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Paul Merrell

Revealed: How DOJ Gagged Google over Surveillance of WikiLeaks Volunteer - The Intercept - 0 views

firstlook.org/...appelbaum-google-investigation

surveillance state DoJ Appelbaum-email Wikileaks

shared by Paul Merrell on 21 Jun 15 - No Cached
  • The Obama administration fought a legal battle against Google to secretly obtain the email records of a security researcher and journalist associated with WikiLeaks. Newly unsealed court documents obtained by The Intercept reveal the Justice Department won an order forcing Google to turn over more than one year’s worth of data from the Gmail account of Jacob Appelbaum (pictured above), a developer for the Tor online anonymity project who has worked with WikiLeaks as a volunteer. The order also gagged Google, preventing it from notifying Appelbaum that his records had been provided to the government. The surveillance of Appelbaum’s Gmail account was tied to the Justice Department’s long-running criminal investigation of WikiLeaks, which began in 2010 following the transparency group’s publication of a large cache of U.S. government diplomatic cables. According to the unsealed documents, the Justice Department first sought details from Google about a Gmail account operated by Appelbaum in January 2011, triggering a three-month dispute between the government and the tech giant. Government investigators demanded metadata records from the account showing email addresses of those with whom Appelbaum had corresponded between the period of November 2009 and early 2011; they also wanted to obtain information showing the unique IP addresses of the computers he had used to log in to the account.
  • The Justice Department argued in the case that Appelbaum had “no reasonable expectation of privacy” over his email records under the Fourth Amendment, which protects against unreasonable searches and seizures. Rather than seeking a search warrant that would require it to show probable cause that he had committed a crime, the government instead sought and received an order to obtain the data under a lesser standard, requiring only “reasonable grounds” to believe that the records were “relevant and material” to an ongoing criminal investigation. Google repeatedly attempted to challenge the demand, and wanted to immediately notify Appelbaum that his records were being sought so he could have an opportunity to launch his own legal defense. Attorneys for the tech giant argued in a series of court filings that the government’s case raised “serious First Amendment concerns.” They noted that Appelbaum’s records “may implicate journalistic and academic freedom” because they could “reveal confidential sources or information about WikiLeaks’ purported journalistic or academic activities.” However, the Justice Department asserted that “journalists have no special privilege to resist compelled disclosure of their records, absent evidence that the government is acting in bad faith,” and refused to concede Appelbaum was in fact a journalist. It claimed it had acted in “good faith throughout this criminal investigation, and there is no evidence that either the investigation or the order is intended to harass the … subscriber or anyone else.” Google’s attempts to fight the surveillance gag order angered the government, with the Justice Department stating that the company’s “resistance to providing the records” had “frustrated the government’s ability to efficiently conduct a lawful criminal investigation.”
  • The Justice Department wanted to keep the surveillance secret largely because of an earlier public backlash over its WikiLeaks investigation. In January 2011, Appelbaum and other WikiLeaks volunteers’ – including Icelandic parlimentarian Birgitta Jonsdottir – were notified by Twitter that the Justice Department had obtained data about their accounts. This disclosure generated widepread news coverage and controversy; the government says in the unsealed court records that it “failed to anticipate the degree of  damage that would be caused” by the Twitter disclosure and did not want to “exacerbate this problem” when it went after Appelbaum’s Gmail data. The court documents show the Justice Department said the disclosure of its Twitter data grab “seriously jeopardized the [WikiLeaks] investigation” because it resulted in efforts to “conceal evidence” and put public pressure on other companies to resist similar surveillance orders. It also claimed that officials named in the subpeona ordering Twitter to turn over information were “harassed” after a copy was published by Intercept co-founder Glenn Greenwald at Salon in 2011. (The only specific evidence of the alleged harassment cited by the government is an email that was sent to an employee of the U.S. Attorney’s office that purportedly said: “You guys are fucking nazis trying to controll [sic] the whole fucking world. Well guess what. WE DO NOT FORGIVE. WE DO NOT FORGET. EXPECT US.”)
  • ...4 more annotations...
  • Google accused the government of hyperbole and argued that the backlash over the Twitter order did not justify secrecy related to the Gmail surveillance. “Rather than demonstrating how unsealing the order will harm its well-publicized investigation, the government lists a parade of horribles that have allegedly occurred since it unsealed the Twitter order, yet fails to establish how any of these developments could be further exacerbated by unsealing this order,” wrote Google’s attorneys. “The proverbial toothpaste is out of the tube, and continuing to seal a materially identical order will not change it.” But Google’s attempt to overturn the gag order was denied by magistrate judge Ivan D. Davis in February 2011. The company launched an appeal against that decision, but this too was rebuffed, in March 2011, by District Court judge Thomas Selby Ellis, III.
  • The government agreed to unseal some of the court records on Apr. 1 this year, and they were apparently turned over to Appelbaum on May 14 through a notification sent to his Gmail account. The files were released on condition that they would contain some redactions, which are bizarre and inconsistent, in some cases censoring the name of “WikiLeaks” from cited public news reports. Not all of the documents in the case – such as the original surveillance orders contested by Google – were released as part of the latest disclosure. Some contain “specific and sensitive details of the investigation” and “remain properly sealed while the grand jury investigation continues,” according to the court records from April this year. Appelbaum, an American citizen who is based in Berlin, called the case “a travesty that continues at a slow pace” and said he felt it was important to highlight “the absolute madness in these documents.”
  • He told The Intercept: “After five years, receiving such legal documents is neither a shock nor a needed confirmation. … Will we ever see the full documents about our respective cases? Will we even learn the names of those signing so-called legal orders against us in secret sealed documents? Certainly not in a timely manner and certainly not in a transparent, just manner.” The 32-year-old, who has recently collaborated with Intercept co-founder Laura Poitras to report revelations about National Security Agency surveillance for German news magazine Der Spiegel, said he plans to remain in Germany “in exile, rather than returning to the U.S. to experience more harassment of a less than legal kind.”
  • “My presence in Berlin ensures that the cost of physically harassing me or politically harassing me is much higher than when I last lived on U.S. soil,” Appelbaum said. “This allows me to work as a journalist freely from daily U.S. government interference. It also ensures that any further attempts to continue this will be forced into the open through [a Mutal Legal Assistance Treaty] and other international processes. The German goverment is less likely to allow the FBI to behave in Germany as they do on U.S. soil.” The Justice Department’s WikiLeaks investigaton is headed by prosecutors in the Eastern District of Virginia. Since 2010, the secretive probe has seen activists affiliated with WikiLeaks compelled to appear before a grand jury and the FBI attempting to infiltrate the group with an informant. Earlier this year, it was revealed that the government had obtained the contents of three core WikiLeaks staffers’ Gmail accounts as part of the investigation.
Paul Merrell

