Cellphone tracking cases highlight privacy concerns in digital age
Rt | August 20, 2013
In recent weeks, two cert petitions were filed seeking review of whether the Fourth Amendment covers police searches of cellphone records upon arrest.
From mobile phone and GPS tracking to license plate reading and domestic surveillance drones — not to mention recent revelations of widespread abuse of surveillance capabilities by the National Security Agency — these cases and many others highlight major questions that remain unanswered regarding how privacy rights of Americans can co-exist with the use of rapidly evolving technologies.
State and federal law enforcement agencies have wasted no time seizing on gaps and omissions in established legal precedent to justify vast, routine surveillance of the American public which tests Fourth Amendment rights.
On July 30, a petition was filed in Riley v. California challenging a previous ruling in a California appellate court that affirmed the petitioner’s convictions, which stemmed in part from a questionable search of his smartphone in 2009 following a traffic stop for expired license plates. And late last week, the US Department of Justice filed a petition in United States v. Wurie asking for review of a First Circuit Court of Appeals ruling that police needed a warrant to access a suspect’s phone records. Regarding Wurie, the government contends a cell phone is no different from any other item on a suspect at the time of arrest. The search pertaining to Wurie occurred in 2007.
On the surface, the two cases have much in common. But in Riley, the phone in question is a smartphone – a Samsung Instinct M800. In Wurie, the cellphone was a Verizon LG flip-phone incapable of maintaining the breadth of information – including internet searches, email, photos and other media – that a smartphone can store.
As of May, Pew Research Center found that 91 percent of Americans own cellphones, and 61 percent of those cellphones are smartphones.
GPS technology has received more scrutiny from courts than cellphones have in recent years. Last week, the Justice Department appeared before a federal court defending its right to shield legal memos that provide guidance to federal prosecutors and investigators for how to use GPS devices and other surveillance technologies from the public. In a sense, the memos were released upon a Freedom of Information Act request by the American Civil LIberties Union (ACLU), though their contents were heavily redacted.
The memos (read here and here) were legal interpretations of a January 2012 Supreme Court ruling in United States v. Jones in which the court ruled the use of GPS technology to track a car’s movements constitutes a “search” within the parameters of the Fourth Amendment. Upon release of the indecipherable legal memos, the ACLU filed a lawsuit seeking the full, uncensored guidelines.
“While we agree that executive branch lawyers should be able to freely discuss legal theories, once those opinions become official government policy the public has an absolute right to know what they are,” wrote Brian Hauss, legal fellow with the ACLU’s Speech, Privacy and Technology Project. “Otherwise, the government is operating under secret law that makes accountability to the people impossible.”
The ruling in United States v. Jones left many unanswered questions regarding the use of other location-monitoring technologies pertaining to, for example, the tracking of cellphones or the use of license-plate readers – not to mention the use of surveillance drones in the US. In addition, the Jones ruling fell short of even determining whether a warrant is necessary to use GPS devices.
Building on the Jones decision, New Jersey recently became a state ahead of the curve in defining rules for law enforcement and privacy rights in the digital age. The New Jersey Supreme Court ruled in July that state police must have a search warrant before obtaining tracking information from cellphone providers.
“Using a cellphone to determine the location of its owner can be far more revealing than acquiring toll billing, bank, or internet subscriber records,” Chief Justice Stuart Rabner wrote in the case’s opinion. “Details about the location of a cellphone can provide an intimate picture of one’s daily life and reveal not just where people go – which doctors, religious services and stores they visit – but also the people and groups they choose to affiliate with. That information cuts across a broad range of personal ties with family, friends, political groups, health care providers and others.”
In June, Montana became the first state to require police to obtain a warrant before tracking a suspect’s cellphone.
In March 2012, the ACLU reviewed records from over 200 local police departments, finding vast, aggressive use of cellphone tracking for emergency and nonemergency uses.
Another ACLU report, released in July of this year, queried around 600 local and state police departments (and other state and federal agencies) via public records requests to assess how these agencies use automatic license plate readers. The civil liberties organization found massive databases of innocent motorists’ location information gleaned through hundreds of millions of “plate reads” by the ubiquitous readers. Data is often stored for an indefinite period of time, revealing just how easy it is for law enforcement – as well as many private companies – to track any license plate with few legal restrictions in place to stop them.
For example, for every one million plates that were read in the state of Maryland in the first half of 2012, 2000 (0.2 percent) were hits, mostly regarding registration or emissions issues. Of those 2000 hits, less than 3 percent (47) were potentially connected to more serious crimes.
