails they received, the calls, the personal contacts – none of it mattered. None of it outweighed what the Keene police wanted. […]
Congratulations to the people calling themselves the Keene Police and City of Keene. Tonight they succeeded in proving that they don’t give a damn about what the people in the community want and effectively destroyed even more of the precious legitimacy that is so crucial to people seeing them as something other than an occupying criminal gang. Even though the advocates of peace lost in the vote, we won in the long view, because the aggressors have shown their hand yet again. They don’t care about your desires to live in a peaceful place. They only do what aggregates more power and money to them and their buddies. It’s clear they are the masters, not the servants. … Full article
France has called for an explanation for the “unacceptable” and “shocking” reports of NSA spying on French citizens. Leaked documents revealed the spy agency records millions of phone calls and monitors politicians and high-profile business people.
The US Ambassador to France Charles Rivkin was summoned by the French Foreign Ministry to account for the espionage allegations on Monday morning.
“I have immediately summoned the US ambassador and he will be received this morning at the Quai d’Orsay [the French Foreign Ministry],” French Foreign Minister Laurent Fabius told press. He added that “we must quickly assure that these practices aren’t repeated.”
In addition, citing the report on French publication Le Monde, Interior Minister Manuel Valls spoke out on national television against US spy practices.
“The revelations in Le Monde are shocking and demand adequate explanations from the American authorities in the coming hours,” said Valls on television channel Europe 1.
He went on to say that it is totally unacceptable for an allied country to spy on France.
Ambassador Rivkin refrained from commenting on the spy allegations on Monday morning and told Reuters that French-US ties are the “best they have been for a generation.”
Le Monde revealed in a report based on the security leaks of former CIA worker Edward Snowden that the NSA recorded 70.3 million phone calls between December 10, 2012, and January 8, 2013.
The NSA reportedly carries out its espionage in France using a program called ‘US-985D’ which is able to listen in on specific telephone calls and pick up on text messages according to key words used.
Moreover, Le Monde also wrote that it had reason to believe that the spying was not just limited to citizens suspected of being involved in terrorism. According to the data released by Snowden the NSA also eavesdropped on politicians and prominent business figures.
The newspaper did not give any indications as to the identity of the high-profile people.
France is not the only EU nation to be targeted by NSA surveillance. Germany took issue with the US government after it was revealed the NSA was tapping phone lines and recording electronic data in the country.
The EU will take steps to curtail US data mining on Monday in a vote to change data protection rules. The European Parliament’s Committee on Civil Liberties is expected to decide on the issue that would authorize fines for violation of EU data protection.
‘Investment benefits’
The US maintains that its spying activities are in the interests of national security and protect against terrorism. However, Snowden leaks released by Guardian reporter Glenn Greenwald showed the NSA had monitored Brazilian state-owned oil giant Petrobras and infiltrated the electronic communications of the Brazilian and Mexican presidents.
Mexico has also demanded an explanation for reports released by Der Spiegel on extensive spying on Mexican top officials and politicians.
Der Spiegal revealed that former President Felipe Calderon had also been a target for NSA espionage. Citing a classified internal report, it said the US monitors “diplomatic, economic and leadership communications which continue to provide insight into Mexico’s political system and internal stability.”
[Note: Since the lifting of the federal court gag order on October 2, Ladar Levison and his company, Lavabit, have been getting some media attention (including a somewhat snide and incomplete story on page one of the New York Times). What follows in an effort to reconstruct at least the outline of a personal nightmare inflicted by our government on a small business owner who had done no wrong, even in the government’s eyes – at least until he started taking his constitutional rights seriously.]
The Fourth Amendment of the U. S. Constitution is anti-police-state
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” [emphasis added]
The founding document of the United States is inherently suspicious of a government’s willingness to abuse its powers, a suspicion rooted in centuries of tyranny around the world. Even the U.S. government, as well as state and local governments, have abused their powers from time to time since the country’s beginning. The drift toward an American police state intensified under the guise of anti-Communism, but that was mostly a convenient cover for state intrusion into people’s lives. The Soviet Union collapsed, but the nascent American police state kept growing. The Patriot Act of 2001, a massive assault on personal and political liberty, was largely written before 9/11 and passed, largely unexamined, in the hysterical atmosphere and raw panic of that over-hyped “new Pearl Harbor.”
Now we have a police state apparatus of almost unimagined dimension, most of which is kept secret and remains unknown, despite the efforts of a few reporters and whistle blowers, who tell the truth at their personal peril.
The “American police state” is likely an abstraction in the minds of many people, and as long as they remain unknowing and passive, it’s likely to leave them alone. But even law-abiding innocence is not a sure protection of a person’s right to be secure. And when the police state comes after you in one of its hydra-headed forms, the assault can be devastating.
For starters, the state won’t always tell you when it begins
The intrusion of the police state into your life can shatter your world even before you realize it’s begun. Fight it, or surrender to it, the cost is huge. Recovery may be possible, eventually, if it’s ever allowed, but it will be hard, and it will take time.
In May 2013, Ladar Levison was 32 when the police state first came after him. The dreaded “knock on the door” was actually only an FBI business card on his door at home. And Levison’s initial interactions with the FBI were reportedly mild and civil, at first by email and later in person. The FBI was interested in Levision because he owned and operated a secure email service called Lavabit. From the FBI point of view, Lavabit was too secure, because the NSA and the rest of the security state couldn’t get into it.
Right out of college, Levison had started Lavabit as a sole proprietorship in April 2004 (the same month Google launched Gmail at a much greater scale). Having grown up in San Francisco, Levison studied computer science at Southern Methodist University in Dallas, where he still lives. While working on his start-up, he supported himself mostly with internet security projects for financial services. He also worked as a consultant on website development for clients such as Dr Pepper, Nokia, and Adidas.
What Lavabit was selling was secure email, much more secure than anything Google, Microsoft, or most other email providers were offering. The demand was not that great at first. It took six years for Lavabit to gather enough paying subscribers to allow Levison to devote himself to the business full time in 2010. Even when the FBI became interested in Lavabit in May 2013, it was still a small company, with two employees and about 400,000 subscribers. But one of those subscribers was another American about Levison’s age, 30-year old Edward Snowden, the whistleblower whose leaked documents have added so much to our understanding of the dimensions and activities of the American police state. Snowden opened his moc.tibaval@nedwonsde email account in 2010.
Political repression may not be the government’s overt intent, but it works
At this point, there’s no indication that Levison and Lavabit ever had anything but a commercial relationship with Snowden. It’s even possible that Snowden had nothing to do with the FBI’s initial interest in Lavabit. It may be that Lavabit’s effective security was sufficient offense to the surveillance forces to make it an object of attack for its own sake. In May 2013, Levison says he had the impression the FBI agents who talked to him didn’t even know who or what was the subject of their investigation. The FBI hasn’t said.
Levison is not an obviously political person, he hasn’t been revealed to be involved in party politics or political causes. “Until last summer, Mr. Levison, a Republican of libertarian leanings, had not been active in politics,” according to the New York Times October 9. He seems to be the person he seems to be: a thoughtful, hardworking, physically fit, computer business guy who has had a dog named Princess since January 2010 and who spends a lot of his spare time keeping in shape playing beach volleyball.