EFF Pries More Information on Zero Days from the Government's Grasp | Electronic Fronti... - 0 views

www.eff.org/...cy-zero-days-governments-grasp

surveillance state zero-day-exploits FOIA litigation

shared by Paul Merrell on 26 Jan 16 - No Cached
  • Until just last week, the U.S. government kept up the charade that its use of a stockpile of security vulnerabilities for hacking was a closely held secret.1 In fact, in response to EFF’s FOIA suit to get access to the official U.S. policy on zero days, the government redacted every single reference to “offensive” use of vulnerabilities. To add insult to injury, the government’s claim was that even admitting to offensive use would cause damage to national security. Now, in the face of EFF’s brief marshaling overwhelming evidence to the contrary, the charade is over. In response to EFF’s motion for summary judgment, the government has disclosed a new version of the Vulnerabilities Equities Process, minus many of the worst redactions. First and foremost, it now admits that the “discovery of vulnerabilities in commercial information technology may present competing ‘equities’ for the [government’s] offensive and defensive mission.” That might seem painfully obvious—a flaw or backdoor in a Juniper router is dangerous for anyone running a network, whether that network is in the U.S. or Iran. But the government’s failure to adequately weigh these “competing equities” was so severe that in 2013 a group of experts appointed by President Obama recommended that the policy favor disclosure “in almost all instances for widely used code.” [.pdf].
  • The newly disclosed version of the Vulnerabilities Equities Process (VEP) also officially confirms what everyone already knew: the use of zero days isn’t confined to the spies. Rather, the policy states that the “law enforcement community may want to use information pertaining to a vulnerability for similar offensive or defensive purposes but for the ultimate end of law enforcement.” Similarly it explains that “counterintelligence equities can be defensive, offensive, and/or law enforcement-related” and may “also have prosecutorial responsibilities.” Given that the government is currently prosecuting users for committing crimes over Tor hidden services, and that it identified these individuals using vulnerabilities called a “Network Investigative Technique”, this too doesn’t exactly come as a shocker. Just a few weeks ago, the government swore that even acknowledging the mere fact that it uses vulnerabilities offensively “could be expected to cause serious damage to the national security.” That’s a standard move in FOIA cases involving classified information, even though the government unnecessarily classifies documents at an astounding rate. In this case, the government relented only after nearly a year and a half of litigation by EFF. The government would be well advised to stop relying on such weak secrecy claims—it only risks undermining its own credibility.
  • The new version of the VEP also reveals significantly more information about the general process the government follows when a vulnerability is identified. In a nutshell, an agency that discovers a zero day is responsible for invoking the VEP, which then provides for centralized coordination and weighing of equities among all affected agencies. Along with a declaration from an official at the Office of the Director of National Intelligence, this new information provides more background on the reasons why the government decided to develop an overarching zero day policy in the first place: it “recognized that not all organizations see the entire picture of vulnerabilities, and each organization may have its own equities and concerns regarding the prioritization of patches and fixes, as well as its own distinct mission obligations.” We now know the VEP was finalized in February 2010, but the government apparently failed to implement it in any substantial way, prompting the presidential review group’s recommendation to prioritize disclosure over offensive hacking. We’re glad to have forced a little more transparency on this important issue, but the government is still foolishly holding on to a few last redactions, including refusing to name which agencies participate in the VEP. That’s just not supportable, and we’ll be in court next month to argue that the names of these agencies must be disclosed. 
Paul Merrell

Disclosure of FISA Court Opinions: Legal Issues (CRS) - Secrecy News - 0 views

blogs.fas.org/...disclosure-fisa-crs

surveillance state NSA classification-authority Constitution legal-research

shared by Paul Merrell on 04 Mar 14 - No Cached
  • Could Congress legally compel the executive branch to disclose classified opinions of the Foreign Intelligence Surveillance Court?  Maybe not, a new analysis from the Congressional Research Service concludes. The CRS report — entitled “Disclosure of FISA Court Opinions: Select Legal Issues” — has little to do with FISA Court opinions in particular. It is an analysis of the overlapping authorities of the three branches of government to classify or disclose national security information. “The central issue is the extent to which Congress may regulate control over access to national security information, including mandating that the executive branch disclose specific materials — a question not definitively resolved by the courts,” the report says. This is not a new question, but it is usefully reviewed and summarized by the CRS report.
  • The issue arises because “The executive branch has argued that the Commander-in-Chief clause bestows the President with independent power to control access to national security information. As such, according to this line of reasoning, Congress’s generally broad ability to require disclosure of agency documents may be constrained when it implicates national security.” Although no statute regulating classification has ever been ruled unconstitutional, “Congress’s power to compel the release of information held by the executive branch might have limits,” CRS said. “There may be a limited sphere of information that courts will protect from public disclosure,” just as they have exempted properly classified information in FOIA cases, and state secrets in other cases.
  • The new CRS report has a couple of other noteworthy omissions. It does not mention the authority claimed by the congressional intelligence committees to publicly disclose classified information without executive branch approval. (See Section 8 of Senate Resolution 400 of the 94th Congress, 1976.)  Though this authority has never yet been exercised, it remains available in principle. The report also does not mention some recent instances when Congress has successfully compelled executive branch declassification while also navigating around potential constitutional obstacles.
Paul Merrell

Lawmakers vow to constrain NSA from collecting U.S. phone records - latimes.com - 0 views

www.latimes.com/...cords-20131222,0,6798521.story

surveillance state NSA NSA-blowback NSA-reform legislation

shared by Paul Merrell on 24 Dec 13 - No Cached
  • The drive to end the bulk collection of phone records by the National Security Agency is gaining strength, as Senate Democrats said Sunday that Congress will change the law to ban the practice if President Obama does not do it first. “It’s time to have real reform, not a veneer of reform,” said Sen. Mark Udall (D-Colo.), a longtime critic of the NSA. “We have got to rebuild the American people’s trust in our intelligence community so we can be safe,” he said on ABC’s "This Week." “But we don’t do that by bulk data collection that violates the privacy of Americans. That’s unconstitutional, and has shown to not be effective.” Last week, a federal judge said the routine collection of the dialing records is probably unconstitutional, and a panel appointed by President Obama recommended a major change. “We believe the government shouldn’t hold this data any longer,” Michael Morrell, a former acting director of the CIA and a panel member, said on CBS’ "Face the Nation." He said the phone records could be held by the phone companies or by another private group. Then, the government would “need a court order every time they wanted to query that data,” he said. Despite the need for reforms, Morrell said the original purpose of the program still makes sense. He said it is crucial the NSA and the FBI can move quickly if there is reason to believe that a “terrorist overseas is talking to someone in the United States.”
  • But the government does not need to collect and store all of these dialing records, he said, so long as they are held in private hands. Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said he will press ahead in January to pass a bill that forbids the NSA from collecting phone records. He is sponsoring the USA Freedom Act with former House Judiciary Committee Chairman F. James Sensenbrenner (R-Wis.) to close what they now see as a loophole in the law.
  • Paul Merrell on 24 Dec 13
     
