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Court Chooses to Ignore Overwhelming Evidence of NSA’s Mass Internet Spying

Big Brother is watching you.

By Ashley Gorski | ACLU | October 24, 2015

A federal district court yesterday dismissed Wikimedia v. NSA, a lawsuit brought by the ACLU on behalf of a broad group of educational, legal, human rights, and media organizations whose communications are swept up by the NSA’s unprecedented Internet dragnet.

Our lawsuit concerns the NSA’s “upstream” surveillance, which involves the mass interception and searching of Americans’ international Internet communications. The court held that our clients lacked “standing” to bring suit, because they had not plausibly alleged that their communications were being monitored by the NSA. That’s just plain wrong.

The court’s opinion relies heavily on the Supreme Court’s decision in a previous ACLU lawsuit, Amnesty v. Clapper, a challenge to warrantless surveillance under the FISA Amendments Act of 2008. In February 2013, the Supreme Court dismissed that case on the grounds that the plaintiffs could not prove that they had communicated with the NSA’s targets.

But as we explained in court, our current challenge to the NSA’s warrantless spying is very different than the last one. Among other reasons, Clapper was decided prior to the Snowden revelations and extensive government disclosures about upstream surveillance. These revelations fundamentally changed the equation. Since Clapper, the public has learned that the NSA is not surveilling only its targets — it is instead surveilling virtually everyone, looking for information about those targets.

Some early takeaways from the district court’s opinion:

1.The court misunderstands how upstream surveillance is fundamentally different from and much more intrusive than the surveillance considered by the Supreme Court in Clapper.

Upstream surveillance is accomplished through the installation of devices directly on the Internet “backbone” — the network of high-capacity cables, switches, and routers across which Internet traffic travels. One particularly disturbing feature of upstream spying is known as “about” surveillance. Through this surveillance, the NSA is not simply plucking the communications to or from terrorists, spies, or other targets. Instead, it’s copying and searching through the contents of nearly everyone’s international communications, looking for information about its many targets. When the Supreme Court considered warrantless surveillance in Clapper, it was focused on whether the plaintiffs communicated with targets. At that time, the public had no idea that the NSA was essentially opening everyone’s international emails. Indeed, contrary to the district court’s understanding, “about” surveillance is in no way targeted:

PCLOB Report

2. The court ignores how Internet communications are structured — and why that requires the government to intercept at least some of our clients’ trillion-plus international communications.

Collectively, our clients engage in more than one trillion international Internet communications each year, with individuals in virtually every country on Earth. As we explained in our complaint, given the structure of the Internet, it is virtually impossible for the NSA to conduct upstream surveillance without intercepting at least some of plaintiffs’ communications. Yet the court dismissed these allegations, characterizing them as having “no basis in fact.”

complaint

3. Given how much is in the public record about upstream surveillance, our clients’ allegations are not “speculative” or “hypothetical.”

As the court acknowledged, at this early stage of the litigation, plaintiffs have to satisfy only a very low threshold: plausibility. Especially considering what’s publicly known about how upstream surveillance works, and the volume and distribution of our clients’ communications, their allegations are more than plausible.

Alternative document

4. The court’s opinion would insulate government surveillance from any legal challenge, except in cases where the government has already admitted its reliance on a particular program.

Although the court recognized that “no government surveillance program should be immunized from judicial scrutiny,” its analysis would do precisely that in the overwhelming majority of cases. If the court’s reasoning were correct, then the only people who could challenge NSA surveillance would be those told by the government they were spied on — a result at odds with well-established precedent and our system of checks and balances:

Upstream surveillance

Our clients’ standing doesn’t depend on a supposition. There’s no question that the NSA is capturing and searching through their communications. That’s something the court — and everyone else — should find extremely disconcerting.

October 24, 2015 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , | Leave a comment

Obama gives himself control of all communication systems in America

RT | July 11, 2013

US President Barack Obama quietly signed his name to an Executive Order on Friday, allowing the White House to control all private communications in the country in the name of national security.

President Obama released his latest Executive Order on Friday, July 6, a 2,205-word statement offered as the “Assignment of National Security and Emergency Preparedness Communications Functions.” And although the president chose not to commemorate the signing with much fanfare, the powers he provides to himself and the federal government under the latest order are among the most far-reaching yet of any of his executive decisions.