In addition, much of this network of readers throughout the nation is in place thanks to a large amount of federal funding – $50 million in the last five years.
Approval of licenses for domestic drones has begun, as RT has reported, even though solid rules for their eventual use in American skies have yet to materialize from either Congress or the Federal Aviation Administration. The FAA expects as many as 30,000 drones in American airspace by 2020.
For now, many local law enforcement agencies are leading the quest for drone-use approval, though requests for commercial drones are mounting. As of February 15, 2013, there were 327 active drone certifications despite there being no regulatory framework in place. However, the FAA did get around to certifying two types of unmanned aircraft for civilian use in the US in late July.
In the meantime, federal government agencies have used drones domestically both out in the open and in secret. The Federal Bureau of Investigation has admitted to already using surveillance drones despite no established law or guidelines for their use. The US Department of Homeland Security has used surveillance-capable drones along the border for years, even allowing other federal agencies to use its fleet to the tune of 250 times in 2012 alone, The New York Times reported.
Focusing on the Core Harms of Surveillance
By Frank Pasquale | Balkinization | August 16, 2013
The “summer of NSA revelations” rolls along, with a blockbuster finale today. In June, Jennifer Granick and Christopher Sprigman flatly declared the NSA criminal. Now the agency’s own internal documents (leaked by Snowden) appear to confirm thousands of legal violations.
Legal scholars will not be surprised by the day’s revelations, just as few surveillance experts were all that shocked by the breadth and depth of PRISM, PINWALE, MARINA, and other programs. Ray Ku called warrantless surveillance unconstitutional in 2010. Civil liberties groups and legal scholars warned us repeatedly about where Bush-era executive power theories would lead. As anyone familiar with Bruce Ackerman’s work might guess, pliable attorneys have rubber-stamped the telephony metadata program with a “white paper” that “fails to confront counterarguments and address contrary caselaw” and “cites cases that [are] relatively weak authority for its position.” There are no meaningful penalties in sight (perhaps because the OLC has prepared documents that function as a “get out of jail free” card for those involved).
Like the data mining they employ, the NSA surveillance programs are hard to govern democratically (or cabin legally) because of the speed, scale, and secrecy of the problems they address. They fall into “black holes” of administrative review, where the inclination of judges to review them is at lowest ebb. Even if judges find “ticking time bomb” scenarios unlikely in the extreme, the surveillance apparatus can evoke plenty of other existential risks to demand deference. If you were on the FISA court and the NSA told you that they needed to collect everyone’s data because they were trying to track down a swarm of poison-bearing microdrones, how long would you delay them to “dig into the substance” before approving the request? As Desmond Manderson has argued, “Trust Us Justice” is the order of the day.
Real Harms
Nevertheless, the long-term danger of an unaccountable surveillance state is probably much greater than that posed by any particular terror threat.* Both Julie Cohen and Neil Richards have explained the many dangers arising out of pervasive surveillance. As Richards observes,
[The] special harm that surveillance poses is its effect on the power dynamic between the watcher and the watched. This disparity creates the risk of a variety of harms, such as discrimination, coercion, and the threat of selective enforcement, where critics of the government can be prosecuted or blackmailed for wrongdoing unrelated to the purpose of the surveillance.
To make this more concrete: note that the US’s intelligence apparatus has already extensively monitored libertarians and peace activists. According to the Partnership for Civil Justice Fund, “from its inception, the FBI treated the Occupy movement as a potential criminal and terrorist threat.” During Occupy Wall Street, investigative journalists uncovered command centers advised by federal and local officials and banks. Skeptics wondered whether banks’ lucrative “private detail pay” and donations for police helped motivate multiple, brutal crackdowns on peaceful (if unorthodox) protesters. Homeland security officials may have advised local police on containment of the hundreds of “Occupy” encampments that arose in the fall of 2011. And in terms of selective enforcement: one has to wonder why police decided to care about a six-year-old open container violation at the homes of activists one day before May Day protests.
For a concrete example of how an activist deals with this type of news, consider the story of one Daytona woman:
[She] is a 45-year-old married mother of two young children. She is a homeowner, a taxpayer and a safe driver. She votes in every election. She attends a Unitarian Universalist church on Sundays. She is also, like nearly all who have a relationship with the Occupy movement in the United States, being monitored by the federal government. . . . McLeish worries about how being a target of FBI attention will affect her life. “Can the inclusion of my name and information on a federal law enforcement domestic terrorist watch list impact my ability to make a living and provide for my children?” she asked.