    Wrong approach, in my opinion. None of the NSA reform measures so far take aim at the problem's roots. Those are unwarranted government secrecy, lack of reviewability by the courts at the request of the affected public, and no clear definition of digital privacy rights. Make something illegal for the NSA to do and DoD will just transfer those responsibilities to another of its agencies or farm it out to one of the other 5 Eyes nations to perform for them.   
Paul Merrell

United States v. United States Dist. Court for Eastern Dist. of Mich., 407 US 297 - Sup... - 0 views

scholar.google.com/scholar_case

surveillance state 4th Amendment constitutional law

shared by Paul Merrell on 27 Dec 13 - No Cached
  • But a recognition of these elementary truths does not make the employment by Government of electronic surveillance a welcome development—even when employed with restraint and under judicial supervision. There is, understandably, a deep-seated uneasiness and apprehension that this capability will be used to intrude upon cherished privacy of law-abiding citizens.[13] We 313*313 look to the Bill of Rights to safeguard this privacy. Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, its broader spirit now shields private speech from unreasonable surveillance. Katz v. United States, supra; Berger v. New York, supra; Silverman v. United States, 365 U. S. 505 (1961). Our decision in Katz refused to lock the Fourth Amendment into instances of actual physical trespass. Rather, the Amendment governs "not only the seizure of tangible items, but extends as well to the recording of oral statements . . . without any `technical trespass under . . . local property law.'" Katz, supra, at 353. That decision implicitly recognized that the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails[14] necessitate the application of Fourth Amendment safeguards.
  • National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of "ordinary" crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. "Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure 314*314 power," Marcus v. Search Warrant, 367 U. S. 717, 724 (1961). History abundantly documents the tendency of Government—however benevolent and benign its motives —to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. Senator Hart addressed this dilemma in the floor debate on § 2511 (3):
  • "As I read it—and this is my fear—we are saying that the President, on his motion, could declare— name your favorite poison—draft dodgers, Black Muslims, the Ku Klux Klan, or civil rights activists to be a clear and present danger to the structure or existence of the Government."[15] The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.
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  • As the Fourth Amendment is not absolute in its terms, our task is to examine and balance the basic values at stake in this case: the duty of Government 315*315 to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression. If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. We must also ask whether a warrant requirement would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it. Though the Fourth Amendment speaks broadly of "unreasonable searches and seizures," the definition of "reasonableness" turns, at least in part, on the more specific commands of the warrant clause. Some have argued that "[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable," United States v. Rabinowitz, 339 U. S. 56, 66 (1950).[16] This view, however, overlooks the second clause of the Amendment. The warrant clause of the Fourth Amendment is not dead language. Rather, it has been
  • "a valued part of our constitutional law for decades, and it has determined the result in scores and scores of cases in courts all over this country. It is not an inconvenience to be somehow `weighed' against the claims of police efficiency. It is, or should 316*316 be, an important working part of our machinery of government, operating as a matter of course to check the `well-intentioned but mistakenly overzealous executive officers' who are a part of any system of law enforcement." Coolidge v. New Hampshire, 403 U. S., at 481. See also United States v. Rabinowitz, supra, at 68 (Frankfurter, J., dissenting); Davis v. United States, 328 U. S. 582, 604 (1946) (Frankfurter, J., dissenting). Over two centuries ago, Lord Mansfield held that common-law principles prohibited warrants that ordered the arrest of unnamed individuals who the officer might conclude were guilty of seditious libel. "It is not fit," said Mansfield, "that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer." Leach v. Three of the King's Messengers, 19 How. St. Tr. 1001, 1027 (1765).
  • Lord Mansfield's formulation touches the very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation. Inherent in the concept of a warrant is its issuance by a "neutral and detached magistrate." Coolidge v. New Hampshire, supra, at 453; Katz v. United States, supra, at 356. The further requirement of "probable cause" instructs the magistrate that baseless searches shall not proceed. These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive 317*317 Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359-360 (DOUGLAS, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.[17]
  • It may well be that, in the instant case, the Government's surveillance of Plamondon's conversations was a reasonable one which readily would have gained prior judicial approval. But this Court "has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end." Katz, supra, at 356-357. The Fourth Amendment contemplates a prior judicial judgment,[18] not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government. Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A. B. A. J. 943-944 (1963). The independent check upon executive discretion is not 318*318 satisfied, as the Government argues, by "extremely limited" post-surveillance judicial review.[19] Indeed, post-surveillance review would never reach the surveillances which failed to result in prosecutions. Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights. Beck v. Ohio, 379 U. S. 89, 96 (1964).
  • But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure. We cannot accept the Government's argument that internal security matters are too subtle and complex for judicial evaluation. Courts regularly deal with the most difficult issues of our society. There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of "ordinary crime." If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.
  • Nor do we believe prior judicial approval will fracture the secrecy essential to official intelligence gathering. The investigation of criminal activity has long 321*321 involved imparting sensitive information to judicial officers who have respected the confidentialities involved. Judges may be counted upon to be especially conscious of security requirements in national security cases. Title III of the Omnibus Crime Control and Safe Streets Act already has imposed this responsibility on the judiciary in connection with such crimes as espionage, sabotage, and treason, §§ 2516 (1) (a) and (c), each of which may involve domestic as well as foreign security threats. Moreover, a warrant application involves no public or adversary proceedings: it is an ex parte request before a magistrate or judge. Whatever security dangers clerical and secretarial personnel may pose can be minimized by proper administrative measures, possibly to the point of allowing the Government itself to provide the necessary clerical assistance.
  • Thus, we conclude that the Government's concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government's domestic surveillance powers will be impaired to any significant degree. A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review. By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur.
  • As the surveillance of Plamondon's conversations was unlawful, because conducted without prior judicial approval, the courts below correctly held that Alderman v. United States, 394 U. S. 165 (1969), is controlling and that it requires disclosure to the accused of his own impermissibly intercepted conversations. As stated in Alderman, "the trial court can and should, where appropriate, place a defendant and his counsel under enforceable orders against unwarranted disclosure of the materials which they may be entitled to inspect." 394 U. S., at 185.[21]
Gary Edwards