“The Federal Government must have the ability to communicate at all times and under all circumstances to carry out its most critical and time sensitive missions,” the president begins the order. “Survivable, resilient, enduring and effective communications, both domestic and international, are essential to enable the executive branch to communicate within itself and with: the legislative and judicial branches; State, local, territorial and tribal governments; private sector entities; and the public, allies and other nations.”

President Obama adds that it is necessary for the government to be able to reach anyone in the country during situations it considers critical, writing, “Such communications must be possible under all circumstances to ensure national security, effectively manage emergencies and improve national resilience.” Later the president explains that such could be done by establishing a “joint industry-Government center that is capable of assisting in the initiation, coordination, restoration and reconstitution of NS/EP [national security and emergency preparedness] communications services or facilities under all conditions of emerging threats, crisis or emergency.”

“The views of all levels of government, the private and nonprofit sectors, and the public must inform the development of NS/EP communications policies, programs and capabilities,” he adds.

On the government’s official website for the National Communications Systems, the government explains that that “infrastructure includes wireline, wireless, satellite, cable, and broadcasting, and provides the transport networks that support the Internet and other key information systems,” suggesting that the president has indeed effectively just allowed himself to control the country’s Internet access.

In order to allow the White House to reach anyone within the US, the president has put forth a plan to establish a high-level committee calling from agents with the Department of Homeland Security, Pentagon, Federal Communications Commission and other government divisions to ensure that his new executive order can be implemented.

In explaining the order, the Electronic Privacy Information Center (EPIC) writes that the president has authorized the DHS “the authority to seize private facilities when necessary, effectively shutting down or limiting civilian communications.”

In Section 5 of his order, President Obama outlines the specific department and agency responsibilities that will see through his demands. In a few paragraphs, President Obama explains that Executive Committee that will oversee his order must be supplied with “the technical support necessary to develop and maintain plans adequate to provide for the security and protection of NS/EP communications,” and that that same body will be in tasked with dispatching that communiqué “to the Federal Government and State, local, territorial and trial governments,” by means of “commercial, Government and privately owned communications resources.”

Later, the president announces that the Department of Homeland Security will be tasked with drafting a plan during the next 60 days to explain how the DHS will command the government’s Emergency Telecommunications Service, as well as other telecom conduits. In order to be able to spread the White House’s message across the country, President Obama also asks for the purchasing of equipment and services that will enable such.

July 11, 2013 Posted by | Civil Liberties, Full Spectrum Dominance, Progressive Hypocrite | , , , , , , | 2 Comments

NSA Can Neither Confirm Nor Deny Anything Without Causing ‘Exceptionally Grave Damage’ To National Security

By Tim Cushing | techdirt | June 26, 2013

When you find out your own government is harvesting your phone metadata and internet activity, what do you do? If you’re Jeff Larson at ProPublica, you file a FOIA request in hopes of getting the NSA to cough up some of the info it’s collected on you.

Shortly after the Guardian and Washington Post published their Verizon and PRISM stories, I filed a freedom of information request with the NSA seeking any personal data the agency has about me. I didn’t expect an answer, but yesterday I received a letter signed by Pamela Phillips, the Chief FOIA Officer at the agency (which really freaked out my wife when she picked up our mail).

Yes, Larson received three pages of unredacted excuses and explanations as to why the NSA would not be letting him in on what it had gathered, as well as some circuitous explanations as to why it was unable to confirm the existence of the data he requested.

The letter, a denial, includes what is known as a Glomar response — neither a confirmation nor a denial that the agency has my metadata. It also warns that any response would help “our adversaries”:

Any positive or negative response on a request-by-request basis would allow our adversaries to accumulate information and draw conclusions about the NSA’s technical capabilities, sources, and methods. Our adversaries are likely to evaluate all public responses related to these programs. Were we to provide positive or negative responses to requests such as yours, our adversaries’ compilation of the information provided would reasonably be expected to cause exceptionally grave damage to the national security.”

“Reasonably be expected to cause exceptionally grave damage to the national security…” That’s a beauty, as is the entire paragraph. Instead of “Yes, we have some stuff but we can’t let you look at it,” or “No, we don’t have your stuff, but thanks for asking,” we get “We can neither confirm nor deny we have your stuff because a simple yes or no would give terrorists the upper hand.” Alternately: “Sorry we can’t be more specific. Can I offer you some fear instead?” Fortunately, as Larson notes, he won’t be charged a fee for this non-answer to his request.