This is not a purely speculative concern, however much the SCOTUS majority in Clapper v. Amnesty may dismiss such worries as the fruit of a “chain of contingencies.” FBI screens are used to deny persons jobs, now. Many applicants have no idea they are even part of the hiring process:
Updating the records of those who fall through the cracks can be confusing and cumbersome. FBI regulations say that employers and licensing agencies should give applicants time to challenge and correct their records, either by contacting the FBI or the jurisdiction that collected the data. But applicants are not always given a copy of their report or told why they were disqualified. Often, the burden is on them to prove an error was made.
Even if the databases don’t include those who are not arrested, what stops law enforcement agencies from including “suspects” in related databases? Employers may not want to have anything to do with someone “under watch” by the government. Moreover, even being arrested can be a form of speech: consider the Moral Monday protesters in North Carolina.
Speculative No More
In his press conference last week, President Obama stated, “If you look at the reports, even the disclosures that Mr. Snowden’s put forward, all the stories that have been written, what you’re not reading about is the government actually abusing these programs and, you know, listening in on people’s phone calls or inappropriately reading people’s e-mails.” In Clapper v. Amnesty Int’l, Justice Alito trivialized the plaintiffs’ concerns as mere conjecture. Surveillance promoters on both left and right argue that privacy activists haven’t demonstrated any concrete harms. The former NSA director has dismissed those concerned as “nihilists, anarchists, activists, Lulzsec, Anonymous, twentysomethings who haven’t talked to the opposite sex in five or six years.”
Implications of paranoia (among those worried about surveillance) now themselves appear fantastical. The Supreme Court’s bizarre decision in Clapper v. Amnesty International, that respondents’ claims about being monitored were “too speculative” to merit judicial review, now deserves not merely rebuke, but reconsideration. Unless the surveillance apparatus wants to claim that Greenwald, the ACLU, EPIC, and PCJF are making up documents out of whole cloth, it has to acknowledge that not only have laws been violated, but exactly the types of harms those laws were designed to stop have indeed occurred. This is not just a matter of legalist punctilio or nihilist skepticism.
Tragically, the core surveillance harms are not likely to provoke much political pushback against the NSA. Unlike the Framers, who wrote the Constitution shortly after risking their lives for their political commitments, most Americans have little respect for the political targets of NSA/DHS/FBI/Police/DEA surveillance and information sharing.** For the average voter, about the only thing more suspect than the two major parties are political activists who operate outside their ken. Justice Roberts’s FISA Court, and the dozens of appellate judges like them, are unlikely to have more enlightened views. A movement to make the surveillance apparatus more accountable will need to achieve its goals indirectly, focusing on the costs, creepiness, or crony capitalism of mass surveillance. I hope to elaborate on each of these issues in future posts.
*Though perhaps not greater than the sum of terror threats—a question presently explored via cost-benefit analysis, but probably better addressed in scenario planning.
**To preempt the comment “you’re mixing up different programs:” please take a look at this article on vertical and horizontal fusion of data sources in the new Information Sharing Environment. For the TL;DR crowd, there’s this.
Related article
- NSA “Nothing to see here, people” types thoroughly embarrassed again (washingtonmonthly.com)
False Flags and Hijacking Minds
By Ludwig Watzal | Dissident Voice | August 17, 2013
Before I came across the book Hijacking America’s Mind on 9/11: Counterfeiting Evidence by Elias Davidsson, I believed in the official narrative on 9/11. I read the book twice. It completely shattered my former belief.
I’m no expert on 9/11 and do not believe in esoteric theories. My attitude towards 9/11 has been marked by a certain curiosity, but also by healthy skepticism. When I initially stumbled across articles questioning the official 9/11 narrative, I just read them and put them away. With Davidsson’s book, it was different: it immediately captivated me.
Having hitch-hiked extensively all over the United States and studied international relations at the University of Pennsylvania in Philadelphia, I am somehow familiar with how American society ticks. I have noted that after every severe calamity in the US, an immediate inquiry is initiated to determine the facts. When it comes to airplane crashes, it befalls the National Transportation Security Board (NTSB) to determine the circumstances in which the airplane crashed: the plane is pieced together from the debris, the cause of the crash is determined and a public report is issued regarding the circumstances of the crash. The U.S. government did not, however, permit the NTSB to investigate the 9/11 crashes. It had to be carried out, exceptionally, by the more secretive FBI, which has no obligation to publish its findings. Why did the U.S. government insist on such unprecedented secrecy?