Liberty's backlash -- why we should be grateful to Edward Snowden | Fox News - 1 views

www.foxnews.com/...-be-grateful-to-edward-snowden

Judge-Andrew-Napolitano NSA NSA-Patriot-Act-NDAA NSA-Whistleblower Edward-Snowden

shared by Gary Edwards on 01 Aug 13 - No Cached
  • Gary Edwards on 01 Aug 13
     
    Liberty's backlash -- why we should be grateful to Edward Snowden By Judge Andrew P. Napolitano Published August 01, 2013 FoxNews.com Last week, Justin Amash, the two-term libertarian Republican congressman from Michigan, joined with John Conyers, the 25-term liberal Democratic congressman from the same state, to offer an amendment to legislation funding the National Security Agency (NSA). If enacted, the Amash-Conyers amendment would have forced the government's domestic spies when seeking search warrants to capture Americans' phone calls, texts and emails first to identify their targets and produce evidence of their terror-related activities before a judge may issue a warrant. The support they garnered had a surprising result that stunned the Washington establishment. It almost passed. The final vote, in which the Amash-Conyers amendment was defeated by 205 to 217, was delayed for a few hours by the House Republican leadership, which opposed the measure. The Republican leadership team, in conjunction with President Obama and House Minority Leader Nancy Pelosi, needed more time for arm-twisting so as to avoid a humiliating loss. But the House rank-and-file did succeed in sending a message to the big-government types in both parties: Nearly half of the House of Representatives has had enough of government spying and then lying about it, and understands that spying on every American simply cannot withstand minimal legal scrutiny or basic constitutional analysis. The president is deeply into this and no doubt wishes he wasn't. He now says he welcomed the debate in the House on whether his spies can have all they want from us or whether they are subject to constitutional requirements for their warrants. Surely he knows that the Supreme Court has ruled consistently since the time of the Civil War that the government is always subject to the Constitution, wherever it goes and whatever it does. As basic as that sounds, it is not a universally held belief am
Gary Edwards

Chilling legal memo from Obama DOJ justifies assassination of US citizens - Tea Party - 0 views

www.teaparty.org/ssassination-us-citizens-34330

shared by Gary Edwards on 09 Feb 14 - No Cached
  • Chilling legal memo from Obama DOJ justifies assassination of US citizens
  • The president’s partisan lawyers purport to vest him with the most extreme power a political leader can seize (The Guardian) – The most extremist power any political leader can assert is the power to target his own citizens for execution without any charges or due process, far from any battlefield. The Obama administration has not only asserted exactly that power in theory, but has exercised it in practice. In September 2011, it killed US citizen Anwar Awlaki in a drone strike inYemen, along with US citizen Samir Khan, and then, in circumstances that are still unexplained, two weeks later killed Awlaki’s 16-year-old American son Abdulrahman with a separate drone strike in Yemen.
  • a Washington Post article from October reported that the administration is formally institutionalizing this president’s power to decide who dies under the Orwellian title “disposition matrix”.
  • ...15 more annotations...
  • What has made these actions all the more radical is the absolute secrecy with which Obama has draped all of this. Not only is the entire process carried out solely within the Executive branch - with no checks or oversight of any kind – but there is zero transparency and zero accountability. The president’s underlings compile their proposed lists of who should be executed, and the president – at a charming weekly event dubbed by White House aides as “Terror Tuesday” – then chooses from “baseball cards” and decrees in total secrecy who should die. The power of accuser, prosecutor, judge, jury, and executioner are all consolidated in this one man, and those powers are exercised in the dark.
  • The Most Transparent Administration Ever™ has been so fixated on secrecy that they have refused even to disclose the legal memoranda prepared by Obama lawyers setting forth their legal rationale for why the president has this power.
  • During the Bush years, when Bush refused to disclose the memoranda from his Office of Legal Counsel (OLC) that legally authorized torture, rendition, warrantless eavesdropping and the like, leading Democratic lawyers such as Dawn Johnsen (Obama’s first choice to lead the OLC) vehemently denounced this practice as a grave threat, warning that “the Bush Administration’s excessive reliance on ‘secret law’ threatens the effective functioning of American democracy” and “the withholding from Congress and the public of legal interpretations by the [OLC] upsets the system of checks and balances between the executive and legislative branches of government.”
  • But when it comes to Obama’s assassination power, this is exactly what his administration has done. It has repeatedly refused to disclose the principal legal memoranda prepared by Obama OLC lawyers that justified his kill list. It is, right now, vigorously resisting lawsuits from the New York Times and the ACLU to obtain that OLC memorandum. In sum, Obama not only claims he has the power to order US citizens killed with no transparency, but that even the documents explaining the legal rationale for this power are to be concealed. He’s maintaining secret law on the most extremist power he can assert.
  • Last night, NBC News’ Michael Isikoff released a 16-page “white paper”prepared by the Obama DOJ that purports to justify Obama’s power to target even Americans for assassination without due process (the memo is embedded in full below). This is not the primary OLC memo justifying Obama’s kill list – that is still concealed – but it appears to track the reasoning of that memo as anonymously described to the New York Times in October 2011.
  • there are numerous points that should be emphasized about the fundamentally misleading nature of this new memo:
  • 1. Equating government accusations with guilt
  • 2. Creating a ceiling, not a floor
  • 3. Relies on the core Bush/Cheney theory of a global battlefield
  • 4. Expanding the concept of “imminence” beyond recognition
  • The memo is authorizing assassinations against citizens in circumstances far beyond this understanding of “imminence”. Indeed, the memo expressly states that it is inventing “a broader concept of imminence” than is typically used in domestic law. Specifically, the president’s assassination power “does not require that the US have clear evidence that a specific attack . . . will take place in the immediate future”. The US routinely assassinates its targets not when they are engaged in or plotting attacks but when they are at home, with family members, riding in a car, at work, at funerals, rescuing other drone victims, etc.
  • “This is a chilling document” because “it argues that the government has the right to carry out the extrajudicial killing of an American citizen” and the purported limits “are elastic and vaguely defined, and it’s easy to see how they could be manipulated.”
  • 6. Making a mockery of “due process”
  • Stephen Colbert perfectly mocked this theory when Eric Holder first unveiled it to defend the president’s assassination program. At the time, Holder actually said: “due process and judicial process are not one and the same.” Colbert interpreted that claim as follows: “Trial by jury, trial by fire, rock, paper scissors, who cares?Due process just means that there is a process that you do. The current process is apparently, first the president meets with his advisers and decides who he can kill. Then he kills them.”
  • here we are almost a full decade later. And we have the current president asserting the power not merely to imprison or eavesdrop on US citizens without charges or trial, but to order them executed – and to do so in total secrecy, with no checks or oversight.
Paul Merrell