Princess has her own album on his Facebook page, where the dominant theme by far is Levison’s competition in beach volleyball (with albums for Sunday Night, as well as Monday, Tuesday, Wednesday, and Thursday Nights) and there is one picture of Levison with Rep. Ron Paul. Levison’s page shows membership in just one Facebook group, “OCCUPY (Support) EDWARD SNOWDEN and All Other Whistleblowers,” to which someone else added him about two months ago. Among his 43 “Likes,” Levison lists two Interests (programming and computers), lots of volleyball Activities, and six books, including William Gibson’s Neuromancer, George Orwell’s 1984, and Dostoevski’s Crime and Punishment.
From another perspective, Levison is as political as the Fourth Amendment, which is as profoundly political as it gets. It was the Patriot Act’s assault on the Fourth Amendment, Levison says, that contributed to his decision to start Lavabit in 2004, when the act was up for renewal and much in the news. Among the many objections to the act was that it gave to federal agents excessive authority to, in effect, write their own search warrants on no other authority but their own. In the Orwellian language of the act, these personal searched warrants are known as “national security letters.” Levison designed the security architecture of the Lavabit email and storage services to be beyond the reach of unwarranted searches, even in national security letters. As Levison recalled on Democracy Now! in August:
“And as I was designing and developing the custom platform, it was right around when the PATRIOT Act came out. And that’s really what colored my opinion and my philosophy, and why I chose to take the extra effort and build in the secure storage features and sort of focus on the privacy niche and the security focus niche…. [for] people who want email but don’t necessarily want it lumped in and profiled along with their searches or their browsing history or any of their other Internet activities.”
You can’t reveal what you don’t know – and that provides more security
During May 2013, Levison met for “a couple hours” with FBI agents at his office, where he explained how his security system and his business operated. As Levison told Democracy NOW! the service included his personal pledge of security:
“I’ve always liked to say my service was by geeks, for geeks. It’s grown up over the last 10 years, it’s sort of settled itself into serving those that are very privacy-conscious and security-focused. We offered secure access via high-grade encryption. And at least for our paid users, not for our free accounts—I think that’s an important distinction—we offered secure storage, where incoming emails were stored in such a way that they could only be accessed with the user’s password, so that, you know, even myself couldn’t retrieve those emails.
“And that’s what we meant by encrypted email. That’s a term that’s sort of been thrown around because there are so many different standards for encryption, but in our case it was encrypted in secure storage, because, as a third party, you know, I didn’t want to be put in a situation where I had to turn over private information. I just didn’t have it. I didn’t have access to it.”
Over the years, Lavabit has received and complied with “at least two dozen subpoenas” from the local sheriff’s office to the federal courts, Levison says, “I’ve always complied with the law.” Each of those subpoenas targeted a specific individual and appeared to Levison to be consistent with the Fourth Amendment. As recently as June 2013, he complied with an unrelated subpoena seeking information on one of his subscribers accused of violating child pornography law.
A secret subpoena from the American police state is different
On June 6, 2013, the Guardian began publishing surveillance state revelations based on documents from Edward Snowden, the Lavabit.com email subscriber. On June 9, Snowden revealed that he was the whistlblower who leaked documents to the Guardian and others. The first secret court order against Lavabit came the next day.
On or about June 10, the Justice Dept., on behalf of the FBI, went to federal court to compel Lavabit to provide information “relevant and material to an ongoing criminal investigation” involving someone with a single Lavabit email account. The FBI has not identified the subject of this investigation, but it is widely believed to be Snowden.
The United States District Court for the Eastern District of Virginia (the Fourth Circuit) granted the FBI’s request and issued the disclosure order against Lavabit that same day. A one-page, single-spaced attachment to the order listed the categories of information to be disclosed, including names, addresses, phone records, other subscriber identities, billing records, activity records, and “information about each communication” – in other words, everything about the email account “not including the contents of communications.” The order did not mention encryption keys, SSL keys, or the like. These are closely guarded secrets in a security business like Lavabit.
The U.S. Magistrate Judge who signed the initial order gave Lavabit 10 days to comply. He also sealed the court records from public view and further ordered that Lavabit “shall not disclose the existence of the application of the United States, or the existence of this order” to anyone except “an attorney for Lavabit.” In other words, Levison was subject to a gag order before he ever found out the FBI was definitely coming after him.
In the meantime, on June 14, the Justice Dept. filed a sealed criminal complaint against Snowden, who was then in Hong Kong. The government accused him of three offenses – theft of government property and two forms of “unauthorized communication” the Espionage Act of 1917. The criminal complaint, which was made public a week later, gave the government 60 days to file a formal indictment.
Getting unsatisfying compliance, the FBI decided to raise the stakes
According to a later Justice Dept. filing: “Mr. Levison received that order on June 11, 2013. Mr. Levison responded by mail, which was not received by the government until June 27, 2013. Mr. Levison provided very little of the information sought….” [emphasis added]
On June 28, the day after getting Levison’s belated response to the June 10 order, the Justice Dept. went back to the Fourth Circuit Court in Alexandria seeking an order “authorizing the installation and use of a pen register/trap device on an electronic mail account” – an FBI wiretap on email. Levison had no notice of the government motion and no opportunity to contest it. A new judge on the case, Magistrate Judge Theresa Buchanan, promptly ordered the wiretap installed on the basis that the government “has certified that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation….” Like the first order, this order did not mention encryption keys, SSL keys, or the like.
FBI special agents met with Levison in Dallas the same day to discuss the new order, which Levison had not yet received, as well as a prior summons to appear before a grand jury. The agents presumably explained to Levison that the court had issued a secret order based on a secret motion, itself based on secret evidence (or none at all) and that Levison was not only compelled to comply but was also still under court order to keep the whole secret process a secret, this time with no exception even for his attorney.
According to a later government filing, “Mr. Levison told the agents that he would not comply with the pen register order and wanted to speak to an attorney. It was unclear whether Mr. Levison would not comply with the order because it was technically not feasible or difficult or was not consistent with his business practice of providing secure, encrypted email service for his customers.”
As Levison months later explained to reporters about Lavabit: “We’re wholly focused on secure email. Without it, we have no business.” In Levison’s view, breaking Lavabit’s security without the right to tell his customers would have been to commit commercial fraud.
Judge Buchanan keeps the pressure on Levison and Lavabit
Following this meeting, the Justice Dept. immediately went before Judge Buchanan seeking an order to compel Lavabit to comply with the other Magistrate’s earlier order and install the FBI wiretap and to “furnish agents from the Federal Bureau of Investigation, forthwith, all information, facilities, and technical assistance necessary to accomplish the installation and use of the pen/trap device…” as ordered pursuant to federal law [U.S. Code, Title 18, sec. 3123].
