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What President Obama’s Surveillance Speech Should Have Addressed

By Frank Pasquale · Concurring Opinions · January 21, 2014

In his recent speech on surveillance, President Obama treated the misuse of intelligence gathering as a relic of American history. It was something done in the bad old days of J. Edgar Hoover, and never countenanced by recent administrations. But the accumulation of menacing stories—from fusion centers to “joint terrorism task forces” to a New York “demographics unit” targeting Muslims—is impossible to ignore. The American Civil Liberties Union has now collected instances of police surveillance and obstruction of First Amendment‐protected activity in over half the states. From Alaska (where military intelligence spied on an anti-war group) to Florida (where Quakers and anti-globalization activists were put on watchlists), protesters have been considered threats, rather than citizens exercising core constitutional rights. Political dissent is a routine target for surveillance by the FBI.

Admittedly, I am unaware of the NSA itself engaging in politically driven spying on American citizens. Charles Krauthammer says there has not been a “single case” of abuse. But the NSA is only one part of the larger story of intelligence gathering in the US, which involves over 1,000 agencies and nearly 2,000 private companies. Moreover, we have little idea of exactly how information and requests flow between agencies. Consider the Orwellian practice of “parallel construction.” Reuters has reported that the NSA gave “tips” to the Special Operations Division (SOD) of the Drug Enforcement Administration, which also shared them with the Internal Revenue Service.

The legal status of such information sharing is murky at best: the national security data is not supposed to be used for law enforcement purposes. Apparently the SOD sidestepped these niceties by re-creating criminal investigations from scratch, fabricating alternative grounds for suspecting the targets. Thus the “parallel construction” of two realities for the law enforcers: one actual, secret record of how targets were selected, and another specially crafted for consumption by courts. Two senior Drug Enforcement Administration officials defended the program and called it legal, but did not disclose their reasoning. At present, the practice looks like little more than intelligence laundering. Five senators asked the Department of Justice to assess the legality of “parallel construction;” it has yet to respond.

I have little doubt that the DEA used parallel construction in cases involving some pretty nasty characters. It must be tempting to apply “war on terror” tactics to the “war on drugs.” Nevertheless, there are serious legal and ethical concerns here. One of the American revolutionaries’ chief complaints against the British Crown was the indiscriminate use of “general warrants,” which allowed authorities to search the homes of anyone without particularized suspicion they had committed a crime. Thus the 4th Amendment to the US Constitution decrees that “no Warrants shall issue, but upon probable cause.” Law enforcers aren’t supposed to set up “dragnet surveillance” of every communication, or use whatever data stores are compiled by the National Security Agency, unless there is a true security threat.

Between 1956 and 1971, the FBI’s COINTELPRO program engaged in domestic covert action designed to disrupt groups engaged in the civil rights, antiwar, and communist movements. As Lawrence Rosenthal has observed, “History reflects a serious risk of abuse in investigations based on the protected speech of the targets,” and politicians at the time responded. Reviewing intelligence agency abuses from that time period, the Church Committee issued a series of damning reports in 1975-76, leading to some basic reforms. If a new Church Committee were convened, it would have to cover much of the same ground. Moreover, it would need to put in place real safeguards against politicized (or laundered) domestic intelligence gathering. Those are presently lacking. I have yet to find a case where the parties involved in any of the intelligence politicization (or laundering) were seriously punished. Nor have I seen evidence that the victims of such incidents have received just compensation for the unwarranted intrusion on their affairs.

Before we can develop better surveillance policy, we need something like a Truth and Reconciliation Commission to review (and rebuke) the politicization of intelligence gathering post-9/11. Too many privacy activists have been unwilling to admit the persistence of catastrophic threats that may only be detected by spies. But the US government has been even less moored to reality, unwilling to admit that a runaway surveillance state has engaged in precisely the types of activities that the Bill of Rights is designed to prevent. To have a debate about the proper balance between liberty and security, we need to confront the many cases where misguided intelligence personnel spied on activists with neither goal in mind.

Frank Pasquale is Professor of Law at the University of Maryland. His research agenda focuses on challenges posed to information law by rapidly changing technology, particularly in the health care, internet, and finance industries. Frank accepts comments via email, at pasqresearch@gmail.com.

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January 23, 2014 Posted by | Civil Liberties, Corruption, Full Spectrum Dominance, Progressive Hypocrite | , , , , , | Leave a comment

Dianne Feinstein: NSA Would Never Abuse Its Powers Because It’s ‘Professional’

By Mike Masnick | Techdirt | January 21, 2014

Senator Dianne Feinstein, as we’ve noted, seems to have this weird blindness to even the very idea that the NSA might abuse its powers, despite a long history of it doing exactly that. The history of the US intelligence community is littered like a junk yard with examples of massive abuses of power by intelligence folks. And yet, Feinstein seems shocked at the idea that anyone questions the NSA’s ability to abuse the system. Why? Because the NSA is “professional.” Appearing on Meet the Press this weekend, Feinstein just kept repeating how “professional” the NSA is as if that was some sort of talisman that wards off any potential of abuse. First, host David Gregory pointed to reporter Bart Gellman’s claim that President Obama’s NSA reforms will allow for the expansion of the NSA’s collecting personal data on “billions of people around the world, Americans and foreign citizens alike” and told Feinstein that didn’t seem like it was protecting people’s privacy. And Feinstein went straight to her “but they’re professionals!” argument:

Well, I would disagree with Mr. Gellman. I think that what the president has said is that he wanted to maintain the capability of the program. That, as Chairman Rogers said, it has not been abused or misused. And it is carried out by very strictly vetted and professional people.

Of course it has been “abused” and “misused,” but let’s not let details get in the way.

Later in the interview, Gregory asks Feinstein to comment on Rep. Mike Roger’s totally unsubstantiated (and contradicted by nearly everyone else in the know) claims that Ed Snowden was working for Russian intelligence, and Feinstein bizarrely returns to talking about just how “professional” NSA staffers are.