Exclusive: US blocks publication of Chilcot's report on how Britain went to war with Ir... - 0 views

www.independent.co.uk/...-to-war-with-iraq-8937772.html

war & peace Iraq war crimes wars of aggression cover-up Obama-administration Kerry

shared by Paul Merrell on 15 Nov 13 - No Cached
  • Washington is playing the lead role in delaying the publication of the long-awaited report into how Britain went to  war with Iraq, The Independent has learnt. Although the Cabinet Office has been under fire for stalling the progress of the four-year Iraq Inquiry by Sir John Chilcot, senior diplomatic sources in the US and Whitehall indicated that it is officials in the White House and the US Department of State who have refused to sanction any declassification of critical pre- and post-war communications between George W Bush and Tony Blair.Without permission from the US government, David Cameron faces the politically embarrassing situation of having to block evidence, on Washington’s orders, from being included in the report of an expensive and lengthy British inquiry.Earlier this year, The Independent revealed that early drafts of the report challenged the official version of events leading up to the Iraq war, which saw Mr Blair send in 45,000 troops to overthrow Saddam Hussein’s regime.
  • Paul Merrell on 15 Nov 13
     
    According to The Independent, John Kerry's State Department is busily stifling the report of the U.K.'s four-year Iraq Inquiry into how the U.K. was drawn into the Iraq War, on secrecy grounds. Obama's campaign promise to have the most transparent U.S. administration in history is long forgotten. Government secrecy trumps any investigation into war crimes by prior presidents, even though the U.S. agreed by treaty to investigate and prosecute all war crimes committed by U.S. officials.  Not only that, the Obama Administration now includes a criminal conspiracy to suppress evidence of the commission of war crimes.
Paul Merrell

Memo to Potential Whistleblowers: If You See Something, Say Something | Global Research - 0 views

www.globalresearch.ca/...5385860

transparency whistle-blowers resources ExposeFacts.org

shared by Paul Merrell on 07 Jun 14 - No Cached
  • Blowing the whistle on wrongdoing creates a moral frequency that vast numbers of people are eager to hear. We don’t want our lives, communities, country and world continually damaged by the deadening silences of fear and conformity. I’ve met many whistleblowers over the years, and they’ve been extraordinarily ordinary. None were applying for halos or sainthood. All experienced anguish before deciding that continuous inaction had a price that was too high. All suffered negative consequences as well as relief after they spoke up and took action. All made the world better with their courage. Whistleblowers don’t sign up to be whistleblowers. Almost always, they begin their work as true believers in the system that conscience later compels them to challenge. “It took years of involvement with a mendacious war policy, evidence of which was apparent to me as early as 2003, before I found the courage to follow my conscience,” Matthew Hoh recalled this week.“It is not an easy or light decision for anyone to make, but we need members of our military, development, diplomatic and intelligence community to speak out if we are ever to have a just and sound foreign policy.”
  • Hoh describes his record this way: “After over 11 continuous years of service with the U.S. military and U.S. government, nearly six of those years overseas, including service in Iraq and Afghanistan, as well as positions within the Secretary of the Navy’s Office as a White House Liaison, and as a consultant for the State Department’s Iraq Desk, I resigned from my position with the State Department in Afghanistan in protest of the escalation of war in 2009.” Another former Department of State official, the ex-diplomat and retired Army colonel Ann Wright, who resigned in protest of the Iraq invasion in March 2003, is crossing paths with Hoh on Friday as they do the honors at a ribbon-cutting — half a block from the State Department headquarters in Washington — for a billboard with a picture of Pentagon Papers whistleblower Daniel Ellsberg. Big-lettered words begin by referring to the years he waited before releasing the Pentagon Papers in 1971. “Don’t do what I did,” Ellsberg says on the billboard.  “Don’t wait until a new war has started, don’t wait until thousands more have died, before you tell the truth with documents that reveal lies or crimes or internal projections of costs and dangers. You might save a war’s worth of lives.
  • The billboard – sponsored by the ExposeFacts organization, which launched this week — will spread to other prominent locations in Washington and beyond. As an organizer for ExposeFacts, I’m glad to report that outreach to potential whistleblowers is just getting started. (For details, visit ExposeFacts.org.) We’re propelled by the kind of hopeful determination that Hoh expressed the day before the billboard ribbon-cutting when he said: “I trust ExposeFacts and its efforts will encourage others to follow their conscience and do what is right.” The journalist Kevin Gosztola, who has astutely covered a range of whistleblower issues for years, pointed this week to the imperative of opening up news media. “There is an important role for ExposeFacts to play in not only forcing more transparency, but also inspiring more media organizations to engage in adversarial journalism,” he wrote. “Such journalism is called for in the face of wars, environmental destruction, escalating poverty, egregious abuses in the justice system, corporate control of government, and national security state secrecy. Perhaps a truly successful organization could inspire U.S. media organizations to play much more of a watchdog role than a lapdog role when covering powerful institutions in government.”
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  • Overall, we desperately need to nurture and propagate a steadfast culture of outspoken whistleblowing. A central motto of the AIDS activist movement dating back to the 1980s – Silence = Death – remains urgently relevant in a vast array of realms. Whether the problems involve perpetual war, corporate malfeasance, climate change, institutionalized racism, patterns of sexual assault, toxic pollution or countless other ills, none can be alleviated without bringing grim realities into the light. “All governments lie,” Ellsberg says in a video statement released for the launch of ExposeFacts, “and they all like to work in the dark as far as the public is concerned, in terms of their own decision-making, their planning — and to be able to allege, falsely, unanimity in addressing their problems, as if no one who had knowledge of the full facts inside could disagree with the policy the president or the leader of the state is announcing.” Ellsberg adds: “A country that wants to be a democracy has to be able to penetrate that secrecy, with the help of conscientious individuals who understand in this country that their duty to the Constitution and to the civil liberties and to the welfare of this country definitely surmount their obligation to their bosses, to a given administration, or in some cases to their promise of secrecy.”
  • Right now, our potential for democracy owes a lot to people like NSA whistleblowers William Binney and Kirk Wiebe, and EPA whistleblower Marsha Coleman-Adebayo. When they spoke at the June 4 news conference in Washington that launched ExposeFacts, their brave clarity was inspiring. Antidotes to the poisons of cynicism and passive despair can emerge from organizing to help create a better world. The process requires applying a single standard to the real actions of institutions and individuals, no matter how big their budgets or grand their power. What cannot withstand the light of day should not be suffered in silence. If you see something, say something.
  • Paul Merrell on 07 Jun 14
     
    While some governments -- my own included -- attempt to impose an Orwellian Dark State of ubiquitous secret surveillance, secret wars, the rule of oligarchs, and public ignorance, the Edward Snowden leaks fanned the flames of the countering War on Ignorance that had been kept alive by civil libertarians. Only days after the U.S. Supreme Court denied review in a case where a reporter had been ordered to reveal his source of information for a book on the Dark State under the penalties for contempt of court (a long stretch in jail), a new web site is launched for communications between sources and journalists where the source's names never need to be revealed. This article is part of the publicity for that new weapon fielded by the civil libertarian side in the War Against Ignorance.  Hurrah!
Paul Merrell