Elias Davidsson’s book may provide an answer to this question. His book is a very thorough study of specific aspects of the 9/11 events that have hitherto been neglected. The strength of his book lies in its reliance on primary evidence, the sources for which are provided so that readers can check for themselves the accuracy and relevance of the evidence. Davidsson does not merely provide footnoted references to the sources but has actually posted a great number of source documents on his website, sparing readers tedious searches. This unusually user-friendly approach indicates the author’s willingness to subject him to the most exacting scrutiny by readers. What makes his study so compelling is his judicious use of official U.S. government documents to undermine the assertions of the U.S. government itself? A great part of his sources are FBI documents culled from the U.S. National Archives (NARA).
The author provides persuasive evidence that the official narrative is riddled with contradictions, anomalies, puzzling coincidences, lies, forged and planted evidence; that witnesses were intimidated; and that news was fabricated. A substantial chunk of his book is devoted to an analysis of the telephone calls made between passengers and crew-members with their colleagues or loved-ones on the ground. It is actually the most comprehensive and thorough analysis of these phone calls undertaken to date. One gets the rather sinister impression – reading the quoted phone calls – that the callers were not experiencing true hijackings. Readers will have to judge for themselves whether this impression is justified.
The author was born in Palestine in 1941 to Jewish parents and grew up in Jerusalem but lived for most of his life in Iceland. Apart from his double professional career, first as a computer expert and then as a music teacher and composer, he became interested in international law in the 1990s and published a number of extensive papers in the fields of international law, human rights law, and international criminal law. In 2002, prompted by anomalies he discovered in the official narrative on 9/11, he started researching these events. The present book represents the culmination of ten years’ work.
The book is divided into four parts and 14 chapters. The style of the presentation is narrative and easy to follow. Davidsson’s book is the first one that demonstrates, beyond reasonable doubt, that there exists no evidence for the claim that Muslim terrorists hijacked planes on 9/11. His book is not limited to debunking this claim. He also shows that the U.S. authorities have failed to identify the debris of the aircraft that crashed or allegedly crashed at the various sites on 9/11. Based on his comprehensive analysis of the phone calls, Davidsson invites readers to consider what he designates as his best theory regarding the nature of the phone calls.
Before involving readers with the intricate forensics of the case, the author highlights the incredible swiftness with which the official narrative on 9/11 emerged: CBS News named Osama bin Laden as the main suspect within 15 minutes. Approximately 20 minutes after the second plane crash, President Bush declared that “America is under attack,” although he had no evidence that the events were related to a foreign source. The facts of the case were not determined by investigators, but by the U.S. Congress, meeting 24 hours after the events. Relying on a statement made by Senator Lott, Davidsson reveals that the congressional resolution was already in the works on the very day of the incident.
For the author, 9/11 was a brilliantly orchestrated “propaganda coup”. The dramatists of 9/11 must have envisaged that the events, played out real time on television, would serve to unite the American people and rally the population behind the flag. This turned out to be the case. The role of U.S. and European media in promoting the official 9/11 version is well known. Established media deliberately and routinely suppress facts that might undermine public belief in the official version, for example the admission by the FBI in June 2006 to possess no hard evidence of a link between Osama bin Laden and 9/11.
Is it possible to challenge Davidsson’s work? One might argue that a colossal crime such as 9/11 would involve so many people, that the plot could not be kept secret. According to this argument someone, among the many participants, would have long ago “spilled the beans.” How compelling is this view? What does it mean to “spill the beans”? How likely will eyewitnesses “spill the beans”?
First, it should be clarified that government conspiracies do not always remain secret. They are often exposed by scholars and historians. But as long as such exposure is limited to scholarly books and suppressed by the corporate media, these plots remain – for the general public – “conspiracy theories”. A few examples should suffice:
In 1967, the US and Israel conspired in attempting to sink the USS Liberty off the coast of Israel. The US Navy personnel who survived the perfidious attack attempted to raise public knowledge about this conspiracy but did not succeed. The facts have been thoroughly documented by British journalist Peter Hounam, who interviewed survivors and participants. They are known to those who wish to know, but are kept suppressed from the large public.