DAVID GREGORY:
And do you agree with Chairman Rogers that he may have had help from the Russians?

SENATOR DIANNE FEINSTEIN:
He may well have. We don’t know at this stage. But I think to glorify this act is really to set sort of a new level of dishonor. And this goes to where this metadata goes. Because the N.S.A. are professionals. They are limited in number to 22 who have access to the data. Two of them are supervisors. They are vetted. They are carefully supervised. The data goes anywhere else. How do you provide that level of supervision?

Of course, Ed Snowden was also “vetted” and “professional.” And Feinstein seems to think he may have been working for the Russians, which seems to suggest that any of the other “vetted” and “professional” NSA employees might be abusing their position as well. And, I mean, I’m sure the NSA analysts who listened in on phone sex calls between Americans and then shared them around the office were also “vetted” and “professional.”

In fact, I’d think pretty much the entirety of human history concerning intelligence efforts suggests that abuse is almost always carried out by people who are “vetted” and “professional.” And that’s exactly what has most people so concerned about these programs and what the NSA is doing. No matter how well-meaning, well-trained or well-vetted people are, the temptation and ability for abuse is way too strong. Just last week, we were quoting a bunch of “vetted” and “professional” NSA folks talking about how they fantasized about murdering Ed Snowden. Those comments don’t sound particularly professional at all. They sound like people who shouldn’t be allowed within miles of people’s private data. But Feinstein apparently sees no problems with those kinds of people having the ability to search through your private data. Because they’re “professional.”

January 21, 2014 Posted by | Civil Liberties, Corruption, Full Spectrum Dominance | , , , | Leave a comment

Your Rights Aren’t Worth Crap

Locking The Public Out Of Public Trials In Chicago

By CHRIS GEOVANIS | CounterPunch | January 21, 2014

Public trials are one of the fundamental tenets of American democracy. And they’ve been cancelled in Chicago, at least for the trial of the NATO 3 — three defendants battling terrorism charges for alleged ‘crimes’ wholly instigated, manufactured and advanced by undercover cops in a blatant case of entrapment. But you’ll be hard pressed to determine this for yourself, since you’re essentially banned from the courtroom unless you’re willing to surrender your right to privacy, your right to even a glimmer of free expression, or your right as a non-corporate reporter to cover the case in real time like your corporate colleagues can.

Government officials are forcing every member of the public seeking to observe the NATO 3 trial to ‘pre-register’, produce a government-issued ID, submit to a criminal background check — and, of course, trust them with your data.

This last bit is spectacularly hard to swallow, as news continues to come out about the extent of government spying and data-mining on perfectly lawful activity like talking on the phone. Government agencies have surveilled and disrupted the Occupy movement, to which the defendants had a loose affiliation, simply for existing, and we’ve barely begun to plumb the depths of cop spying in the run-up to Chicago’s NATO protest — and beyond. For Chicagoans, this comes in the wake of the Chicago cops’ notorious history of political spying, disruption and assassination going back to the days of the infamous COINTELPRO Red Squad.

In fact, there would be no criminal case against the three defendants if the city’s autocratic former mayor, Richard M. Daley, hadn’t finally succeeded in convincing the federal court in 2001 to effectively gut the Red Squad Consent Decree banning police spying, infiltration, harassment, intimidation and undercover disruption of political activity. The hollowed out decree was ultimately dissolved in 2009.

Attorneys for the NATO defendants have argued in a court finding that the ‘terrorism’ scheme they’re charged with is based on “idle chatter, laced with bravado and abetted, encouraged and egged on by the undercover police agents.” There was no actual act of vandalism committed, and there certainly was no act of ‘terror’ committed — unless you’re feeling terrorized by the prospect of undercover cops inciting thought crimes to dirty up your political beliefs. But there was, essentially, a law enforcement scheme to incite crime where no crime had been committed, wholly fomented by undercover cops engaged in manufacturing criminality — cop behavior that would have been illegal under the Red Squad consent decree.

Meanwhile, public officials continue to invoke the ‘terrorism’ meme in the NATO trial as part of a criminal prosecution that has consistently conflated dissent with criminality. And they’re taking no chances on uncontrolled spin in the case.

Besides making members of the public surrender their privacy rights to attend the trial, they’re enforcing the courts’ recently imposed ban on cell phones, lest people who CAN get in report from the ground, and have told those who are willing to ‘pre-register’ that officials are giving priority seating to those who then RE-register to attend a day before each trial date. You don’t re-register? You take your chances at getting a seat the following day. At one point, the judge even considered banning pencils and paper from the courtroom.

New rules for non-corporate reporters are equally extreme. Officials are imposing restrictions that effectively ban freelance reporters and reporters with non-corporate and non-traditional media from the kind of access and privileges — including the right to carry their cell phones — that corporate reporters will be afforded.

“It is my sense going into this trial that the Cook County Sheriff’s Office will be putting on a trial that undermines the public’s right to access much more than the US military did during Manning’s court martial,” writes Firedoglake reporter Kevin Gosztola. He should know, since he covered the Manning trial daily — and his most recent piece on the NATO 3 trial is a compelling and disturbing summary of the state’s dubious basis for its terrorism allegations.

The state’s scheme to effectively ban the public from a public — and publicly funded — trial is part of a long-standing official pattern to harass, arrest and undermine those who dissent in Chicago. For years, activists in Chicago had to fight in court for permission to rally and march against the Iraq war, and protesters have routinely been subject to arrest simply for attempting to exercise their First Amendment rights. More broadly, the restrictions that local government overlords have imposed on public access and public oversight in the NATO trial are part of a national effort to re-brand dissent as inherently dangerous.

The judge in the NATO 3 case, Thaddeus Wilson, prominently displays a picture of Martin Luther King behind his bench. If he were able, King would be spinning in his grave at some of the rulings Wilson has issued in the case. Wilson refused, for example, to dismiss a juror for cause, even though she routinely teaches at the Chicago police academy, and is married to the law enforcement officer who supervised the undercover operations of state police during the NATO protests. Despite the fact that police spying and its abuses lie at the heart of the NATO 3 case — and that this prospective juror’s very livelihood and family economy is grounded in police collaboration — Wilson ruled that there was no reason to doubt her ability to serve objectively.