Florida Event Spotlights Signs of Foreign Support of 9/11 Plot | 28Pages.org - 0 views

28pages.org/...of-foreign-support-of-911-plot

9-11 28-pages declassification-review Graham video

shared by Paul Merrell on 21 Dec 14 - No Cached
  • Last month, 9/11 parents Loreen and Matt Sellitto hosted an informative event focused on one of the most important yet least-understood aspects of September 11: the extent to which the terrorists received support from foreign governments—and the extent of the government’s knowledge of that support, both before and after the attacks.
  • Held in Naples, Florida, the November 11 event was called “The Untold Story of 9/11: A Conversation with Bob Graham.” Following opening remarks from host Loreen Sellitto and from Terry Strada of 9/11 Families United for Justice Against Terrorism, the event featured three speakers: Former Senator Bob Graham, the most prominent voice outside government fighting for declassification of the 28 pages. Broward Bulldog editor Dan Christensen, who broke the story of the FBI’s discovery of a 9/11 cell in Sarasota, and who continues working to bring FBI investigation documents into the daylight. Attorney Tom Julin, who is helping the Broward Bulldog in its effort to overcome the government’s stonewalling. Here, we cover many of the highlights; a full video of the event can be found at the bottom of the page.
  • Broward Bulldog Battles Feds Over Sarasota Investigation Christensen’s quest for answers about foreign sources of support of the 9/11 hijackers began in 2011 with a tip passed to him by Anthony Summers, who, with his wife Robbyn Swan, had just completed their book, “The Eleventh Day.” Summers and Swan had learned about an FBI investigation of a Saudi family with close ties to the Saudi government that suddenly abandoned its upscale home just outside Sarasota about two weeks before 9/11. Pursuing the lead, Christensen contacted Senator Graham for his insights into the Sarasota cell. Braced for the possibility that Graham would decline comment because of classification restraints, Christensen was stunned to learn that Graham—who had been chairman of the Senate Intelligence Committee and co-chaired the joint Congressional inquiry into 9/11—was unable to comment for an altogether different reason: Graham said the FBI had never told him about its Sarasota investigation.
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  • Christensen then inquired with the FBI, which confirmed there had been an investigation, but said it found no connection to 9/11. Next, seeking to learn how they reached that conclusion, he requested the FBI’s investigation documents using the Freedom of Information Act (FOIA), but the FBI said there were no documents matching the request. Finding that completely implausible, in September 2012, Christensen and the Broward Bulldog filed a FOIA lawsuit. About six months later, the FBI sent Christensen 35 partially redacted pages that contained a bombshell conclusion directly contradicting the government’s earlier denials: The investigation had in fact “revealed many connections” between the Saudi family that fled their home and “individuals associated with the terrorist attacks on 9/11/2001.” (Indeed, investigations showed the home had been called and even visited by future 9/11 hijackers.)
  • In April 2014, as the Bulldog’s lawsuit progressed, Fort Lauderdale U.S. District Judge William Zloch ordered the FBI to conduct a more thorough search of its files, chiding the government for advancing “nonsensical” legal arguments in its effort to maintain secrecy. Later, he ordered the FBI to turn over more than 80,000 pages from its Tampa office so he could personally review them and reach his own conclusions about the need for secrecy. The judge’s review of that enormous cache is still underway.
  • Julin, in addition to providing an interesting elaboration on the legal battle to liberate the FBI’s Sarasota files, explained the Broward Bulldog’s attempts to secure the release of the 28-page finding on foreign government support of the 9/11 hijackers found in the 2002 report of the joint Congressional inquiry. Julin is helping Christensen, Summers and Swan push for the declassification of the 28 pages through a little-known process called Mandatory Declassification Review. Under that process, an agency’s refusal to declassify material can ultimately be appealed to a multi-agency panel that reviews the material and presents a recommendation to the president. The panel is now reviewing the 28 pages. While there’s no deadline, Julin has been told to expect the panel’s recommendation to President Obama sometime this winter.
  • Graham also explored the questions of: Why would the Saudis support Islamic terrorists operating in the United States? Why did the Bush administration shield Saudi Arabia by preventing the release of damning material? Why would the Obama administration continue the Bush administration’s “soft treatment” of Saudi Arabia? In the course of his remarks, Graham briefly discussed two of his books. The first, “Intelligence Matters: The CIA, the FBI, Saudi Arabia and the Failure of America’s War on Terror,” is a non-fiction work, which required advance clearance from the federal government that resulted in many passages being censored. That disappointing experience prompted Graham to do an end-run around government censors by publishing “Keys to the Kingdom,” a work labelled as fiction but which Graham used to write on the topic with greater freedom.
Paul Merrell

Disclosing Classified Info to the Press - With Permission | - 0 views

fas.org/...authorized-disclosure

surveillance state NSA authorized-disclosures

shared by Paul Merrell on 05 Jan 17 - No Cached
  • Intelligence officials disclosed classified information to members of the press on at least three occasions in 2013, according to a National Security Agency report to Congress that was released last week under the Freedom of Information Act. See Congressional Notification — Authorized Disclosures of Classified Information to Media Personnel, NSA memorandum to the staff director, House Permanent Select Committee on Intelligence, December 13, 2013. The specific information that NSA gave to the unnamed reporters was not declassified. But the disclosures were not “leaks,” or unauthorized disclosures. They were, instead, authorized disclosures. For their part, the reporters agreed not to disseminate the information further. “Noteworthy among the classified topics disclosed were NSA’s use of metadata to locate terrorists, the techniques we use and the processes we follow to assist in locating hostages, [several words deleted] overseas support to the warfighter and U.S. allies in war zones, and NSA support to overall USG efforts to mitigate cyber threats. The [deleted] personnel executed non-disclosure agreements that covered all classified discussions.” In one case, “classified information was disclosed in order to correct inaccurate understandings held by the reporter about the nature and circumstances of [deleted].” On another occasion, “classified information was disclosed in an effort to limit or avoid reporting that could lead to the loss of the capability [deleted].”
  • In all three cases, “the decision to disclose classified information was made in consultation with the Director of National Intelligence pursuant to Executive Order 13526, and in each case the information disclosed remains properly classified.” This seems like a generous interpretation of the Executive Order, which does not mention disclosures to the press at all. It does say, in section 4.2(b) that “In an emergency, when necessary to respond to an imminent threat to life or in defense of the homeland, the agency head or any designee may authorize the disclosure of classified information […] to an individual or individuals who are otherwise not eligible for access.” In an emergency, then, but not just “to correct inaccurate understandings.” Still, the report accurately reflects the true instrumental nature of the classification system. That is, the protection of classified information under all circumstances is not a paramount goal. National security secrecy is a tool to be used if it advances the national interest (and is consistent with law and policy) and to be set aside when it does not. So hypocrisy in the handling of classified information is not an issue here. The concern, rather, is that the power of selective disclosure of classified material can be easily abused to manage and to manipulate public perceptions. The congressional requirement to report on authorized disclosures of classified information to the press may help to mitigate that danger.
  • Paul Merrell on 05 Jan 17
     