The NSA’s FOIA responder takes a little time to imply that the media possibly has all the facts wrong.

As you may be also be aware, there has been considerable speculation about two NSA intelligence programs in the press /media.

If by “considerable speculation,” she means “actual document leaks,” then we’re on the right track. Yes, there’s been plenty of speculation but there are several exposed documents that give this speculation a solid starting point. The non-confirmation/non-denial continues, spilling onto the next page after a brief respite where the NSA rolls out the talking points and proclaims everything to be firmly above-board.

Therefore, your request is denied because the fact or the existence or non-existence of responsive records is a currently and properly classified matter in accordance with Executive order 13526, as set forth in subparagraph of section 1.4.

The NSA: so secure even non-existing records are classified.

The response letter explains the other reasons everything remains under wraps. Larson is welcome to file an appeal but the lengthy list of exemptions included in this response gives the indication that actually doing so would be a waste of everyone’s time. This leaves Larson with only one legitimate option, the same option the ACLU and EFF find themselves pursuing with increasing frequency.

So where does this leave me? According to Aaron Mackey, a staff attorney at the Reporter’s Committee for Freedom of the Press, “If you wanted to see those records you would have to file a lawsuit.”

That’s the way it goes in the surveillance state. Information doesn’t want to be free. It wants to be litigated.

June 26, 2013 Posted by | Civil Liberties, Deception, Full Spectrum Dominance | , , , , | 2 Comments

Time to Raise Political Asylum Quotas for Americans?

US Should Top the List of the International Quota for Political Refugees

By Sybel Edmonds | Boiling Frogs Post | June 17, 2013

I don’t know how you feel about surveys, ranking or indexes, but whether you follow them or not, you must be aware of how we’ve been falling steadily as a nation. Those of you who follow lists-surveys and global indexes, let’s admit it- as a nation we have not been going up on most global ranking lists – in fact, just the opposite.

We have been going down on the list of the World’s Least Corruption Nations-way down. We have been dropping continuously when it comes to our ranking in the education arena. We have been dropping royally when it comes to Healthcare Systems. When it comes to World Press Freedom, we are embarrassingly low, behind Cape Verde, Cyprus, and even trailing Mali, Tanzania, El Salvador, Botswana and Comoros!! We didn’t even make it onto the ridiculous list of the top ten nations’ national happiness index. 

All these competitive areas aside, there is one list we should be climbing steadily and rapidly. Even if you don’t care about all those other global lists you must care about this particular one; for your own good and even your survival. I am talking about a list pertaining to a nation’s status as to its need for acceptance of its political refugees by the global community.

Please don’t laugh or shrug off this suggestion. Instead, pause and think about our whistleblowers in jail or those awaiting the results of their prosecutions. Remember the journalists and reporters being targeted and investigated by our national police. Recall our new laws recently put in place to secretly and indefinitely detain any American citizen (that is you and me)-without any warrant or even having to show any justification. Think about the still-growing national no-fly list. Remind yourself of torture as our government’s common practice; abroad and here at home. Take a look at your land line, cell, laptop, fax and I-Pad as tools used by our government to illegally-secretly-continuously spy on you.

Now you see what I am talking about.

If you still find the notion difficult to accept, then think of the dozens of Hollywood movie classics on the Stasi and KGB. Remember how people climbed the wall or crawled through tunnels to escape the constant surveillance and arbitrary detentions of their national police. Their national police cited national security and unity. Now consider how the NSA and dozens of mega-corporations have you under surveillance illegally; around the clock. Our national police have been citing national security.

How do you think our camps for our citizens to be detained under our new national law, NDAA, would be different than those set up by the Stasi, KGB and the like?

You remember how other western nations received the lucky escapees from the fascistic or communist regimes with open arms? Well, now they should be receiving us, our escapees; with open arms.