The Tuskegee Syphilis experiment is cited as “arguably the most infamous biomedical research study in U.S. history.” This experiment was conducted between 1932 and 1972 by the U.S. Public Health Service. The conspiracy of deception on which this experiment was based, was only brought to public in 1972 by a whistleblower, i.e. 40 years after the experiment began.
Operation Gladio refers to terrorist acts secretly engineered by the secret services in Italy, Belgium, Greece, Turkey and possibly Germany during the Cold War. These murderous acts were staged to appear as terrorism by leftist groups. The operation was kept secret for 40 years in Western Europe with no one blowing the whistle. It was revealed in 1990 by the Italian Prime Minister Julio Andreotti, addressing the Italian parliament, but even that did not ensure wide public knowledge because major media did not cover the story. Most European people, including academics, journalists and politicians, are not aware of this murderous conspiracy which was carried out by their own governments. Those unaware of this operation will be tempted to call it a “conspiracy theory”.
In addition to media reluctance to report government conspiracies, the modus operandi of covert operations needs also to be considered. Covert operations carried out by the military are always organized according to the “need to know” principle. Michael Ruppert, one of the first independent investigators of 9/11, reminded readers: “From the Manhattan Project to the Stealth fighter, the US government has successfully kept secrets involving thousands of people. Secondly, in order to execute a conspiracy of the size and type I am suggesting – 9/11 — it is not necessary that thousands of people see the whole picture. The success of the US in maintaining the secrecy around the atom bomb and the Stealth fighter, or in any classified operation, lies in compartmentalization. A technician in Tennessee refining uranium ore in 1943 would have had no knowledge of its intended use or any moral culpability in any deaths that occurred as a result of it. Another technician in Ohio, mixing a polymer resin in 1985, would have had no knowledge of what an F117A looked like or what it was intended to do.”
Many people believe that a government employee aware of illegal practices by his agency or his superiors will immediately report to the police or speak to a journalist. This belief is not justified. Exposing a high state crime requires great personal courage and entails risks to one’s career, security or even life. Even the courageous whistleblower cannot be certain that those, to whom he confides will publicize the information, suppress it or inform on him to his superiors. Just consider what happened to Bradley Manning, Edward Snowden or Julian Assange! Sadly, most people do not even dare to ask elementary questions about 9/11, afraid of being ostracized or even losing their jobs. Civil courage is a rare commodity.
Summing up his findings, Elias Davidsson refers to human rights norms according to which the families of 9/11 victims are entitled to know what happened to their next-of-kin and society is entitled to have the perpetrators, planners and facilitators of the mass-murder identified, prosecuted and convicted. He furthermore sees in efforts to expose 9/11 a “revolutionary potential” because it would reveal what he sees as the monumental failure of our institutions to seek the truth on these murderous events.
Davidsson’s book is not an introduction to 9/11 critical studies. It caters to those who are already aware of the major anomalies in the official narrative. The book is a must read to those concerned with the stealthy transformation of Western democracies into police states and to those who oppose the wars conducted by the United States and its allies.
Dr. Ludwig Watzal works as a journalist and editor in Bonn, Germany.
Federal Appeals Court Lets FBI off the Hook after It Lied to a Judge
By Ken Broder | AllGov | August 12, 2013
Yes, the FBI was spying on the Muslim community in Southern California and, yes, it lied to a federal judge about the existence of documents relevant to a case regarding that surveillance.
But, no, the FBI shouldn’t be sanctioned for its behavior.
That was the ruling by the U.S. Ninth Circuit Court of Appeals, which disagreed with U.S. District Judge Cormac J. Carney, who ordered the government in 2011 to pay court costs for those bringing suit on behalf of the Islamic Shura Council of Southern California, an umbrella organization of mosques and Muslim organizations that has operated in Southern California since 1995.
The civil liberties case before the District Court alleged that U.S. authorities illegally spied on mosques in 2006 and 2007. The FBI was accused of sending an undercover informant into several Orange County mosques as part of Operation Flex and may have collected information on hundreds of people. The FBI admitted that it used the informant, but demanded that the case be tossed for national security reasons.
Lawyers for the mosques demanded to see surveillance records on the plaintiffs. The FBI told the judge it had provided all the information within the scope of the plaintiffs’ original Freedom of Information Act request. That wasn’t true and an incensed Judge Carney sanctioned the FBI.
“The Government cannot, under any circumstance, affirmatively mislead the Court,” Judge Carney wrote.
But the Ninth Court of Appeals said that wasn’t true and reversed his ruling. You can, apparently lie to a judge if later on you admit you lied.