That’s like saying that the chairman of BP is perfectly fit to serve on a jury weighing criminal negligence in the Deepwater Horizon disaster. Defense attorneys were forced to exercise a peremptory challenge to keep her off the jury.

Judge Wilson has also issued a disingenuously named ‘decorum’ order that sets the stage for massive courtroom repression. The edict is so sweeping that one could conceivably be ejected from the courtroom and cited for criminal contempt for the ‘crime’ of raising your eyebrows or shaking your head at testimony — or even smiling at a defendant. The order also bans political buttons, t-shirts, armbands and perhaps even particular colors — we won’t know until we show up wearing red or black or both. If you get up to take a leak, you can’t get back into the courtroom until the judge calls a recess — and in the jury selection of the phase, court sometimes ran past 9PM, so empty your bladder early.

Wilson has also consistently ruled in the prosecution’s favor in terms of what evidence will and will not be admissible. And in one of the judge’s worst rulings, Wilson has asserted that police are included under the terrorism definition of the state statute under which the defendants are being tried, which defines terrorism as “intent to coerce a significant portion of the civilian population.”

In short, the testimony of the undercover cops who manufactured the conditions for a ‘crime’ to be alleged should be treated like any testimony from any ‘civilian’. Jurors could essentially be asked to embrace the legal fiction that these undercover cops felt ‘coerced’ into the self-same crime they themselves were attempting to create and incite. This ruling essentially privileges testimony from cops in a police department whose officers routinely tell flat-out lies with impunity to bolster their cases.

It bears emphasizing that the undercover cops at the heart of this case are not civilians. They’re the undercover cops who told court officials they ‘lost’ a shitload of text messages that could have been exculpatory for the NATO 3 defense team — this in an age when virtually any electronic traffic anywhere lives somewhere, including in the NSA’s vast databases. Except when the NSA’s pals in the Chicago police department lose that electronic traffic. They’re the undercover cops who actually manufactured the conditions in which they could allege a crime under the notoriously vague and little used state terrorism statute under which the NATO 3 are charged. 

This is just as dunderheaded as the only other instance in which this state terrorism statute has been used to charge someone. In that case, the state convicted a college student for making a terrorist threat — even though he actually did no such thing — after cops searched his unoccupied car and found some crappy and inflammatory rap lyrics scribbled on a piece of paper. The state circuit court in that case sentenced the student — a Black man in a largely white community — to five years in prison. An appellate court later tossed out that conviction. Blacks, dissidents — hey, this state terrorism statute is perfect for Illinois’ law enforcement community!

Secret trials are abhorrent. That’s why the nation’s founders, whatever their other manifest flaws, banned them. Secret trials built on the testimony of undercover cops given broad license to manufacture and incite criminal activity to entrap defendants is particularly revolting and deeply dangerous to all of us.

“The NATO 3 trial is not about terrorism,” says Andy Thayer, who helped organize 2012’s protests against the NATO meeting. “This trial is about the government using hype ABOUT terrorism to pursue a political agenda, and as such represents a fundamental mis-use of the justice system, if we are to believe the words of the U.S. Constitution.”

The political agenda of the Cook County States Attorneys Office — the prosecutors of record of the NATO 3 and others criminally charged around the 2012 NATO protests — has included a stubborn commitment to defend its own most egregious miscarriages of justice. Cook County States Attorney and career Chicago prosecutor Anita Alvarez, who’s not been shy about chasing media face time in the NATO cases, has historically embraced the worst sorts of police excess and abuse — including cops who torture, lie and murder.

Alvarez’ local prosecutorial agenda dovetails with allied schemes in national and local government to support increasingly militarized police forces which hustle funding for their agencies on the public dime, and promote the careers of “security” industry professionals — many of whom are former members of these self-same militarized police forces.

Those self-same law enforcement agencies are also perfectly happy to collude with corporations to suppress dissent that those corporations deem unhelpful — what journalist Naomi Wolf has described as “totally integrated corporate-state repression of dissent.” 

To support this agenda in Chicago, authorities are using the tried and true tactic of terrifying people into signing off on their most fundamental civil liberties — including any vestiges of privacy rights — for the ‘privilege’ of attending a public criminal trial rooted in police misdeeds. More than a few activists who assembled in Chicago in May 2012 to oppose the murderous war agenda of NATO have said they simply will not submit to the state’s draconian terms to attend the NATO 3 trial. And in that respect, the state has succeeded in locking out some of the people with the most at stake in a ‘public’ trial in which defense attorneys have been consistently thwarted in their effort to expose law enforcement’s schemes to derail dissent and manufacture crime.

The Chicago police and their overlord, Rahm “Mayor 1%” Emanuel, worked mightily to make the city safe during the NATO protests for the worst sorts of corporate criminals and their military backers. Emanuel and Alvarez remain strong allies in a shared dystopian vision of civic life in a city that routinely criminalizes people of color and undermines the fundamental tenets of economic and social justice. It’s no accident that Mayor 1% backs privatization schemes in critical public endeavors that range from education to health — just as States’ Attorney Anita Alvarez backs privatizing this critically important public trial.

So, who are the real terrorists?

Chris Geovanis is a Chicago media activist, advocacy journalist and member of the HammerHard MediaWorks collective. You can reach her via Twitter @heavyseas, via her Facebook page or at chrisgeovanis(at)gmail.com

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January 21, 2014 Posted by | Civil Liberties, Deception, Full Spectrum Dominance | , , , | Leave a comment

Turkey signs law ‘criminalizing’ medical first aid without govt permit

RT | January 19, 2014

A medical bill has been signed into law in Turkey that requires doctors to obtain government permission before administering emergency first aid. Critics have blasted the bill as a crackdown on doctors who treat activists injured during protests.