They have to. They must. Not doing it would be in violation of their laws and their international pledge:

Asylum is granted to people fleeing persecution or serious harm in their own country and therefore in need of international protection. Asylum is a fundamental right; granting it is an international obligation, first recognized in the 1951 Geneva Convention on the protection of refugees. In the EU, an area of open borders and freedom of movement, countries share the same fundamental values and States need to have a joint approach to guarantee high standards of protection for refugees. Procedures must at the same time be fair and effective throughout the EU and impervious to abuse. With this in mind, the EU States have committed to establishing a Common European Asylum System.

…

And here is the international law describing who qualifies for international protection-Based on UN Convention & Protocols[Emphasis Mine]:

Grounded in Article 14 of the Universal Declaration of human rights 1948, which recognizes the right of persons to seek asylum from persecution in other countries, the United Nations Convention relating to the Status of Refugees, adopted in 1951, is the centerpiece of international refugee protection today.(1)

A refugee, according to the Convention, is someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

…

Today, we, the citizens of the United States of America, face prosecution, persecution, torture, and possible assassination for engaging in certain journalistic or even Good Samaritan reporting of illegal-criminal-unconstitutional activities by those trusted with our nation’s health, wealth, and security.

Our government has been engaged in ongoing torture and human rights violations at home and abroad. Whether it is the globally recognized USA halls-of-shame in Guantanamo, Bagram and Abu Ghraib, or, secretly carried out atrocities in our government’s  black cites around the globe, or, tortures inflicted on a citizen here at home  who is guilty of exposing government criminalities, our government is now recognized and acknowledged as a Supreme Torturer.

This situation now is being extended to those of us who may have read or disseminated information originally gathered and distributed by others. Today our whistleblowers-truth tellers-Good Samaritans are thrown behind bars, while our criminals who engage in robbing our taxpayers of billions of dollars, or those who engage in torture and murder, are highly protected and handsomely awarded by our rulers.

We United States Citizens have been deprived of expressing collective dissent even through the most peaceful means and in the  most pacifist manner. Our participation or membership in social groups or gatherings that challenge illegal wars or anti humanitarian practices land us on our government’s never-defined ‘enemy & terrorist’ list, with consequences ranging from being prohibited from traveling , to having our homes raided and families intimidated by armed government militia, to being persecuted and thrown before a federal grand jury to face possible incarceration for our beliefs.

We Americans, every single one of us, are treated as potential terrorists, are considered guilty with no way to prove otherwise. We all are subjected to round the clock warrantless-illegal surveillance , and degrading violation-probing-groping searches as mandatory requirements for our travel.

I believe, and you should as well, that we have more than enough cases of recorded atrocities, criminalities and violations inflicted upon us by our very own government to expect a substantial increase in our nation’s status-ranking for acceptance of our political refugees.

I know, and you do too, that there are many nations with governmental practices worse than ours. However, our bad government is much bigger than their bad governments, with much higher capabilities. When you have a huge government like ours, with incredible technological and weaponry capabilities as ours does, you risk far graver atrocities than with smaller bad governments with limited capabilities. That’s a fact. Our big bad government is far worse than their small bad government. And that should increase and elevate our nation’s ranking in the international community’s political refugee quota-status.

As for the so-called liberal nations: we urge you to remember the Stasi and the suffocating repression suffered by the East Germans, and then, go ahead and multiply that by a six-digit number of your choice. Any number will do, that is, as long as it has six digits. Our technology-enabled Stasis can tap, record, analyze and save billions of communications. Our rulers’ mega corporate collaborators can pull the plug on millions of us with no recourse available or even imaginable. Our mega military’s ferocious drones can pinpoint and turn us into ashes with a secret order issued on a simple letterhead.

We implore the international community to grant us, the Citizens of the United States of America, ‘High Priority Political Asylum’ status. At least consider a swapping arrangement whereby the international community’s highest-level criminals, con artists, professional swindlers, and or psychotic serial torturers are sent here where they can find an agreeable working-practicing environment and unlimited government protection and rewards, in exchange for those of us in search of peace, a reasonable degree of freedom and justice.

 Sibel Edmonds is the Publisher & Editor of Boiling Frogs Post and the author of the Memoir Classified Woman: The Sibel Edmonds Story. She is the recipient of the 2006 PEN Newman’s Own First Amendment Award for her “commitment to preserving the free flow of information in the United States in a time of growing international isolation and increasing government secrecy”

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June 19, 2013 Posted by | Civil Liberties, Full Spectrum Dominance, Subjugation - Torture, Timeless or most popular | , , , , , , | Comments Off on Time to Raise Political Asylum Quotas for Americans?