The FBI had initially released eight heavily-redacted pages of information in response to the lawsuit brought against them and said that was all there was. But eventually they coughed up another 100 pages of equally heavily-redacted documents that they showed the judge privately in camera. Then, later, the FBI produced yet more documents.
In response to the serial deception, Carney wrote in his 2011 ruling, “The court must impose monetary sanctions to deter the government from deceiving the court again.”
The three-judge appellate panel disagreed, cited what is known as a safe harbor provision of the law, and reversed on procedural grounds, saying what counted was the fact that the judge eventually got the documents.
A frustrated Judge Carney tossed out the spying lawsuit against the FBI in August 2012 for national security reasons, likening himself to a fictional Greek hero who must save all those around him at the expense of a few. “Odysseus opted to pass by the monster and risk a few of his individual sailors, rather than hazard the loss of his entire ship to the sucking whirlpool,” the apologetic judge wrote.
To Learn More:
No Sanctions for FBI’s Evasive Court Tactics (by Tim Hull, Courthouse News Service)
Judge Sanctions FBI for Hiding Info from Him (by Tim Hull, Courthouse News Service)
Mosques Will Not Get Day in Court to Contest U.S. Spying (by Ken Broder, AllGov California)
Federal Court Sanctions FBI for Lying about Surveillance Records (by Noel Brinkerhoff and David Wallechinsky, AllGov)
Islamic Shura Council of Southern California et al v. Federal Bureau of Investigation (U.S. Ninth Circuit Court of Appeals) (pdf)
ACLU Calls for New Investigations into Todashev Death
Ibraghim Todashev’s father holds up photos of his dead son at a press conference at the RIA Novosti headquarters. © RIA Novosti. Alexander Natruskin
RIA Novosti – July 23, 2013
WASHINGTON – The American Civil Liberties Union (ACLU) wants two US states, Florida and Massachusetts, to open their own investigations into the Federal Bureau of Investigation (FBI) shooting death of a Chechen immigrant acquainted with one of the Boston Marathon bombing suspects.
“A person was shot and killed at the hands of law enforcement in Florida. That alone should require Florida officials to investigate, and explain to the public what happened,” said Howard Simon, Florida Executive Director for the nonprofit civil liberties organization, in an ACLU press release.
The FBI and the Department of Justice are conducting an internal inquiry into the death of 27-year-old Ibragim Todashev, who was shot and killed by a Boston-based FBI agent during an interrogation with several different law enforcement agencies at his Orlando, Florida apartment on May 22.
Todashev was being questioned about a triple murder in the Boston area and his link to suspected marathon bomber Tamerlan Tsarnaev, who was killed during a shootout with police in the Boston suburb of Watertown four days after the bombings.
There have been varying reports about exactly what happened when Todashev was killed.
“Florida officials are simply deferring to the FBI, allowing the FBI to investigate itself, but it is difficult to accept the FBI’s honesty in this matter,” the ACLU wrote in a letter to Commissioner Gerald Bailey of the Florida Department of Law Enforcement, adding, “Now, more than eight weeks later, the public has very little information about this incident… Officials in both states should conduct their own investigations.”
In a similar letter to Massachusetts Attorney General Martha Coakley, the ACLU of Massachusetts (ACLUM) pointed to a New York Times analysis that found “FBI shooting reviews… virtually always clear the agency of wrongdoing.”
Last week the FBI blocked the release of Todashev’s autopsy by the Florida medical examiner’s office.
Carol Rose, ACLUM executive director, wrote, “It seems unlikely that the FBI investigation will meaningfully inform Massachusetts residents about what happened.”
Coakley’s office does not plan to open a new investigation.
“While the use of deadly force by law enforcement should be appropriately investigated, this particular incident happened in another state, which is outside our jurisdiction,” Coakley spokesman Brad Puffer told RIA Novosti.
Officials in Florida did not immediately respond to a request for comment from RIA Novosti.
Related article
- FBI withholds autopsy of Tsarnaev associate ‘shot in head’ during questioning (alethonews.wordpress.com)
FBI withholds autopsy of Tsarnaev associate ‘shot in head’ during questioning
RT | July 17, 2013
The FBI has ordered a Florida medical examiner’s office not to release the autopsy report of a Chechen man who was killed during an FBI interview in May over his ties to one of the suspected Boston Marathon bombers.