Judge Buchanan immediately granted the “Order Compelling Compliance Forthwith,” based in part on her findings that “Lavabit informed the Federral Bureau of Investigation that the user of the account had enabled Lavabit’s encryption services and thus the pen/trap device would not collect the relevant information” and that “Lavabit informed the FBI that it had the technological capability to obtain the information but did not want to ‘defeat [its] own system’…”
Judge Buchanan ordered Lavabit to provide “unencrypted data pursuant to the Order.” Noting that failure to comply “forthwith” would subject Lavabit to “any penalty within the power of the court,” Judge Buchanan added in her own handwriting, “including the possibility of criminal contempt of court.” This order was issued under seal.
Previously, Levison faced the possibility of being fined for civil contempt if he failed to comply. Now he also faced going to jail. And the court’s most recent orders, in their plain language, prevented Levison from discussing his situation with anyone, not even an attorney.
According to the FBI, agents “made numerous attempts, without success, to speak and meet directly with Mr. Levison” during the next ten days. On July 9, the Justice Dept. returned to the Fourth Circuit court seeking an order for Lavabit to show cause why it “has failed to comply with the orders entered June 29” by Magistrate Buchanan, and why Lavabit should not be held in contempt of court for its failure to comply.
Judge Hilton decides a hearing with the parties present might help
Judge Claude Hilton issued the show cause order the same day, including a summons for Lavabit to appear at a hearing a week later. Judge Hilton is a secrecy case veteran, having served on the secretive FISA (Foreign Intelligence Surveillance Act) court from 2000 to 2007. The Judge continued to keep the Lavabit case under seal, but reinstated Lavabit’s exception to the gag rule when consulting with an attorney.
The next day, Levison went to the FBI field office in Dallas for a meeting/conference call that included prosecutors and FBI agents in Washington and his attorney in San Francisco, convened “to discuss Mr. Levison’s questions and concerns… [that] focused primarily on how the pen register device would be installed on the Lavabit LLC system, what data would be captured by the device, what data would be viewed and preserved by the government… [and] whether Mr. Levison would be able to provide ‘keys’ for encrypted information.”
The parties did not reach an agreement at the meeting and the next day, July 11, Levison’s attorney informed the FBI that she no longer represented Levison or Lavabit. The same day, Levison “indicated that he would not come to court [for the July 16 show cause hearing] unless the government paid for his travel,” according to a government filing.
Rather than engage in a dispute over travel expenses, the FBI served Levison with a subpoena to appear before a Fourth Circuit grand jury, also on July 16. The government is responsible for the travel arrangements of grand jury witnesses, and the FBI so advised Levison by email. The grand jury subpoena left little wriggle room in its effort to force Lavabit to surrender the encryption keys that were essential to its business:
“In addition to your personal appearance, you are directed to bring to the grand jury the public and private encryption keys used by lavabit.com in any SSL (Secure Socket Layer) or TLS (Transport Security Layer) sessions, including HTTPS sessions with clients using lavabit.com website and encrypted SMTP communications (or Internet communications using other protocols) with mail servers;
“Any other information necessary to accomplish the installation and use of the pen/trap device ordered by Judge Buchanan on June 28….”
“I don’t trust you, but you should trust me” and vice-versa
Levison responded on July 13 with an email to the U.S. Attorney’s office, offering an alternative to the FBI-operated wiretap. Levison proposed that he would collect the court-designated data himself. While he didn’t state it in the email, this would address one of Levison’s primary concerns, that there was no effective oversight to prevent the FBI from gathering more data than the court had allowed. Levison proposed to design and implement the solution, gather the data manually, and provide it to the FBI at the end of the 60-day court order – for a price of $2,000. For another $1,500, he offered to provide data “more frequently,” which would require implementing an automated system.
The U.S. Attorney chose not to explore the offer. In a brusque and internally contradictory reply email the same day, an assistant U.S. Attorney explained “that the proposal was inadequate because, among other things, it did not provide for real-time transmission of results, and it was not clear that Mr. Levison’s request for money constituted the ‘reasonable expenses’ authorized by the statute.” The government later admitted to the court that it was “unclear” as to precise details of the proposal. The clear implication of Levison’s proposal is a willingness to provide real-time transmission for reasonable compensation. But that would leave Levison in control. The government didn’t consider that a useful compromise.
On July 15, Levison flew to Washington for his show cause hearing at 10 the next morning, although he thought it was set for 10:30 and arrived late. He was appearing pro se, representing himself without an attorney.
Even a federal court hearing can be a comedy of errors
The government goal for the July 16 hearing remained unchanged: “Lavabit LLC may comply with the pen register order by simply allowing the FBI to install the pen register devise and provide the FBI with the encryption keys.” Lacking compliance, the government asked the court to impose a civil contempt sanction of $1,000 a day until Lavabit complied.
The government also requested a search warrant for the encryption keys. Judge Hilton granted the search warrant before the hearing began.
As it turned out, the 20-minute hearing resulted in no change in the legal standing of the parties, but did produce a transcript with moments of unintentional hilarity.
Present in the courtroom were Judge Hilton and the court staff. U.S. Attorney James Trump represented the government, along with three other lawyers and an FBI agent. Levison was alone.
The U.S. Attorney wanted to know if Levison was going to comply with the wiretap order, but Judge Hilton wouldn’t ask and Levison wouldn’t say. Or rather, Levison said he had always been ready and willing to comply with installation of the wiretap, but he was reluctant to give up the encryption codes, which would give the FBI access to all 400,000 of his subscribers even though the court order named only one. “There was never an explicit demand that I turn over those keys,” Levison said.
The U.S. Attorney argued that Judge Buchanan had effectively if not specifically ordered Levison to turn over the encryption keys. Judge Hilton wasn’t touching that: “I’m not sure I ought to be enforcing Judge Buchanan’s order.” Judge Hilton said that his order was to install the wiretap and Levison had said he’d do that, so – “You’re trying to get me to deal with a contempt before there’s any contempt, and I have a problem with that.”
Levison moved to unseal all but the sensitive information in the proceedings. Judge Holton denied the motion, based on the underlying criminal investigation. Levison asked the judge to order “some sort of external audit to ensure that your oders are followed to the letter” as to FBI data collection. The judge refused. Levison moved to continue the hearing to allow him to retain counsel. Judge Hilton granted the continuance.
Levison and Lavabit get legal representation from a Virginia firm
Levison’s new attorney is Jesse Binnall of Bronley & Binnall PLLC in Fairfax, Virginia. Binnall, 34, was a communication major at George Mason University and graduated from the Law School there in 2009. Binnall and Levison would later be among the first guests on the New Ron Paul Channel in mid-August.
On July 25, Binnall filed under seal a “Motion to quash” the outstanding grand jury subpoena and the search warrant against Lavabit. The motion requested “that this Court direct that Lavabit does not have to produce its Master Key. Alternatively, Lavabit and Mr. Levinson request that they be given an opportunity to revoke the. current encryption key and reissue a new encryption key at the Government’s expense. Lastly, Lavabit and Mr. Levinson request that, if they are required to produce the Master Key, that they be reimbursed for its costs which were directly incurred in producing the Master Key….”
In support of his motion, Binnall made a number of arguments against the actions of the government, which had not faced serious legal opposition up to this point.