ACLU Comment on Obama’s National Security Speech

By Anthony D. Romero | ACLU | May 23, 2013

President Obama is right to say that we cannot be on a war footing forever, but the time to take our country off the global warpath and fully restore the rule of law is now, not at some indeterminate future point. Four years into his presidency, President Obama has finally taken the first steps to jump-start his administration’s effort to make good on early campaign promises to close Guantánamo and recognized the human cost of failing to act. These are encouraging and noteworthy actions.

To the extent the speech signals an end to signature strikes, recognizes the need for congressional oversight, and restricts the use of drones to threats against the American people, the developments on targeted killings are promising. Yet the president still claims broad authority to carry out targeted killings far from any battlefield, and there is still insufficient transparency. We continue to disagree fundamentally with the idea that due process requirements can be satisfied without any form of judicial oversight by regular federal courts.

We are particularly gratified that President Obama embraced our recommendations to use his authority to allow prompt transfer and release of Guantánamo detainees who pose no national security threat and that have been cleared by the military and intelligence agencies. We also applaud his appointment of a high level official to supervise the process for closing Guantánamo once and for all.

But there are other problems that must still be addressed. The unconstitutional military commissions must be shuttered, not brought to the United States. While the president expressed appropriate concern about indefinite detention, he offered no clear plan for ending this unconstitutional policy for those who have not been tried or cleared for release.

President Obama’s efforts to repair his legacy in the eyes of future historians will require that he continue to double down if he is to fully restore this nation’s standing at home and abroad. The ACLU realizes that Congress has thrown significant barriers in closing Guantánamo. But in some areas Congress has been more progressive, having recently demanded legal memoranda that claim to authorize the illegal killing program. The ACLU stands ready to work with, and if necessary do battle with, those elements of government that impede our nation’s obligations to honor the rule of law and to protect our values while safeguarding our security.

May 24, 2013 Posted by | Civil Liberties, Progressive Hypocrite, Subjugation - Torture, War Crimes | , , , | Comments Off on ACLU Comment on Obama’s National Security Speech

The Nearly $1 Trillion National Security Budget

By Chris Hellman and Mattea Kramer | TomDispatch | May 22, 2012

Recent months have seen a flurry of headlines about cuts (often called “threats”) to the U.S. defense budget. Last week, lawmakers in the House of Representatives even passed a bill that was meant to spare national security spending from future cuts by reducing school-lunch funding and other social programs.

Here, then, is a simple question that, for some curious reason, no one bothers to ask, no less answer: How much are we spending on national security these days? With major wars winding down, has Washington already cut such spending so close to the bone that further reductions would be perilous to our safety?

In fact, with projected cuts added in, the national security budget in fiscal 2013 will be nearly $1 trillion — a staggering enough sum that it’s worth taking a walk through the maze of the national security budget to see just where that money’s lodged.

If you’ve heard a number for how much the U.S. spends on the military, it’s probably in the neighborhood of $530 billion. That’s the Pentagon’s base budget for fiscal 2013, and represents a 2.5% cut from 2012. But that $530 billion is merely the beginning of what the U.S. spends on national security. Let’s dig a little deeper.

The Pentagon’s base budget doesn’t include war funding, which in recent years has been well over $100 billion. With U.S. troops withdrawn from Iraq and troop levels falling in Afghanistan, you might think that war funding would be plummeting as well.  In fact, it will drop to a mere $88 billion in fiscal 2013. By way of comparison, the federal government will spend around $64 billion on education that same year.

Add in war funding, and our national security total jumps to $618 billion. And we’re still just getting started.

The U.S. military maintains an arsenal of nuclear weapons. You might assume that we’ve already accounted for nukes in the Pentagon’s $530 billion base budget.  But you’d be wrong. Funding for nuclear weapons falls under the Department of Energy (DOE), so it’s a number you rarely hear. In fiscal 2013, we’ll be spending $11.5 billion on weapons and related programs at the DOE. And disposal of nuclear waste is expensive, so add another $6.4 billion for weapons cleanup.

Now, we’re at $636 billion and counting.