The autopsy report for Ibragim Todashev, 27, killed by an FBI agent during an interrogation which took place in his apartment on May 22 was ready for release on July 8. However, the FBI barred its publication, saying an internal probe into his death is ongoing.
“The FBI has informed this office that the case is still under active investigation and thus not to release the document,” according to a statement by Tony Miranda, forensic records coordinator for Orange and Osceola counties in Orlando.
The forensic report was expected to clarify the circumstances of Todashev’s death. The Bureau’s statement issued on the day of the incident provided no details of what transpired, saying only that the person being interviewed was killed when a “violent confrontation was initiated by the individual.”
Back in May Ibragim Todashev’s father showed pictures of his dead son’s body at a press conference in Moscow, revealing he had been shot six times.
“I only saw things like that in movies: shooting a person, and then the kill shot. Six shots in the body, one of them in the head,” Abdulbaki Todashev said .
The medical examiner’s office promised to check on a monthly basis whether the FBI is ready to grant permission for release of the autopsy report.
Todashev was interrogated by the FBI several times following the Boston Marathon bombings, with the final interview resulting in a fatal altercation. He was supposedly questioned over his alleged role in an unsolved 2011 triple homicide in Waltham, Massachusetts, which bombing suspects Tamerlan and Dzhokhar Tsarnaev have been implicated in. Todashev was reportedly about to sign a written statement which would have tied him to the murders when he allegedly attacked an FBI agent.
Investigators, most of them speaking anonymously, would later offer conflicting accounts of what happened in Todashev’s final minutes, with some claiming the man brandished a knife and others insisting he was unarmed
Despite the FBI’s promise to look into the case, civil rights activists have called for an independent investigation.
The US Department of Justice Civil Rights Division announced on Monday it was overseeing a federal inquiry into the shooting incident.
“Federal prosecutors will review the evidence and make an independent determination whether a federal criminal investigation is warranted,” the Boston Herald cites a letter by US Deputy Assistant Attorney General Roy L. Austin as saying.
Todashev’s widow, Reniya Manukyan, welcomed news of the federal inquiry.
“We are glad that DOJ started. Hopefully it will bring more attention of the public and everybody will question the FBI and why they are not releasing anything,” she said.
Bills Introduced by Congress Fail to Fix Unconstitutional NSA Spying
By Mark M. Jaycox | EFF | July 15, 2013
In the past two weeks Congress has introduced a slew of bills responding to the Guardian‘s publication of a top secret court order using Section 215 of the PATRIOT Act to demand that Verizon Business Network Services give the National Security Agency (NSA) a record of every customer’s call history for three months. The order was confirmed by officials like President Obama and Senator Feinstein, who said it was a “routine” 90 day reauthorization of a program started in 2007.
Currently, four bills have been introduced to fix the problem: one by Senator Leahy, Senator Sanders, Senators Udall and Wyden, and Rep. Conyers. The well-intentioned bills try to address the Justice Department’s (DOJ) abusive interpretations of Section 215 (more formally, 50 USC § 1861) apparently approved by the reclusive Foreign Intelligence Surveillance Court (FISA Court) in secret legal opinions.
Sadly, all of them fail to fix the problem of unconstitutional domestic spying—not only because they ignore the PRISM program, which uses Section 702 of the Foreign Intelligence Surveillance Act (FISA) and collects Americans’ emails and phone calls—but because the legislators simply don’t have key information about how the government interprets and uses the statute. Congress must find out more about the programs before it can propose fixes. That’s why a coalition of over 100 civil liberties groups and over half a million people are pushing for a special congressional investigatory committee, more transparency, and more accountability.
More Information Needed
The American public has not seen the secret law and legal opinions supposedly justifying the unconstitutional NSA spying. Just this week the New York Times and Wall Street Journal (paywall) reported that the secret law includes dozens of opinions—some of which are hundreds of pages long—gutting the Fourth Amendment. The special investigative committee must find out necessary information about the programs and about the opinions. Or, at the very least, extant committees like the Judiciary or Oversight Committees must conduct more open hearings and release more information to the public. Either way, the process must start with the publication of the secret legal opinions of the FISA Court, and the opinions drafted by the Department of Justice’s Office of Legal Counsel (OLC).