Binnall pointed out that giving the government access to Lavabit’s Master Key is tantamount to giving the government access to all of Lavabit’s 400,000 users. That amounts to a general warrant that is unconstitutional, Binnall wrote, and:
“It is axiomatic that the Fourth Amendment prohibits general warrants [with Supreme Court cases cited]…. The Fourth Amendment’s particularity requirement is meant to ‘prevent the seizure of one thing under a warrant describing another’ [citation omitted]. This is precisely the concern with the Lavabit Subpoena and Warrant and, in this circumstance, the particularity requirement will not protect Lavabit. By turning over the Master Key, the Government will have the ability to search each and every ‘place,’ ‘person [and] thing’ on Lavabit’s network…. Additionally, the Government has no probable cause to gain access to the other users accounts.”
The government seemed unconcerned about Levison’s business survival
Bindall also argued that the court should quash the subpoena and search warrant as creating an “undue burden” on Lavabit as defined by law [U.S. Code Title 18, sec. 2703]:
“Not only has Lavabit expended a great deal of time and money in attempting to cooperate with the Government thus far, but, Lavabit will pay the ultimate price –the loss of its customers’ trust and business – should the Court require that the Master Key be turned over. Lavabit’s business, which is founded on the preservation of electronic privacy, could be destroyed if it is required to produce its Master Key.”
Also on July 25, Binnall filed a motion to unseal court records and to lift the gag order on his client, since the “gag order infringes upon freedom of speech under the First Amendment, and should he subjected to constitutional case law. “
Unsurprisingly, the U.S. Attorney filed a motion in opposition.
At the motion hearing on August 1, Judge Hilton engaged in lengthy colloquy with attorney Binnall. Before the 25-minute hearing was half over, the judge had denied both motions and the U.S. Attorney had said little more than “Good morning.” Judge Hilton gave Levison and Lavabit until 5 p.m. Dallas time on August 2 to comply.
Levison’s compliance took an unexpected form
The next day in Dallas, at about 1:30 p.m., Levison provided information that purported to be full compliance with the court’s orders. Whether it was actual compliance remains uncertain. The government was not happy and engaged with attorney Binnall to achieve satisfactory compliance, without success. On August 5 the government filed a motion for sanctions against Levison, calling his apparent compliance “unworkable” and describing it as follows:
“Mr. Levison gave the FBI a printout of what he represented to be the encryption keys needed to operate the pen register. This printout, in what appears to be 4-point type, consists of 11 pages of largely illegible characters. See Attachment A. (The attachment was created by scanning the document provided by Mr. Levison; the original document was described by the Dal!as FBI agents as slightly clearer than the scanned copy but nevertheless illegible.) Moreover, each of the five encryption keys contains 512 individual characters — or a total of 2560 characters. To make use of these keys, the FBI would have to manually input all 2560 characters, and one incorrect keystroke in this laborious process would render the FBI collection system incapable of collecting decrypted data.”
When this compliance effort became public two months later, TechCrunch called it “an epic troll.” At the time, the government was not amused and called for the court to sanction Levison $5,000 a day, beginning at noon August 5. The court promptly granted the motion, while reminding the parties that all aspects of the matter remained under seal. Known only to the participants and some court employees, the case was still unknown to the public.
Levison makes a tantalizing public announcement
That secrecy ended on August 8, when Ladar Levison shut down Lavabit, posting a short notice on the Lavabit.com website, together with a link to the Lavabit Legal Defense Fund. As Levison explained:
“I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit. After significant soul searching, I have decided to suspend operations. I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what’s going on – the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests.
“What’s going to happen now? We’ve already started preparing the paperwork needed to continue to fight for the Constitution in the Fourth Circuit Court of Appeals. A favorable decision would allow me resurrect Lavabit as an American company.
“This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States.”
Also on August 8, Levison fully complied with the Fourth Circuit courts orders, turning over the encryption keys to a now defunct service. He had incurred 2 days of sanctions – owing the government $10,000 – which remains pending.
The next day, Silent Circle, a global encrypted communications service, stayed in business but preemptively wiped out its email service (about 5 per cent of its customers) in anticipation of a government request that the company wouldn’t want to have to obey. “Meanwhile, Silent Circle is working on replacing its defunct e-mail service with a system that doesn’t rely on traditional e-mail protocols and keeps no messages or metadata within the company’s grasp. It is based on a protocol often used for instant messages and other applications. [CEO Mike] Janke says the goal is for this to not be e-mail, but ‘for all intents and purposes it looks, feels, and acts like e-mail,’” according to MIT Technology Review.
Lavabit’s closing drew some news coverage over the next week, but any story was hampered by the gag order that severely limited what Levison and Binnall could safely say. As Levison told Forbes the day after shutting down Lavabit:
“This is about protecting all of our users, not just one in particular. It’s not my place to decide whether an investigation is just, but the government has the legal authority to force you to do things you’re uncomfortable with….The fact that I can’t talk about this is as big a problem as what they asked me to do…. The methods being used to conduct those investigations should not be secret.”
The FBI and the Justice Dept. Have not commented publicly about the Lavabit case beyond their court filings.
Being secret, federal court appeal gets no news coverage
On August 15, Lavabit attorney Binnall filed notice – under seal – that he was appealing the federal district court’s rulings of August 1 and August 5 to the United States Court of Appeals for the Fourth Circuit. In other words, the government can not only keep the public ignorant of what it’s doing, it can also prevent the public from knowing that anyone objects to the government’s actions as unconstitutional.
In the Lavabit case, at least, this changed abruptly on October 2, when Judge Claude Hilton ordered a censored version of 23 documents (162 pages) made public. The redactions in these documents appear, from context, to be intended mostly to conceal details of the criminal investigation into Snowden or some other lavabit.com user. Since the unsealing of the court documents, news coverage had expansed, and Levison and Binnall have appeared in public across the country to argue their cause. As Levison put it on his Facebook page October 2:
“If the Obama administration feels compelled to continue violating the privacy rights of the masses just so they can conduct surveillance on the few then he should at least ask Congress for laws providing that authority instead of using the courts to force businesses into secretly becoming complicit in crimes against the American people.”
In 2005, a U.S. Senator addressed a similar concern, when Congress was about to pass a law creating the “national security letter,” a secret government process much more intense and unforgiving than what Levison went through last summer:
“This is legislation that puts our own Justice Department above the law. When national security letters are issued, they allow federal agents to conduct any search on any American, no matter how extensive, how wide-ranging, without ever going before a judge to prove that the search is necessary. All that is needed is a sign-off from a local FBI agent. That’s it.
“Once a business or a person receives notification that they will be searched, they are prohibited from telling anyone about it, and they’re even prohibited from challenging this automatic gag order in court. Even though judges have already found that similar restrictions violate the First Amendment, this conference report disregards the case law and the right to challenge the gag order.
“If you do decide to consult an attorney for legal advice, hold on. You will have to tell the FBI that you’ve done so. Think about that. You want to talk to a lawyer about whether or not your actions are going to be causing you to get into trouble. You’ve got to tell the FBI that you’re consulting a lawyer. This is unheard of. There is no such requirement in any other area of the law. I see no reason why it’s justified here.