The bill, which was drawn up by the ruling Justice and Development Party (AKP), punishes health care professionals with up to three years in prison or a fine of almost $1 million if they administer emergency first aid without government authorization.

It also bans doctors from practicing outside state medical institutions and aims to stop them from opening private clinics.

President Abdullah Gul signed the legislation into law Friday. It has prompted a flurry of accusations from rights groups, condemning it as an attempt to criminalize emergency health care and deter doctors from treating protesters.

The US-based Physicians for Human Rights (PHR) attacked the legislation as an attempt to quash dissent in Turkey, following last year’s violent protests.

“Passing a bill that criminalizes emergency care and punishes those who care for injured protesters is part of the Turkish government’s relentless effort to silence any opposing voices,” PHR senior medical adviser Vincent Iacopino said in a statement on the PHR website.

Describing the bill as “repugnant,” Iacopino said the legislation not only puts everyone’s health at risk, but also conflicts with the Turkish constitution and “must be blocked through Turkey’s constitutional court.”

The PHR says the bill will also put the medical community at odds with their ethical and professional responsibility to care for the sick and wounded.

The UN has implored the Turkish government to rethink the bill because it will have “chilling effect on the availability and accessibility of emergency medical care in a country prone to natural disasters and a democracy that is not immune from demonstrations.”

In last year’s wave of protests against Prime Minister Tayyip Erdogan, six people were killed and over 8,000 were injured across the country.

The government was accused of cracking down on medical professionals when the Turkish Health Ministry launched a probe into those doctors treating protesters in June. They asked the Turkish Medical Association (TBB) to hand over the names of the doctors and their patients.

“Recently we were inspected by the Ministry of Health, they said what we were doing here is wrong. But there could be no punishment for those who are helping people. There is no such religion or law that could discriminate against us,” Abtullah Cengiz, spokesman for the Gezi Park doctors, told RT in June.

January 19, 2014 Posted by | Civil Liberties, Full Spectrum Dominance, Solidarity and Activism, Subjugation - Torture | , , , | Leave a comment

NSA Metadata Collection: Fourth Amendment Violation

The Jurist | January 15, 2014

JURIST Contributing Editor Marjorie Cohn of the Thomas Jefferson School of Law discusses two recent decisions on the constitutionality of the National Security Agency’s (NSA) metadata collection program …

Edward Snowden, who worked for the National Security Agency (NSA), revealed a secret order of the Foreign Intelligence Surveillance Court (FISC), that requires Verizon to produce on an “ongoing daily basis … all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”

The government has admitted it collects metadata for all of our telephone communications, but says the data collected does not include the content of the calls.

In response to lawsuits challenging the constitutionality of the program, two federal judges issued dueling opinions about whether it violates the Fourth Amendment’s prohibition on unreasonable searches and seizures.

Judge Richard J. Leon, of the US District Court for the District of Columbia, held that the metadata program probably constitutes an unconstitutional search and seizure. Judge William H. Pauley III, of the US District Court for the Southern District of New York, determined that it does not violate the Fourth Amendment.

Leon’s Opinion

Leon wrote, “Because the Government can use daily metadata collection to engage in ‘repetitive surreptitious surveillance of a citizen’s private goings on,’ the ‘program implicates the Fourth Amendment each time a government official monitors it.’” The issue is “whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets. If they do—and a Fourth Amendment search has thus occurred—then the next step of the analysis will be to determine whether such a search is ‘reasonable.’” The first determination is whether a Fourth Amendment “search” has occurred. If so, the second question is whether that search was “reasonable.”

The judicial analyses of both Leon and Pauley turn on their differing interpretations of the 1979 U.S. Supreme Court decision, Smith v. Maryland. In Smith, a robbery victim reported she had received threatening and obscene phone calls from someone who claimed to be the robber. Without obtaining a warrant, the police installed a pen register, which revealed a telephone in the defendant’s home had been used to call the victim. The Supreme Court held that a person has no reasonable expectation of privacy in the numbers dialed from his telephone because he voluntarily transmits them to his phone company.

Leon distinguished Smith from the NSA program, saying that whether a pen register constitutes a “search” is “a far cry from the issue in [the NSA] case.” Leon wrote, “When do present-day circumstances—the evolution of the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.”

Then Leon cited the 2012 Supreme Court case of United States v. Jones, in which five justices found that law enforcement’s use of a GPS device to track the movements of a vehicle for nearly a month violated a reasonable expectation of privacy. “Significantly,” Leon wrote, “the justices did so without questioning the validity of the Court’s 1983 decision in United States v. Knotts, that the use of a tracking beeper does not constitute a search because ‘[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’” Leon contrasted the short-range, short-term tracking device used in Knotts with the constant month-long surveillance achieved with the GPS device attached to Jones’s car.

Unlike the “highly-limited data collection” in Smith, Leon noted, “[t]he NSA telephony metadata program, on the other hand, involves the creation and maintenance of a historical database containing five years’ worth of data. And I might add, there is the very real prospect that the program will go on for as long as America is combating terrorism, which realistically could be forever!” He called the NSA program “effectively a joint intelligence-gathering operation [between telecom companies and] the Government.”

“[T]he almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979,” Leon exclaimed, calling it “the stuff of science fiction.” He cited Justice Scalia’s opinion in Kyllo v. United States, which held the use of a thermal imaging device, that measures heat waste emanating from a house, constitutes a “search.” Justice Scalia was concerned about increasing invasions of privacy occasioned by developing technology.

Leon wrote, “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.”

Quoting Justice Sotomayor’s concurrence in Jones, Leon noted the breadth of information our cell phone records reveal, including “familial, political, professional, religious, and sexual associations.”

Having determined that people have a subjective expectation of privacy in their historical record of telephony metadata, Leon turned to whether that subjective expectation is one that society considers “reasonable.” A “search” must ordinarily be based on individualized suspicion of wrongdoing in order to be “reasonable.” One exception is when there are “special needs,” beyond the need for ordinary law enforcement (such as the need to protect children from drugs).