    This would set up an interesting Freedom of Information Act case aimed at resolving the issue whether the "authorized" disclosures established a waiver of the FOIA exemption for national security information. A waiver, viewed most simplistically, is any conduct that is inconsistent with later assertion of a right. Deliberate disclosure to anyone who lacks a national security clearance would seem to be inconsistent with later assertion of the exemption. That the purpose of the disclosures was to adjust the attitudes of press members seems a very poor justification in that it establishes particular reporters as a class of persons entitled to more disclosure than other members of the public. Yet the Supreme Court has held time and again that journalists have no more right to access government information than any other member of the public. So there is a strong argument that everyone should be entitled to the same disclosures.
Paul Merrell

Lawmakers Say TPP Meetings Classified To Keep Americans in the Dark | Global Research - 0 views

www.globalresearch.ca/...5437233

U.S.-foreign-policy trade agreements TPP secrecy Congress

shared by Paul Merrell on 17 Mar 15 - No Cached
  • US Trade Representative Michael Froman is drawing fire from Congressional Democrats for the Obama adminstration’s continued imposition of secrecy surrounding the Trans-Pacific Parternship. (Photo: AP file) Democratic lawmaker says tightly-controlled briefings on Trans-Pacific Partnership deal are aimed at keeping US constituents ignorant about what’s at stake Lawmakers in Congress who remain wary of the Trans-Pacific Partnership (TPP) trade agreement are raising further objections this week to the degree of secrecy surrounding briefings on the deal, with some arguing that the main reason at least one meeting has been registered “classified” is to help keep the American public ignorant about giveaways to corporate interests and its long-term implications.
  • As The Hill reports: Members will be allowed to attend the briefing on the proposed trade pact with 12 Latin American and Asian countries with one staff member who possesses an “active Secret-level or high clearance” compliant with House security rules. Rep. Rosa DeLauro (D-Conn.) told The Hill that the administration is being “needlessly secretive.” “Even now, when they are finally beginning to share details of the proposed deal with members of Congress, they are denying us the ability to consult with our staff or discuss details of the agreement with experts,” DeLauro told The Hill. Rep. Lloyd Doggett (D-Texas) condemned the classified briefing. “Making it classified further ensures that, even if we accidentally learn something, we cannot share it. What is [Froman]working so hard to hide? What is the specific legal basis for all this senseless secrecy?” Doggett said to The Hill. “Open trade should begin with open access,” Doggett said. “Members expected to vote on trade deals should be able to read the unredacted negotiating text.”
  • “I’m not happy about it,” Rep. Alan Grayson (D-Fla.) told the Huffington Post, referring to the briefing with Froman and Labor Secretary Thomas Perez on Wednesday. The meeting—focused on the section of the TPP that deals with the controversial ‘Investor-State Dispute Settlement’ (ISDS) mechanism—has been labeled “classified,” so that lawmakers and any of their staff who attend will be barred, under threat of punishment, of revealing what they learn with constituents or outside experts. According to the Huffington Post: ISDS has been part of U.S. free trade agreements since NAFTA was signed into law in 1993, and has become a particularly popular tool for multinational firms over the past few years. But while the topic remains controversial, particularly with Democrats, many critics of the administration emphasize that applying national security-style restrictions on such information is an abuse of the classified information system. An additional meeting earlier on Wednesday on currency manipulation with Froman and Treasury Secretary Jack Lew is not classified.
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  • Among its other critics, Sen. Elizabeth Warren has slammed the idea of ISDS provisions as a surrender of democratic ideals to corporate interests. According to Warren, ISDS would simply “tilt the playing field in the United States further in favor of big multinational corporations.” By having unchallenged input on secretive TPP talks, Warren argued last month, these large companies and financial interests “are increasingly realizing this is an opportunity to gut U.S. regulations they don’t like.” According to Grayson, putting Wednesday’s ISDS briefing in a classified setting “is part of a multi-year campaign of deception and destruction. Why do we classify information? It’s to keep sensitive information out of the hands of foreign governments. In this case, foreign governments already have this information. They’re the people the administration is negotiating with. The only purpose of classifying this information is to keep it from the American people.”
Paul Merrell

Beware the Dangers of Congress' Latest Cybersecurity Bill | American Civil Liberties Union - 0 views

www.aclu.org/...ress-latest-cybersecurity-bill

surveillance state legislation ACLU cybersecurity

shared by Paul Merrell on 01 Jul 14 - No Cached
  • A new cybersecurity bill poses serious threats to our privacy, gives the government extraordinary powers to silence potential whistleblowers, and exempts these dangerous new powers from transparency laws. The Cybersecurity Information Sharing Act of 2014 ("CISA") was scheduled to be marked up by the Senate Intelligence Committee yesterday but has been delayed until after next week's congressional recess. The response to the proposed legislation from the privacy, civil liberties, tech, and open government communities was quick and unequivocal – this bill must not go through. The bill would create a massive loophole in our existing privacy laws by allowing the government to ask companies for "voluntary" cooperation in sharing information, including the content of our communications, for cybersecurity purposes. But the definition they are using for the so-called "cybersecurity information" is so broad it could sweep up huge amounts of innocent Americans' personal data. The Fourth Amendment protects Americans' personal data and communications from undue government access and monitoring without suspicion of criminal activity. The point of a warrant is to guard that protection. CISA would circumvent the warrant requirement by allowing the government to approach companies directly to collect personal information, including telephonic or internet communications, based on the new broadly drawn definition of "cybersecurity information."
  • While we hope many companies would jealously guard their customers' information, there is a provision in the bill that would excuse sharers from any liability if they act in "good faith" that the sharing was lawful. Collected information could then be used in criminal proceedings, creating a dangerous end-run around laws like the Electronic Communications Privacy Act, which contain warrant requirements. In addition to the threats to every American's privacy, the bill clearly targets potential government whistleblowers. Instead of limiting the use of data collection to protect against actual cybersecurity threats, the bill allows the government to use the data in the investigation and prosecution of people for economic espionage and trade secret violations, and under various provisions of the Espionage Act. It's clear that the law is an attempt to give the government more power to crack down on whistleblowers, or "insider threats," in popular bureaucratic parlance. The Obama Administration has brought more "leaks" prosecutions against government whistleblowers and members of the press than all previous administrations combined. If misused by this or future administrations, CISA could eliminate due process protections for such investigations, which already favor the prosecution.
  • While actively stripping Americans' privacy protections, the bill also cloaks "cybersecurity"-sharing in secrecy by exempting it from critical government transparency protections. It unnecessarily and dangerously provides exemptions from state and local sunshine laws as well as the federal Freedom of Information Act. These are both powerful tools that allow citizens to check government activities and guard against abuse. Edward Snowden's revelations from the past year, of invasive spying programs like PRSIM and Stellar Wind, have left Americans shocked and demanding more transparency by government agencies. CISA, however, flies in the face of what the public clearly wants. (Two coalition letters, here and here, sent to key members of the Senate yesterday detail the concerns of a broad coalition of organizations, including the ACLU.)
  • Paul Merrell on 01 Jul 14
     