“And if someone wants to know why their own government has decided to go on a fishing expedition through every personal record or private document, through the library books that you read, the phone calls that you’ve made, the emails that you’ve sent, this legislation gives people no rights to appeal the need for such a search in a court of law. No judge will hear your plea; no jury will hear your case. This is just plain wrong.”
The question is: how much of a police state do we have already?
That Senator was concerned eight years ago, and that Senator was Barack Obama. Today, national security letters are part of the law of the land, the Obama administration uses them, and if you get one, talking about it is against the law. In that context, since Ladar Levison apparently did not get a national security letter, he was lucky. The country, not so much.
On October 10, in the United States Court of Appeals for the Fourth Circuit, Lavabit filed the opening brief of its appeal of the lower court’s orders. The United States has until November 4 to file its answer. This will take awhile, it will take effort to follow, but it matters.
President Barack Obama has chosen a former Pentagon attorney who defended the extrajudicial killing of American citizens to man the helm of the United States Department of Homeland Security and replace outgoing Secretary Janet Napolitano.
Jeh Johnson, a general counsel for the Pentagon during the president’s first term in office, was named by Mr. Obama as his choice for new DHS secretary during a Friday afternoon press conference.
“The president is selecting Johnson because he is one the most highly qualified and respected national security leaders,” a senior administration official told the Washington Post on Thursday while speaking condition of anonymity. “During his tenure at the Department of Defense, he was known for his sound judgment and counsel.”
Johnson, 56, served as a special counsel during John Kerry’s unsuccessful 2004 run for the presidency before assisting with Obama’s campaign four years later. During his first week in office, Obama nominated Johnson as DoD general counsel and he was confirmed by the Senate in Feb. 2009.
Up until his resignation from Defense Department attorney in December 2012, Johnson advised the largest military in the world, including during historic matters regarding the repeal of the Pentagon’s ban on openly gay troops and the reform of military commissions.
That same span in the Pentagon was also marred by Obama administration decisions that opponents of the president’s latest pick have been quick to pounce on.
While working as one of the top attorneys for the US military, Johnson authorized the execution of Anwar al-Awlaki, an American citizen and suspected senior figure in Al-Qaeda who was killed by a drone strike in Yemen in late 2011. That slaying was carried out by an operation conducted by the Pentagon in cooperation with the Central Intelligence Agency and has drawn immense criticism directed at the White House and the president’s extrajudicial killing of an American citizen.
The New York Times reported shortly after that Johnson told attendees at a speech at Yale Law School that “Belligerents who also happen to be US citizens do not enjoy immunity where non-citizen belligerents are valid military objectives.”
The president postponed offering full justification for the attack until this past May when he said, “I do not believe it would be constitutional for the government to target and kill any US citizen — with a drone, or with a shotgun — without due process . . . But when a US citizen goes abroad to wage war against America and is actively plotting to kill US citizens, and when neither the United States, nor our partners are in a position to capture him before he carries out a plot, his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a SWAT team.”
Johnson also served as general counsel during the height of the WikiLeaks scandal that involved the unauthorized disclosure of hundreds of thousands of sensitive documents. In a letter to the whistleblower organization published in August 2010, Johnson blamed WikiLeaks for their “illegal and irresponsible actions,” and said that the leaking of classified materials aided America’s enemy in “their own terrorist aims.” Earlier this year, a military judge said that Chelsea Manning, the Army analyst who admitted to giving those files to WikiLeaks, did not aid Al-Qaeda by supplying the website with documents.
Johnson said in the same letter that the Pentagon “demands that NOTHING further be released by WikiLeaks, that ALL of the US Government classified documents that WikiLeaks has obtained be returned immediately and that WikiLeaks remove and destroy all of these records from its databases.”
Mr. Obama officially nominated Johnson at a 2 p.m. meeting, paving the way for the Senate to formally decide if they will appoint the president’s pick.
“If confirmed by the Senate, I promise all of my energy, focus and ability towards the task of safeguarding our nation’s national and homeland security,” Johnson said after being introduced by the president.
In 2011 I sat on a panel discussion at King’s Books in Tacoma, Washington, on the subject of the effect of the wars in Iraq and Afghanistan on soldiers and their families. My prepared remarks were a discussion of the impact of repeated deployments on the families I saw on the labor and delivery floor where I worked, but during the discussion after I was startled to hear a forceful call for the re-reinstatement of the draft from one of my fellow panelists- a call that met with widespread cheers from the audience.
Since then I’ve seen many, many more calls for a draft from ostensibly anti-interventionist voices, most recently in Andrew Bacevich’s latest book. The underlying premise of these calls, sometimes made explicit and sometimes not, is that a draft would stop America’s lust for war and foreign interventions because it would force the burdens of war to be spread more equally. The draft has been damned, and rightly so, for being a form of slavery and at times a particularly murderous one at that, but even those who might get the vapors at the idea of seeing American solders as slaves cannot deny the simple historical fact that the draft has never, ever- not once- stopped or slowed or in any way inhibited the conduct of a war.
The first American war fought with conscription was the first American war, the Revolution, and it was fought all the way to its conclusion. The next war fought with conscripts, the Civil War, claimed more American lives than any other and while the draft helped provoke some riots, most notably a draft protest turned anti-black pogrom in New York City, that war too was fought all the way to the bloody finish. The First and Second World Wars as well were fought largely with draftees and fought to the bitter end, in the latter case with the immolation of two major cities by a hideous new weapon delivered by aircraft in part manned by draftees.
Korea and especially Vietnam form what the pro-draft lobby thinks of as the lynchpin of their case. The conventional narrative of resistance to the war in Vietnam is of Middle America tiring of seeing its sons’ lives destroyed by Westmoreland’s war of attrition and rising up, of LBJ allegedly saying “If I’ve lost Cronkite, I’ve lost Middle America.” Supposedly the marches in the streets somehow persuaded the American government to leave Vietnam. What this narrative leaves out is what actually stopped the American war in Vietnam–the Vietnamese.
The American Revolution, the Civil War, the World Wars- for the American government, these were all victorious wars. Victory is very popular; victorious wars, however obviously aggressive or absurdly unjust, rarely generate any significant resistance. But in Vietnam, America was not winning. America was losing, and badly. Middle America was in the streets against Vietnam, it is true, but they weren’t there because Johnny was coming home in a box. They were there because Johnny was losing.
The pro-draft narrative of domestic resistance to the Vietnam War is at heart a racist, imperialist narrative, denying the Vietnamese their place as actors in their own history, giving pride of place to white Americans holding signs in the street over Vietnamese peasants giving their lives to drive out yet another imperialist power coming to lord over their country. What stopped the Vietnam War was not a college kid with a sign; it was a rice farmer with an AK-47. Americans only get upset about draftees dying when they are dying in a losing war, and credit for resistance to such wars goes not to Americans at home but to the victims of the American government abroad.