“To my knowledge, however, no court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion,” Leon wrote. “In effect,” he continued, “the Government urges me to be the first non-FISC judge to sanction such a dragnet.”

Leon stated that fifteen different FISC judges have issued 35 orders authorizing the metadata collection program. But, Leon wrote, FISC Judge Reggie Walton determined the NSA has engaged in “systematic noncompliance” and repeatedly made misrepresentations and inaccurate statements about the program to the FISC judges. And Presiding FISC Judge John Bates noted “a substantial misrepresentation [by the government] regarding the scope of a major collection program.”

Significantly, Leon noted that “the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.”

Pauley’s Opinion

Pauley’s analysis of the Fourth Amendment issue was brief. He explained that prior to the September 11th terrorist attacks, the NSA intercepted seven calls made by hijacker Khalid al-Mihdhar to an al-Qaeda safe house in Yemen. But the overseas signal intelligence capabilities the NSA used could not capture al-Mihdhar’s telephone number identifier; thus, the NSA mistakenly concluded that al-Mihdhar was not in the United States. Pauley wrote: “Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the Federal Bureau of Investigation (FBI) of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States.”

“If plumbed,” Pauley noted, the telephony metadata program “can reveal a rich profile of every individual as well as a comprehensive record of people’s association with one another.” He noted, “the Government acknowledged that since May 2006, it has collected [telephony metadata] for substantially every telephone call in the United States, including calls between the United States and a foreign country and calls entirely within the United States.”

But, unlike Leon, Pauley found Smith v. Maryland controls the NSA case. He quoted Smith: “Telephone users … typically know that they must convey numerical information to the telephone company; that the telephone company has facilities for recording this information; and that the telephone company does in fact record this information for a variety of legitimate business purposes.” Thus, Pauley wrote, when a person voluntarily gives information to a third party, “he forfeits his right to privacy in the information.”

While Leon’s distinction between Smith and the NSA program turned on the breadth of information collected by the NSA, Pauley opined, “The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search.” And whereas Leon’s detailed analysis demonstrated how Jones leads to the result that the NSA program probably violates the Fourth Amendment, Pauley failed to meaningfully distinguish Jones from the NSA case, merely noting that the Jones court did not overrule Smith.

Leon’s decision is the better-reasoned opinion.

Looking Ahead

This issue is headed to the Court of Appeals. From there, it will likely go the Supreme Court. The high court checked and balanced President George W. Bush when he overstepped his legal authority by establishing military commissions that violated due process, and attempted to deny constitutional habeas corpus to Guantanamo detainees. It remains to be seen whether the court will likewise refuse to cower before President Barack Obama’s claim of unfettered executive authority to conduct dragnet surveillance. If the court allows the NSA to continue its metadata collection, we will reside in what can only be characterized as a police state.

Marjorie Cohn is a Professor of Law at Thomas Jefferson School of Law, past president of the National Lawyers Guild, and deputy secretary general of the International Association of Democratic Lawyers. Her next book, Drones and Targeted Killing, will be published in 2014 by University of California Press.

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January 16, 2014 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , | Leave a comment

“The Americans Lied to Us”

The German government and its intelligence services no longer believe the United States will stop spying on German citizens. Resentment is running deep.

By Hans Leyendecker and Georg Mascolo | Süddeutsche Zeitung | January 13, 2014
Translated by Ron Argentati, edited by Gillian Palmer | Watching America

The planned “no spy” agreement with Germany seems doomed. While negotiations are still officially underway, Germany has little hope that a bilateral agreement acceptable to the United States is likely. The Americans will not even make a commitment to refrain from snooping on German government and political officials in the future.

There is a great deal of disappointment in German intelligence circles where the Bundesnachrichtendienst [the German intelligence agency] is charged with carrying on the negotiations. One BND expert told the Süddeutsche Zeitung, “We’re not getting anything in return.”

BND President Gerhard Schindler is said to have told his staff that he would prefer to do without a no-spy agreement under such circumstances. Resentment among German negotiators is considerable. One high-level negotiator feels the Americans lied to them.

The U.S., for example, refuses to tell Germany the time frame in which Angela Merkel’s telephone was being monitored and whether America eavesdropped on other high-level German government officials’ telephone conversations as well.

Prior to eavesdropping on the German chancellor, the U.S. had guaranteed in writing that American intelligence would avoid doing anything counter to German interests. Requests by German constitutional lawyers for access to a suspected U.S. listening station on the top floor of their embassy on Berlin’s Pariser Platz were rejected by U.S. officials.

The German government had previously informed the U.S. government it would consider such a listening station to be a breach of the Vienna Convention on Diplomatic Relations. The German attorney general’s office will determine whether a formal investigation should be conducted.

The U.S. refusal to sign an enforceable agreement came as a surprise to Berlin. As late as this summer, National Security Agency Chief General Keith Alexander told his German counterparts, among them BND President Schindler, that the U.S. was preparing a far-reaching no-spy agreement. But he always provided the caveat that such an agreement would have to be approved by the White House, saying his office had no authority to do so independently.

The Americans’ apparent engagement led the German government to expect a quick and positive conclusion. The word in August was that oral agreements with the Americans were already in place stipulating “no mutual espionage, no industrial spying and no infringements of national laws.” These supposed agreements have now vanished into thin air.

A spokesperson for the German government refused to comment on the Süddeutsche Zeitung report because negotiations were still underway. The chancellor’s office stated it had hopes of a conclusion sometime within the next three months.

Germany – Süddeutsche Zeitung – Original Article (German)

January 16, 2014 Posted by | Corruption, Deception, Full Spectrum Dominance | , , | Leave a comment

Academic delegation to Palestine endures 10-hour interrogation

Ma’an – 15/01/2014

BETHLEHEM – Members of an academic delegation were held for 10 hours by Israeli security forces when crossing into Palestine from Jordan, a statement said Tuesday.