Why the Legislation Fails to Fix Section 215
Some of the bills try to narrow Section 215 by heightening the legal standard for the government to access information. Currently, the FBI can obtain “any tangible thing”—including, surprisingly, intangible business records about Americans—that is “relevant”
to an authorized investigation to obtain foreign intelligence information not concerning a US person or to protect against international terrorism or clandestine intelligence activities
with a statement of facts showing that there are “reasonable grounds to believe” that the tangible things are “relevant” to such an investigation. Bills by Rep. Conyers and Sen. Sanders attempt to heighten the standard by using pre-9/11 language mandating “specific and articulable facts” about why the FBI needs the records. Rep. Conyers goes one step further than Sen. Sanders by forcing the FBI to include why the records are “material,” or significantly relevant, to an investigation.
By heightening the legal standard, the legislators intend for the FBI to show exactly why a mass database of calling records is relevant to an investigation. But it’s impossible to know if these fixes will stop the unconstitutional spying without knowing how the government defines key terms in the bills. The bills by Sen. Leahy and Sens. Udall and Wyden do not touch this part of the law.
Failure to Stop the Unconstitutional Collection of “Bulk Records”
Sens. Udall, Wyden, and Leahy use a different approach; their bills mandate every order include why the records “pertain to” an individual or are “relevant to” an investigation. Collectively this aims—but most likely fails—to stop the government from issuing “bulk records orders” like the Verizon order. Senator Sanders travels a different path by requiring the government specify why “each of” the business records is related to an investigation; however, it’s also unclear if this stops the spying. Yet again, Rep. Conyers’ bill provides the strongest language as it deletes ambiguous clauses and forces all requests “pertain only to” an individual; however even the strongest language found in these bills will probably not stop the unconstitutional spying.
Legislators Are Drafting in the Dark
Unfortunately, legislators are trying to edit the statutory text before a thorough understanding of how the government is using key definitions in the bill or how the FISA Court is interpreting the statute. For instance, take the word “relevant.” The “tangible thing” produced under a Section 215 order must be “relevant” to the specific type of investigation mentioned above. But the Verizon order requires every Verizon customer’s call history.
The New York Times confirmed the secret FISA court was persuaded by the government that this information is somehow relevant to such an investigation. The Wall Street Journal (paywall), quoting “people familiar with the [FISA Court] rulings” wrote: “According to the [FISA Court], the special nature of national-security and terrorism-prevention cases means ‘relevant’ can have a broader meaning for those investigations.” Obviously, only severely strained legalese—similar to the Department of Justice’s re-definition of “imminent“—could justify such an argument. And the Fourth Amendment was created to protect against this exact thing—vague, overbroad “general warrants” (.pdf).
If “relevant” has been defined to permit bulk data collection, requiring more or better facts about why is unlikely to matter. Even Sen. Sanders’ approach—which would require “each” record be related to an investigation—could fall short if “relevance” is evaluated in terms of the database as a whole, rather than its individual records. This is just one example of why the secret FISA Court decisions and OLC opinions must be released. Without them, legislators cannot perform one of their jobs: writing legislation.
Congress Must Obtain and Release the Secret Law
The actions revealed by the government strike at the very core of our Constitution. Further, the majority of Congress is unaware about the specific language and legal interpretations used to justify the spying. Without this information, Congress can only legislate in the dark. It’s time for Congress to investigate these matters to the fullest extent possible. American privacy should not be held hostage by secrecy. Tell Congress now to push for an special investigative committee, more transparency, and more accountability.
Related article
- FISA court process must be unveiled (politico.com)
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From the Archives
A superpower and “the world’s sickest warrior state”
By Paul J. Balles | March 8, 2010
Living through five or six major wars has hardened me to what I thought were the extremes of inhuman cruelty and brutality.
Two things made those extremes almost bearable: the brutality always revealed – at least according to the media coverage – the viciousness of the enemy. It was therefore quite understandable when our “brave men and women” pulverized the enemy.
Films of Japanese torturing captive Americans somehow justified holding Japanese Americans in internment camps during World War II; and only a small percentage of Americans found the bombing of Hiroshima and Nagasaki unreasonably vengeful at best, at worst, depraved.
The media giants in America portrayed the North Koreans as barbaric beasts with their captives, quite unlike their southern counterpoints – our allies during the Korean War. No one ever felt the need to explain how the South Koreans were a civilized breed while the North Koreans were absolute savages, at least according to the official line.
In Vietnam, our warriors justifiably (or so the media made us believe) dropped napalm on the North Vietnamese who had the gall to hide in villages and tunnels to ravage our invaders. At least it was accepted practice until some rogue photojournalist filmed a young girl screaming down a Vietnamese road in flames. … continue
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