The idea that if only everyone had to share the burden, war would be less popular seems intuitive and appealing, but history reveals it to be deluded. Victory makes wars popular, and defeat makes them unpopular. To try to stop the war machine from inside the imperial center, we must do whatever we can to gum up its works, be it counter-recruiting, supporting GI resistance, spreading awareness about the costs of militarism, tax resistance, or anything else that might help. And while we might debate their ultimate aims as Communists in Vietnam or Islamic radicals in Iraq, we must always remember that the people who do the most to stop the war machine are the people who take up arms against it.
Jonathan Carp is a member of Iraq Veterans Against the War and a nurse. He lives in Tacoma, WA.
On September 30th, as he was about to fly from Brazil to Denver, Colorado, where he had been invited to attend and address a German Studies conference, the German novelist Ilija Trojanow (pronounced “llya Troyanov”) was informed that he would not be allowed to board the flight on which he was booked.
He was told, after some 45 minutes of waiting while his passport and various computer screens were examined, that his case was “special” and that no further explanation was available. To this date, none has been offered.
But the explanation was and is obvious to anyone aware of Mr. Trojanow’s recent political history, in the context of the Obama administration’s increasingly jaundiced and vehement campaign against whistleblowers and critics of its surveillance-state apparatus. Despite the President’s absurdly facile talk of “welcoming the debate” on NSA data-gobbling and Orwellian tactics, the war on internet freedom is reaching a new high point. The US government is determined to achieve full access to all digital data, and has no intention of compromising with its critics, of which internationally known intellectuals appear to represent a particularly worrisome species.
Asked how the scholars at the conference in Denver had reacted to the government’s action in blocking his entry, Trojanow said that they were “…enormously angry. A great deal of prepared work was carried out in vain. Now they want to write an open letter. It is, obviously, ironic that this should happen in connection with – of all things — an event that was intended to bring the USA and Germany together. The theme of the seminar was ‘transnationalism’”.
Less than two weeks earlier, on September 18th, an open letter to German Chancellor Angela Merkel accompanied by the signatures of 67,000 supporters — including a number of prominent literary and legal figures – had been delivered to the Chancellery in Berlin by Trojanow’s friend and fellow novelist Juli Zeh, its initiator. One of the first signatures was Trojanow’s. The two are co-authors of the book “Angriff auf die Freiheit” (“Freedom Under Attack”), published in 2010 by DTV Deutscher Taschenbuch, the subtitle of which translates to “Security Madness, Surveillance State and the Dismantling of Civil Rights.” Three years before the Snowden revelations, Mr. Trojanow, a native Bulgarian whose family fled political persecution there in the dark ages of Eastern Bloc state repression, had become a prominent critic of policies in the West that had an all-too-familiar smell. The Snowden documents and emerging NSA scandal now brought new urgency to this work.
The German Chancellor and leader of the Christian Democratic Union, who as opposition leader during the Social Democratic/Green Party coalition government,and later as Chancellor, had given George W. Bush uncritical support for his Iraq policies among many others, was staying true to form in the face of Snowden’s assertion that Germany’s intelligence services were deeply involved in the surveillance scandal. After weeks of evasion and “salami” tactics by which admissions regarding the Snowden charges were made piecemeal once they could no longer be denied; after a highly-publicized trip to Washington by her Interior Minister (analogous to Minister of Homeland Security in the USA), who was photographed at the table with top American intelligence officials, and returned to assure Germans that the US took the issue very seriously and had guaranteed him that no German laws were being broken; after an appearance by Merkel’s Minister of the Chancellery before a special investigative committee to which he had been summoned by an outraged opposition in the German Bundestag (an appearance generally assessed to have been characterized by flippant and insubstantial responses to penetrating questions regarding German complicity alleged by Snowden); after a press conference in which the Chancellor blithely declared that she “preferred to wait and see” what the truth about the allegations might be; and after declaring in a vaguely irritated tone in a TV debate with her Social Democratic challenger in the eminent election – on almost the same day that the letter and petition were presented in Berlin — that she “had no reason to mistrust the NSA,” Merkel was comfortably reelected on September 22nd despite the fact that more than two-thirds of Germans had been polled as being unsatisfied with the government’s response to the scandal. While the conservatives in Berlin and the Obama administration may have breathed a sigh of relief, someone in Washington was apparently not yet ready to forget about Trojanow’s work in the actions which had produced the following document (translated from the original German for Mr. Trojanow by myself):
Honored Madame Chancellor,
Since Edward Snowden made public the existence of the PRISM program, the media have turned their attention to the biggest wiretapping scandal in modern German history. We citizens have, through published reports, become aware that foreign intelligence services — even in the absence of any concrete grounds for suspicion – skim and record our telephone and electronic communications. Through the storage and evaluation of metadata, our contacts, friendships and relationships are apprehended. Our political positions, our “movement profiles” and, in fact, even our daily moods and emotional status are transparent to the security authorities. The “transparent man” has thus become reality.
We have no defenses. There is no means of redress or airing of grievances, no opportunity for access to the files. While our private lives are made transparent, the secret services assert a right to a maximum of opacity regarding their methods. In other words: we are experiencing an historic attack upon our democratic rule of law, namely, the reversal of the principle of a “presumption of innocence” into a millionfold general suspicion.
Madame Chancellor, you stated in your summer press conference that Germany is “not a surveillance state.” Since the Snowden revelations, however, we have no choice but to say: unfortunately, it is. In the same connection you summarized your approach to the investigation of the PRISM affair with the apt phrase: “I prefer to wait and see what happens.”
But we do not wish to wait. It is increasingly difficult to avoid the impression that this behavior by the American and British intelligence services is tacitly accepted by the German government. For that reason we ask you: is it politically desirable that the NSA conducts surveillance of German citizens in a manner that is forbidden to the German authorities by the constitution and the German Federal Constitutional (Supreme) Court? Do the German intelligence services profit from information received from the US authorities, and is that the reason for your hesitant reaction? How can it be justified that the BND (“Bundesnachrichtendienst”, federal intelligence authority) and the Verfassungsschutz (“Constitutional Protection”, federal domestic intelligence agency) deploy the NSA spy-program XKeyScore, for which there is no legal basis, in the surveillance of search engines? Is the German Federal Government in the process of taking a detour around the rule of law, instead of defending it?
We call upon you to tell the people of this nation the full truth about the electronic spying. And we want to know what the federal government proposes to do against it. You are charged by the constitution with protecting Germany’s citizens from harm. Madame Chancellor, what is your strategy?