A delegation of six academics and a labor activist came to the West Bank to conduct meetings with Palestinian scholars “in order to better understand conditions on the ground and to facilitate future collaborations,” one of the members said in a statement.

University of Illinois professor Junaid Rana said that on Sunday, four members of the delegation were held and interrogated by Israeli security forces, Interior Ministry employees, and the military for over 10 hours at the border.

“They were pressed about their scholarly research, academic networks, family backgrounds, nationalities, and ethnic origins,” Rana said.

“The Israeli security officer demanded contact and cell phone information and two delegates were coerced into accessing their email accounts using Israeli security computers.”

Additionally, the members were asked about previous travel to Arab countries.

“Rana was also asked why he attended a conference on ‘Transnational American Studies’ at the American University of Beirut in Lebanon, and whether he had any political writings related to Israel,” the statement said.

It continued by condemning the interrogation: “Such actions are a clear violation of academic freedom, including the freedom to travel for scholarly research, and demonstrate tactics of intimidation and harassment of scholarly inquiry.”

Some of the delegates who were held belong to US academic associations — such as American Studies Association, Association of Asian American Studies, and Native American and Indigenous Studies Association — that have endorsed an academic and cultural boycott of “Israeli institutions that are complicit in the continued colonization of Palestine.”

Three of the delegates were also personal supporters of the Boycott, Divestment, and Sanctions movement, the statement said.

“The delegation recognizes that their experiences on January 12, 2014, pales in comparison with the everyday surveillance and criminalization of Palestinian academics who are consistently denied the freedoms to research, publish, and travel,” Rana added.

Palestinians, in addition to other Arabs, Muslims, and pro-Palestinian activists, are often held for hours — and sometimes denied entry — at border crossings controlled by Israel.

In December, the American Studies Association announced its decision to boycott of Israeli academic institutions.

A statement from the organization read at the time: “The ASA’s endorsement of the academic boycott emerges from the context of US military and other support for Israel; Israel’s violation of international law and UN resolutions; the documented impact of the Israeli occupation on Palestinian scholars and students; the extent to which Israeli institutions of higher education are a party to state policies that violate human rights; and finally, the support of such a resolution by a majority of ASA members.”

Related articles

January 15, 2014 Posted by | Ethnic Cleansing, Racism, Zionism, Full Spectrum Dominance, Solidarity and Activism | , , , , , | Leave a comment

NSA Goes From Saying Bulk Metadata Collection ‘Saves Lives’ To ‘Prevented 54 Attacks’ To ‘Well, It’s A Nice Insurance Policy’

By Mike Masnick | Techdirt | January 13, 2014

Want to know why no one trusts anything NSA officials and their defenders have to say any more? When the bulk metadata collection was first revealed, those defenders went on and on about how the program “saved countless lives” and was instrumental in stopping terrorist attacks. Some skeptics then asked what terrorist attacks, and we were told “around 50” though details weren’t forthcoming. Eventually, we were told that the real number was “54 terrorist events” (note: not attacks) and a review of them later revealed that basically none of them were legitimate. There was one “event” prevented via the program on US soil, and it was a taxi driver in San Diego sending some money to a terrorist group in Somalia, rather than an actual terrorist attack.

In fact, both judges and the intelligence task force seemed shocked at the lack of any actual evidence to support that these programs were useful.

And yet, the NSA and its defenders keep insisting that they’re necessary. Director of National Intelligence, James Clapper, a few months ago, tried out a new spin, claiming that effectiveness wasn’t the right metric, but rather “peace of mind.” Of course, the obvious response to that is to point out that spying on everyone makes most of us fairly uneasy, and we’d have a lot more “peace of mind” if they dropped the program.

And, now, the NSA number 2 guy, who’s about to retire, John C. “Chris” Inglis, gave a long interview with NPR, in which he is now claiming that even if the program hasn’t been particularly useful in the past, that “it’s a good insurance policy.”

“I’m not going to give that insurance policy up, because it’s a necessary component to cover a seam that I can’t otherwise cover.”

Basically, we want to keep this information because we want that information, even if it’s not been shown to be at all useful. Of course, that’s the same logic one can use to defend just about any violation of the 4th Amendment. Putting a private drone with a camera and a recording device streaming everything it sees and hears while following around NSA deputy director Chris Inglis may not discover that he’s a corrupt bureaucrat willing to lie to the public, but it seems like a reasonable “insurance policy” to make sure he stays honest. After all, without that, the American public can’t prove that he’s not corrupt — so it seems like a reasonable “insurance policy to cover a seam we can’t otherwise cover.” At least, in the logic of Chris Inglis.

Related articles

January 13, 2014 Posted by | Civil Liberties, Deception, Full Spectrum Dominance | , , | Leave a comment

Ways to watch Press TV

Press TV – January 12, 2014

Following a move by the European satellite provider Eutelsat SA to take Press TV off the air in a flagrant violation of freedom of speech, Press TV viewers can continue to watch the news channel via the following satellites or by visiting the following websites:

You can watch Press TV by visiting the following websites:

Press TV watch live services (Worldwide)

OHTV Box (internet Set-top box) (Worldwide)

Livestation (internet platform. Supports PC MAC, Linux and all tablet PCs and smartphones)

Windows Mobile app

Press TV Mobile Page

Press TV YouTube

You could also view our broadcast in Europe through the following satellites:

Optus D2 (152E)
12581
22500
3/4
H
DVB-S,QPSK,MPEG-2


ST 2 (88E)
11051
30000
1/2
V
DVB-S2,8PSK,MPEG-4

Paksat 1R (38E)
4060
23000
5/6
H
DVB-S,QPSK,MPEG-2
Badr 5 (26E)
11881
27500
5/6
H
DVB-S2,8PSK,MPEG-4
Badr 5 (26E)
12303
27500
3/4
H
DVB-S,QPSK,MPEG-2
Badr 4 (26E)
12054
27500
3/4
V
DVB-S,QPSK,MPEG-2
Nilesat 201 A (7W)
11823
27500
5/6
V
DVB-S,QPSK,MPEG-2
Arabsat 5C (20E)
3964
30000
2/3
V
DVB-S2,8PSK,MPEG-4
Arabsat 5C (20E) (HD)
3913
12911
5/6
V
DVB-S2,8PSK,MPEG-4