How about homeland security? We’ve got to figure that in, too. There’s the Department of Homeland Security (DHS), which will run taxpayers $35.5 billion for its national security activities in fiscal 2013. But there’s funding for homeland security squirreled away in just about every other federal agency as well.  Think, for example, about programs to secure the food supply, funded through the U.S. Department of Agriculture. So add another $13.5 billion for homeland security at federal agencies other than DHS.

That brings our total to $685 billion.

Then there’s the international affairs budget, another obscure corner of the federal budget that just happens to be jammed with national security funds. For fiscal 2013, $8 billion in additional war funding for Iraq and Afghanistan is hidden away there. There’s also $14 billion for what’s called “international security assistance” — that’s part of the weapons and training Washington offers foreign militaries around the world. Plus there’s $2 billion for “peacekeeping operations,” money U.S. taxpayers send overseas to help fund military operations handled by international organizations and our allies.

That brings our national security total up to $709 billion.

We can’t forget the cost of caring for our nation’s veterans, including those wounded in our recent wars. That’s an important as well as hefty share of national security funding. In 2013, veterans programs will cost the federal government $138 billion.

That brings us to $847 billion — and we’re not done yet.

Taxpayers also fund pensions and other retirement benefits for non-veteran military retirees, which will cost $55 billion next year. And then there are the retirement costs for civilians who worked at the Department of Defense and now draw pensions and benefits. The federal government doesn’t publish a number on this, but based on the share of the federal workforce employed at the Pentagon, we can estimate that its civilian retirees will cost taxpayers around $21 billion in 2013.

By now, we’ve made it to $923 billion — and we’re finally almost done.

Just one more thing to add in, a miscellaneous defense account that’s separate from the defense base budget. It’s called “defense-related activities,” and it’s got $8 billion in it for 2013.

That brings our grand total to an astonishing $931 billion.

And this will turn out to be a conservative figure. We won’t spend less than that, but among other things, it doesn’t include the interest we’re paying on money we borrowed to fund past military operations; nor does it include portions of the National Aeronautics and Space Administration that are dedicated to national security. And we don’t know if this number captures the entire intelligence budget or not, because parts of intelligence funding are classified.

For now, however, that whopping $931 billion for fiscal year 2013 will have to do. If our national security budget were its own economy, it would be the 19th largest in the world, roughly the size of Australia’s. Meanwhile, the country with the next largest military budget, China, spends a mere pittance by comparison. The most recent estimate puts China’s military funding at around $136 billion.

Or think of it this way: National security accounts for one quarter of every dollar the federal government is projected to spend in 2013. And if you pull trust funds for programs like Social Security out of the equation, that figure rises to more than one third of every dollar in the projected 2013 federal budget.

Yet the House recently passed legislation to spare the defense budget from cuts, arguing that the automatic spending reductions scheduled for January 2013 would compromise national security. Secretary of Defense Leon Panetta has said such automatic cuts, which would total around $55 billion in 2013, would be “disastrous” for the defense budget. To avoid them, the House would instead pull money from the National School Lunch Program, the Children’s Health Insurance Program, Medicaid, food stamps, and programs like the Social Services Block Grant, which funds Meals on Wheels, among other initiatives.

Yet it wouldn’t be difficult to find savings in that $931 billion.  There’s plenty of low-hanging fruit, starting with various costly weapons systems left over from the Cold War, like the Virginia class submarine, the V-22 Osprey tiltrotor aircraft, the missile defense program, and the most expensive weapons system on the planet, the F-35 jet fighter. Cutting back or cancelling some of these programs would save billions of dollars annually.

In fact, Congress could find much deeper savings, but it would require fundamentally redefining national security in this country. On this issue, the American public is already several steps ahead of Washington. Americans overwhelmingly think that national security funding should be cut — deeply.

If lawmakers don’t pay closer attention to their constituents, we already know the alternative: pulling school-lunch funding.

Chris Hellman and Mattea Kramer are research analysts at the National Priorities Project. They wrote the soon-to-be-published book A People’s Guide to the Federal Budget, and host weekly two-minute Budget Brief videos on YouTube.

Copyright 2012 Chris Hellman and Mattea Kramer
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May 22, 2012 Posted by | Deception, Economics, Militarism | , , , , , , | 1 Comment