/ Juli Zeh / Ilija Trojanow / Carolin Emcke / Friedrich von Borries /Moritz Rinke / Eva Menasse / Tanja Dückers / Norbert Niemann / Sherko Fatah / Angelina Maccarone / Michael Kumpfmüller / Tilman Spengler / Steffen Kopetzky / Sten Nadolny / Markus Orths / Sasa Stanisic / Micha Brumlik / Josef Haslinger / Simon Urban / Kristof Magnusson / Andres Veiel / Feridun Zaimoglu / Ingo Schulze / Falk Richter / Hilal Sezgin / Georg Oswald
(Translation from the German original: Gregory Barrett)
Trojanow was awarded the 2006 Prize of the Leipzig Book Fair for his adventure novel “Der Weltensammler” (“The Collector of Worlds”). He delivered the laudatory speech for the Nobel Prizewinner Herta Müller at the ceremony marking her acceptance of the Franz Werfel Human Rights Prize. In Salvador da Bahia, Brazil, he had been a guest writer at the invitation of the Goethe Institute. On October 5th he was to speak at the conference of the German Studies Association in Denver about his most recent novel “EisTau” (“Ice Thaw”). Ms. Zeh is best known to the German-speaking public as the author of several novels including “Adler und Engel” (“Eagles and Angels”), which has been translated into 31 languages, and “Nullzeit” (“Zero Hour” or “Out of Time”), but also holds impressive law degrees and has worked at the United Nations. The forum afforded the two highly-respected intellectuals in various media, from the powerful news magazine “Der Spiegel,” to the national public radio network Deutschlandradio, to popular national television talk shows may well be making the Merkel government nervous about the possibility that the surveillance issue — which had appeared to be fading in the public consciousness as the Chancellor and her allies had hoped — could still catch fire with the help of the continued revelations being parceled out by Snowden, Glenn Greenwald and a growing network. Such coverage has given the German writers’ campaign a visibility seldom granted to the usual suspects on the German left.
Appeals to the German government for mediation and clarity following the US refusal to allow Mr. Trojanow’s entry into the land of the free have, predictably, been without success at this writing. The novelist himself immediately applied for a new US visa and is determined to elicit a clear statement about the grounds for the ban.
Meanwhile, Trojanow and Zeh are working on a new international appeal, with which they hope to generate broad-based resistance to the massive destruction of civil- and privacy rights worldwide represented by the NSA’s new technological might. There are links already in place to the London-based group “Index on Censorship” and many other groups including Amnesty International, Liberty, the Electronic Frontier Foundation and the Russian PEN Center. The German writer-activists hope to bring more Americans into their network as well. The signs may be auspicious, too, for legislative activity at the European level: in late September a 36-page report prepared for the European Union stated that “…Prism seems to have allowed an unprecedented scale and depth in intelligence gathering, which goes beyond counter-terrorism and beyond espionage activities carried out by liberal regimes in the past. This may lead towards an illegal form of total information awareness where data of millions of people are subject to collection and manipulation by the NSA.” It went on to point out that “…there are no privacy rights for non-Americans under Prism and related programmes” and that the US probably places “no limitations on exploiting or intruding a non-US person’s privacy.” However, those of us who have watched for many years as the European Parliament and EU Commission have taken one principled position after another against US policies, only to buckle later under pressure, are under no illusion that things will be much different this time. The stark contrast between the Merkel government’s initial protestations of concern over PRISM and other NSA programs for public consumption, and its subsequent low-to-no profile on the issue, demonstrates that below the surface, the European interest in maintaining its often obsequious posture as regards its mighty ally will once again trump other concerns in the absence of a public outcry. Ilija Trojanow and his partners, however, hope to keep the urgency of the issue alive in the international political and literary spheres.
“It is more than ironic that an author who for years has been speaking out about the dangers of surveillance and the secret state within the state should be denied entry into the ‘land of the brave and the free,’ ” writes Trojanow. “No more than a minor, individual case, to be sure: but it’s indicative of the consequences of a disastrous development and it reveals the naivety of the attitude of many citizens who comfort themselves with the mantra, ‘But it’s got nothing to do with me’. That might still be the case – however, the net is tightening. For these citizens the secret services are still just a rumor, but in the not-so-distant future the knock on the door will be very real indeed.”
Gregory Barrett is a translator and musician living in Germany.
A Libyan terror suspect kidnapped from Libya in a raid by US special forces on October 5 was transferred from the naval ship, where he was being detained and interrogated, into “law enforcement custody” over the weekend.
The Justice Department indicated in a press release that he was “brought directly to the Southern District of New York, where he has been under indictment for more than a decade.” He was expected to be brought before a judge on October 15.
Al-Liby is suspected of being involved in the bombings of US Embassies in Kenya and Tanzania in 1998.
Last week, a chief federal public defender, David E. Patton, according to the Los Angeles Times, had pressed a federal judge to order that he be “brought to court immediately,” as he was aboard a ship being interrogated by the High Value Detainee Interrogation Group, which is a special task force of personnel from the Pentagon, FBI, CIA and other agencies. He had not been read Miranda rights, which he and other terror suspects have a right to be read if they are being prosecuted under US law. But a federal judge would not issue such an order and would not appoint a defense lawyer to represent him either.
A more critical issue is that al-Liby, whose real name is Nazih Abdul-Hamed al-Ruqai, may not be the dangerous al Qaeda terrorist the United States government believes he happens to be.
American-British foreign correspondent Jamie Dettmer interviewed family members of al-Liby, who suggested just last month he had “talked with the Libyan attorney general and the head of intelligence to say he was keen to clear his name of the bombing accusations and was ready to face any Libyan judicial inquiry they deemed necessary. He was prepared for an American interrogation—in Libya. [Dettmer saw a copy of a letter from the attorney general’s office dated September 15, 2013, that confirmed his father’s discussions.]
Umm Abdul Rahman, al-Liby’s wife, explained to Dettmer that in the 1990s, at the same time as the bombings, they were living in Britain and “under tight surveillance, with their home being raided frequently and her husband’s computers seized.” Rahman was “sure that if British intelligence had any evidence, they would have acted and the British authorities would have agreed to an extradition request made by the Americans during their stint in the UK.” Al-Liby’s family essentially decided to flee Britain because the surveillance and harassment was no longer tolerable and were allowed to legally leave the country.
Although she admitted he had been affiliated with al Qaeda and was a member for a period, he left at some point in the mid-1990s to join the Libyan Islamic Fighting Group (LIFG), which was formed by Islamic dissidents to overthrow Muammar Gaddafi. She contended that allegations by the US government that he was now overseeing al Qaeda groups in North Africa were “untrue.” She showed Dettmer a copy of a document that showed he was trying to get back his job as a computer engineer for the Ministry of Oil. [Gaddafi convinced President George W. Bush’s administration that LIFG members were jihadists and a number were victims of rendition, detention and torture. They were transferred to Libya where they were abused.]
Dettmer’s story suggests that the rendition of al-Liby deprived him of a key due process he should have had in Libya. Al-Liby was obviously ready to offer up any information on his past and evidence of crimes could have been passed on to the US government. Rather than allow this to take place, he was abducted.
If the US had requested that he be extradited to face charges for his alleged role in the embassy bombings, he could have challenged the allegations in a court in Libya. He could have argued that if he was tried in the US he would not receive a fair trial and, if convicted, he would likely be held in a supermax prison and subjected to conditions of solitary confinement that were cruel and inhuman. He could have also argued that he might be deprived other due process rights, like a right to a lawyer.
This is what makes rendition a violation of international human rights law. The abduction of a person is clearly intended to bypass a process that he should have been afforded because President Barack Obama’s administration was unwilling to wait for the Libyan government to extradite him.