Express AM44 (11W)
11109
9479
3/4
H
DVB-S2,QPSK,MPEG-2
Thaicom 5 (78.5 E)
3575
6500
3/4
H
DVB-S2,QPSK,MPEG-2

Related Interviews:

January 12, 2014 Posted by | Full Spectrum Dominance | , , , , , | Leave a comment

7 Things You Missed If You Didn’t Read Wired’s Big Story On How The NSA Is Killing The Internet

By Mike Masnick | Techdirt | January 7, 2014

Steven Levy, who specializes in massive articles looking into aspects of the tech industry, has a new one for Wired, called How the NSA Almost Killed the Internet. It basically looks at how the NSA legally coerced the tech companies into having to comply with certain court orders to hand over information, and how the tech companies have been gagged from explaining what’s going on. And then… he gets the NSA’s side of the story. Much of what’s in there is stuff that you probably already know (especially if you read Techdirt regularly), but I wanted to call out a few tidbits that I hadn’t seen or heard anywhere else before:

  1. Google doesn’t charge the government for requests for information:

    FISA requires the government to reimburse companies for the cost of retrieving information. Google says it doesn’t bother to charge the government. But one company says it uses that clause, hoping to limit the extent of the requests. “At first, we thought we shouldn’t charge for it,” says an executive of that company. “Then we realized, it’s good—it forces them to stop and think.”

    This is kind of a “damned if you do/damned if you don’t” situation. I know plenty of folks in the civil liberties community go back and forth on it. When companies do charge, then you see articles about how companies are “making a profit” off of violating our privacy. If they don’t charge, then you see arguments about how they’re making it too easy for the government to get info. Either way, the standard has been to charge basic costs, so it’s interesting to see that Google doesn’t charge at all, probably betting on the fact that if they did, it would be misrepresented. Of course, the fact that they don’t might be misrepresented as well.

  2. The NSA has no response to fear of future abuse of programs beyond “we’d never do that.” Seriously.

    Critics charge that while there is not yet any evidence of massive abuse of the NSA’s collected data, there is also no guarantee that a future regime won’t ignore these touted protections. These officials discounted that possibility, saying that the majority of NSA employees wouldn’t stand for such a policy. “If that happened, there would be lines at the Inspector General’s office here, and at Congress as well—longer than a Disneyland line,” Ledgett says. (The fates of several NSA employees-turned-whistleblowers indicate that anyone in that hypothetical queue would be in for a ride far wilder than anything in Anaheim.)

    Sure, except there’s a very long history of the NSA and the FBI doing exactly the opposite (the claim of no evidence of massive abuse is not actually true). And, as Levy notes in that final parenthetical, the way whistleblowers are treated these days would probably shorten that line quite a bit.

  3. Keith Alexander admits that companies were compelled to comply and admits that we should stand up for the companies not to be harmed by all of this:

    “This isn’t the companies’ fault. They were compelled to do it. As a nation, we have a responsibility to stand up for the companies, both domestically and internationally. That is our nation’s best interest. We don’t want our companies to lose their economic capability and advantage. It’s for the future of our country.”

    Those words could have come from a policy spokesperson for Google, Facebook, Microsoft, or Yahoo. Or one of the legislators criticizing the NSA’s tactics. Or even a civil liberties group opposing the NSA. But the source is US Army general Keith Alexander, director of the NSA. Still, even as he acknowledges that tech companies have been forced into a tough position, he insists that his programs are legal, necessary, and respectful of privacy.

    This is just bizarre. If he doesn’t want the companies to lose their economic capability and advantage, maybe he shouldn’t have undermined a large portion of it.

  4. Companies were given about 90 minutes to respond to the (misleading) claims in the original PRISM article that they had given the NSA direct access to their servers.

    “We had 90 minutes to respond,” says Facebook’s head of security, Joe Sullivan. No one at the company had ever heard of a program called Prism. And the most damning implication—that Facebook and the other companies granted the NSA direct access to their servers in order to suck up vast quantities of information—seemed outright wrong. CEO Mark Zuckerberg was taken aback by the charge and asked his executives whether it was true. Their answer: no.

    Similar panicked conversations were taking place at Google, Apple, and Microsoft. “We asked around: Are there any surreptitious ways of getting information?” says Kent Walker, Google’s general counsel. “No.”

    This remains one of the most unfortunate bits about the Snowden leaks. While I think that Barton Gellman, Glenn Greenwald and Laura Poitras have done an incredible job with most of their reporting, the original PRISM stories that appeared in the Washington Post and Guardian both came out rushed and were misleading, which is still impacting how people are reporting on these things today. The PRISM program and Section 702 of the FISA Amendments Act have serious issues that need exploring, but it’s all been distorted by the misleading initial claims, which implied things that just weren’t true.

  5. The NSA claims it uses the very same encryption that it tries to push everyone else to use. Yes, the same encryption that Snowden docs have revealed was compromised by the NSA.

    And the NSA insists that, despite the implications of those Snowden-leaked documents, it does not engage in weakening encryption standards. “The same standards we recommend are the standards we use,” Ledgett says. “We would not use standards we thought were vulnerable. That would be insane.”

    Sorry, but no one believes that one at all. The clear takeover by the NSA of NIST standards shows that’s clearly not true.

  6. The NSA still doesn’t realize how serious all of this is. They still think it’s just been blown out of proportion.

    They understand that journalism conferences routinely host sessions on protecting information from government snoops, as if we were living in some Soviet society. And they are aware that multiple security specialists in the nation’s top tech corporations now consider the US government their prime adversary.

    But they do not see any of those points as a reason to stop gathering data. They chalk all of that negativity up to monumental misunderstandings triggered by a lone leaker and a hostile press.