Libyan Prime Minister Ali Zidan, who was kidnapped and released by militants angry the US raid had occurred, has called the snatch and grab of al-Liby a “kidnapping.” But no clear proof exists yet that Zidan did not privately grant consent to US forces to conduct a raid and remove him from Libya.
Even if Zidan granted consent to the US government, that does not necessarily make it any more lawful. It would mean Zidan had agreed to deprive due process rights to al-Liby and allow him to be transported to a navy ship vessel, where he could not guarantee that al-Liby’s human rights would be protected.
Al-Liby may be suspected of bombing US embassies, and, if there is any evidence to support this serious allegation, he should have been able to defend himself in a court of law before being handed over to US custody.
As Jeremy Scahill has eloquently stated, “Our values are not defined by how we treat the rich and the powerful and the popular. It’s defined by how we treat the least of our people, how we treat the poorest. And it’s also how we treat the most reprehensible.”
Unfortunately for al-Liby, a process may have been set in motion that virtually guarantees he will be imprisoned for a lengthy period of time. He may not be responsible for the bombings but his past history with al Qaeda—even though Britain found no evidence of crimes—may discourage a judge from letting him return to Libya.
That the due process he will be given in the United States is likely to take place under a cloud of fear is why renditions of terrorist suspects should be opposed.
The US National Security Agency is collecting hundreds of millions of contact lists from personal email and instant messaging accounts around the world, according to a new report.
Many of the contacts belong to American citizens, The Washington Post reports, citing senior intelligence officials and documents provided by former NSA contractor Edward Snowden.
According to the report, the super spy agency intercepts millions of email address books every day from private accounts on Yahoo, Gmail, Facebook, and Hotmail that move through global data links. The agency also collects a half million buddy lists from live chat services and email accounts.
It is the latest revelation of the NSA’s practices to be disclosed by Snowden, who lives in Russia, where he has been granted temporary asylum. The leaker is wanted in the US for espionage charges.
NSA’s analysts of the collected data can search for hidden connections and map relationships within a much smaller universe of foreign intelligence targets, according to the report.
“The collection depends on secret arrangements with foreign telecommunications companies or allied intelligence services in control of facilities that direct traffic along the Internet’s main data routes,” it says.
Although the collection takes place overseas, the NSA sweeps in the contacts of many Americans too. The agency collects as many as 250 million contacts per year, many them US citizens.
The NSA’s collection of all US call records has already generated controversy in the country since the agency’s program was first revealed in June. NSA officials have defended bulk collection as an essential tool to counter terrorism.
Germany’s largest telecom provider, Deutsche Telekom, is looking to introduce a “national routing” service which would keep German internet traffic out of the hands of foreign spies.
The former state-owned communications giant outlined the plans at a secret meeting in the Economy Ministry, business weekly Wirtschaftswoche reported.
Currently, email data is exchanged between users worldwide via international Internet exchange points; physical structures through which Internet service providers (ISPs) exchange Internet traffic between their networks.
The company hopes to hammer out an agreement with other national Internet providers which would guarantee that “while being transported from the sender to the receiver in Germany… no single byte leaves Germany,” Thomas Kremer, a board member of Telekom’s data privacy, legal affairs and compliance, told the magazine.
To put the plan into effect, Deutsche Telekom must secure the support of all its competitors, including Telefonica and Vodafone.
While Vodafone and Telefonica are currently mulling the initiative, another competitor – Internet service provider QSC – has questioned the efficacy of the plan, saying it was not possible to determine with certainty whether data is being routed nationally or internationally.
“In a next step, this initiative could be expanded to the Schengen area,” the spokesman said, referring to the group of 26 European countries – excluding Britain – that have removed border controls for participating countries.
Deutsche Telekom first began leading the charge for to protect its users’ privacy from foreign intelligence agencies in August when they rolled out ‘Email Made in Germany’, an encrypted email service that only uses German servers to process and store all domestic email traffic.
The move followed revelations that the US National Security Agency (NSA) collects 500 million pieces of phone and email metadata from Germany each month — more than in any other EU country.
“Germans are deeply unsettled by the latest reports on the potential interception of communication data,” said Rene Obermann, head of Deutsche Telekom.
“Now, they can bank on the fact that their personal data online is as secure as it possibly can be.”
Experts do not believe the move will stop governments from getting their hands on information, although it might complicate efforts to do so.
“Of course the NSA could still break in if they wanted to, but the mass encryption of emails would make it harder and more expensive for them to do so,” Sandro Gaycken, a professor of cyber security at Berlin’s Free University, said when the idea was first proposed.
By Stephen Sniegoski | My Catbird Seat | June 12, 2010
The claim that Israel serves as a valuable ally for the United States is made by both pro-Zionists and much of the anti-war and anti-Zionist Left that is influenced by Noam Chomsky. As a result of the Gaza flotilla massacre, which has caused a world-wide uproar against Israel, the value of Israel to the United States is being publicly questioned in more mainstream foreign policy forums. … continue
This site is provided as a research and reference tool. Although we make every reasonable effort to ensure that the information and data provided at this site are useful, accurate, and current, we cannot guarantee that the information and data provided here will be error-free. By using this site, you assume all responsibility for and risk arising from your use of and reliance upon the contents of this site.
This site and the information available through it do not, and are not intended to constitute legal advice. Should you require legal advice, you should consult your own attorney.
Nothing within this site or linked to by this site constitutes investment advice or medical advice.
Materials accessible from or added to this site by third parties, such as comments posted, are strictly the responsibility of the third party who added such materials or made them accessible and we neither endorse nor undertake to control, monitor, edit or assume responsibility for any such third-party material.
The posting of stories, commentaries, reports, documents and links (embedded or otherwise) on this site does not in any way, shape or form, implied or otherwise, necessarily express or suggest endorsement or support of any of such posted material or parts therein.
The word “alleged” is deemed to occur before the word “fraud.” Since the rule of law still applies. To peasants, at least.
Fair Use
This site contains copyrighted material the use of which has not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of environmental, political, human rights, economic, democracy, scientific, and social justice issues, etc. We believe this constitutes a ‘fair use’ of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. For more info go to: http://www.law.cornell.edu/uscode/17/107.shtml. If you wish to use copyrighted material from this site for purposes of your own that go beyond ‘fair use’, you must obtain permission from the copyright owner.
DMCA Contact
This is information for anyone that wishes to challenge our “fair use” of copyrighted material.
If you are a legal copyright holder or a designated agent for such and you believe that content residing on or accessible through our website infringes a copyright and falls outside the boundaries of “Fair Use”, please send a notice of infringement by contacting atheonews@gmail.com.
We will respond and take necessary action immediately.
If notice is given of an alleged copyright violation we will act expeditiously to remove or disable access to the material(s) in question.
All 3rd party material posted on this website is copyright the respective owners / authors. Aletho News makes no claim of copyright on such material.
Tonight, the Keene city council could have made history as the first ever political designation to reject arms manufacturer LENCO and the federal government’s pushing of the BEARCAT police attack “tank“.
It was the Vietnamese Who Stopped the US War Machine
Aletho News