  7. Patent troll Nathan Myhrvold is also completely clueless about national security:

    Former Microsoft research head Nathan Myhrvold recently wrote a hair-raising treatise arguing that, considering the threat of terrorists with biology degrees who could wipe out a good portion of humanity, tough surveillance measures might not be so bad. Myhrvold calls out the tech companies for hypocrisy. They argue that the NSA should stop exploiting information in the name of national security, he says, but they are more than happy to do the same thing in pursuit of their bottom lines. “The cost is going to be lower efficiency in finding terrorist plots—and that cost means blood,” he says.

    This is stupid on so many levels. First, the old argument that it’s somehow equivalent of tech companies and the NSA to make use of information — a claim that Levy ridiculously repeats multiple times in his article — is a line that has been debunked so many times it’s really beneath Levy to give it any life at all, let alone refuse to point out how stupid it is. Companies provide a direct service to users, and they make a decision: If I give this information, I get this service in return. It’s a decision made by the consumer, and a trade-off where they decide if it’s worth it. We can argue that people should have more information about the costs and benefits, but it’s still a trade-off where the final decision is their own. The NSA, on the other hand, is not providing a choice or a trade-off. They’re just taking everything in exchange for nothing. And, oh yeah, they have guns and can put you in jail — something no company can do.

    Second, Myhrvold incorrectly buys completely the line that all this data collection has been helpful in stopping terrorists. There’s just one problem: there is no evidence to support that. Besides, based on his idiotic reasoning, we might as well just do away with pretty much all our rights. For example, I’m pretty sure that we could all have protected Myhrvold more completely if there were video cameras streaming video of everything he did within the privacy of his own home, cars, office or just walking around, right? We could certainly make sure that no one was attacking him or, better yet, that he wasn’t about to attack anyone. The cost of not spying on every moment of Nathan Myhrvold might mean “blood.” So, based on his own logic, we should violate his privacy, right?

All in all there’s a lot in the article that’s worth reading, but those were a few key points that really stood out.

January 8, 2014 Posted by | Civil Liberties, Corruption, Deception, Full Spectrum Dominance | , , | Leave a comment

Obama Plans Cosmetic Surveillance Changes After All, Will Set Up Pretend Fight Over NSLs

By Mike Masnick | Techdirt | January 6, 2014

Leaks coming out of the Obama administration suggest that the President is preparing mostly cosmetic changes to the intelligence community, following the recommendations from the intelligence task force — which were much stronger than many expected. The reports suggest things like putting a public advocate to represent the public’s views in certain cases before the FISC. This has been talked about for a while, and was the main concession plenty of people had been expecting anyway. That’s hardly anything big.

The article talks about two other potential reforms. The first is shifting the holding of phone call metadata from the NSA to the phone companies, allowing the NSA to still search through it after getting a court order. While this may be a marginal improvement, it still has tremendous problems. It will almost certainly come with some sort of data retention law — something that the feds have wanted for ages, and which civil liberties activists have been fighting against for years. Companies shouldn’t be required to hang on to data they don’t need, especially if getting rid of it can better protect their users’ privacy. Furthermore, while not letting the NSA hang onto the data is a good thing, there is a reasonable concern that if the telcos are hanging onto the data themselves, that they, too, might do bad things with it, with little to no oversight.

However, most of the article from the LA Times focuses on National Security Letter (NSL) reform. We’ve written about those for years. NSLs are the way that the FBI can demand information from companies without any judicial review at all and, even more insane, with a complete gag order that prevents the recipient from telling anyone (including, at times, your lawyer). The FBI has an incredibly long history of “serious misuse” of NSLs, and has shown little to no interest in fixing the process. Nearly a year ago, a court actually ruled them unconstitutional, but there’s an ongoing appeals process that will take quite a bit of time.

However, as the article notes, the DOJ/FBI and other surveillance maximalists are all horrified by the idea that Obama might actually require judicial approval of NSLs, for all but “emergency” situations. What this sounds like is that the President may suggest something along those lines, there will be a well coordinated press attack from surveillance hawks freaking out about the danger this puts us all in… and then he’ll back down on that one point. And we’ll be left with… basically nothing, but the President will go around insisting that he reformed the intelligence community, while everything more or less stays the same.

Related articles

January 7, 2014 Posted by | Civil Liberties, Corruption, Deception, Full Spectrum Dominance, Progressive Hypocrite | , , , , , | Leave a comment

Canada’s CSE admits to ‘incidental’ spying

Press TV – January 7, 2014

Communications Security Establishment Canada (CSE) has admitted that it “incidentally” spied on Canadians, making it the first time the agency deviates from its standard statement that it does not “target” the electronic communications of Canadian citizens.

The country’s foreign intelligence agency said in a statement published on its website that “it is possible that we may incidentally intercept Canadian communications or information.”

A spokesman for the agency said the statement was an initial response to the media attention following the disclosures by American whistleblower Edward Snowden.

According to the CSE, additional information about how it operates is to be posted in coming months “to share more information about our organization in as transparent a manner as possible while still respecting our security obligations.”

However, experts say the effort by the CSE is mostly government mantra and it does not address issues raised by Snowden leaks.

Wesley Wark, a security intelligence expert at the University of Ottawa, said the statement does not discuss the disclosures about collections of metadata or about the use of CSE’s foreign intelligence partners, including the United States, for information exchanges about targets, including Canadians of national security concern.

The leaked documents published in recent months have revealed among others that Canada has set up cover spying posts around the world and spied on trading partners at the request of the US National Security Agency (NSA).

Reports published in Canadian media and based on the leaks have shown that Canada allowed the NSA to conduct surveillance operations on its soil during the 2010 summits of G8 and G20.

Other reports have shown that the Canadian intelligence agency spied on communications at Brazil’s Mining and Energy Ministry, as it has mining interests in the South American country.

Related articles

January 7, 2014 Posted by | Civil Liberties, Corruption, Full Spectrum Dominance | , , , , | Leave a comment

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