    Text of the bill is on Sen. Diane Feinstein's site, http://goo.gl/2cdsSA It is truly a bummer.
Paul Merrell

Obama ordered to divulge legal basis for killing Americans with drones | Ars Technica - 0 views

arstechnica.com/...-killing-americans-with-drones

war & peace drone attacks Obama FOIA litigation targeted-killing Due-Process

shared by Paul Merrell on 24 Apr 14 - No Cached
  • The Obama administration must disclose the legal basis for targeting Americans with drones, a federal appeals court ruled Monday in overturning a lower court decision likened to "Alice in Wonderland." The Second US Circuit Court of Appeals, ruling in a Freedom of Information Act (FOIA) claim by The New York Times and the American Civil Liberties Union (ACLU), said the administration must disclose the legal rationale behind its claims that it may kill enemies who are Americans overseas.
  • The Obama administration must disclose the legal basis for targeting Americans with drones, a federal appeals court ruled Monday in overturning a lower court decision likened to "Alice in Wonderland." The Second US Circuit Court of Appeals, ruling in a Freedom of Information Act (FOIA) claim by The New York Times and the American Civil Liberties Union (ACLU), said the administration must disclose the legal rationale behind its claims that it may kill enemies who are Americans overseas. "This is a resounding rejection of the government's effort to use secrecy and selective disclosure to manipulate public opinion about the targeted killing program," ACLU Legal Director Jameel Jaffer said in an e-mail. The so-called targeted-killing program—in which drones from afar shoot missiles at buildings, cars, and people overseas—began under the George W. Bush administration. The program, which sometimes kills innocent civilians, was broadened under Obama to include the killing of Americans.
  • Government officials from Obama on down have publicly commented on the program, but they claimed the Office of Legal Counsel's memo outlining the legal rationale about it was a national security secret. The appeals court, however, said on Monday that officials' comments about overseas drone attacks means the government has waived its secrecy argument. "After senior Government officials have assured the public that targeted killings are 'lawful' and that OLC advice 'establishes the legal boundaries within which we can operate,'" the appeals court said, "waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred" (PDF). The Electronic Privacy Information Center (EPIC), which in a friend-of-the court brief urged the three-judge appeals court to rule as it did, said the decision was a boon for citizen FOIA requests. "It's very helpful. We have a number of cases, including one of our oldest FOIA cases, that involves the warrantless wiretapping memos. The basic premise is when OLC writes a legal memo and when that becomes the known basis for a program, that's the law of the executive branch and cannot be withheld," Alan Butler, EPIC's appellate counsel, said in a telephone interview.
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  • The appeals court said the memo may be redacted from revealing which government agencies are behind the attacks, although former CIA Director Leon Panetta has essentially acknowledged that agency's role. Last year, a federal judge blocked the disclosure of the memo. Judge Colleen McMahon of New York said she was ensnared in a "paradoxical situation" in which the law forbade her from ordering the memo's release: The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules—a veritable catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret.
  • Paul Merrell on 24 Apr 14
     
    Unless the Feds successfully seek en banc review or review by the Supreme Court, we will apparently be able to read the infamous DoJ Office of Legal Counsel explaining the legal arguments why Obama may lawfully order drone strikes on U.S. citizens inside nations with which the U.S. is not at war. Let's keep in mind that DoJ claimed that Obama has the power to do that in the U.S. too. According to the Second Circuit's opinion, the ordered disclosure includes a somewhat lengthy section arguing that 18 U.S.C. 1119 and 956 do not apply to Obama. Section 1119 provides, inter alia: "(b) Offense.- A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113." Section 956 provides in part: "(a)(1) Whoever, within the jurisdiction of the United States, conspires with one or more other persons, regardless of where such other person or persons are located, to commit at any place outside the United States an act that would constitute the offense of murder, kidnapping, or maiming if committed in the special maritime and territorial jurisdiction of the United States shall, if any of the conspirators commits an act within the jurisdiction of the United States to effect any object of the conspiracy, be punished as provided in subsection (a)(2). "(2) The punishment for an offense under subsection (a)(1) of this section is- (A) imprisonment for any term of years or for life if the offense is conspiracy to murder or kidnap; and (B) imprisonment for not more than 35 years if the offense is conspiracy to maim." There should also be a section explaining away the Constitution's Due Process Clause (protecting life, liberty, and property) and Right to Trial by Jury, as well as exempting the President from international law establishing human rights and l
Gary Edwards

U.S. reverses stance on treaty to regulate arms trade | Reuters - 0 views

www.reuters.com/...idUSTRE59E0Q920091015

obammunism 2nd-amendment guns

shared by Gary Edwards on 05 Jan 10 - Cached
  • Gary Edwards on 05 Jan 10
     
    This article is more than 2-1/2 months old yet this is the first I've heard of it.  Pretty frightening "end-run" the administration is trying. Obama Finds Legal Way Around The 2nd. Amendment and Uses It. http://www.reuters.com/article/politicsNews/idUSTRE59E0Q920091015 On Wednesday the Obama administration took its first major step in a plan to ban all firearms in the United States . The Obama administration intends to force gun control and a complete ban on all weapons for US citizens through the signing of international treaties with foreign nations. By signing international treaties on gun control, the Obama administration can use the US State Department to bypass the normal legislative process in Congress. Once the US Government signs these international treaties, all US citizens will be subject to those gun laws created by foreign governments. These are laws that have been developed and promoted by organizations such as the United Nations and individuals such as George Soros and Michael Bloomberg. The laws are designed and intended to lead to the complete ban and confiscation of all firearms.  The Obama administration is attempting to use tactics and methods of gun control that will inflict major damage to our 2nd Amendment before US citizens even understand what has happened. Obama can appear before the public and tell them that he does not intend to pursue any legislation (in the United States) that will lead to new gun control laws, while cloaked in secrecy, his Secretary of State, Hillary Clinton is committing the US to international treaties and foreign gun control laws. Does that mean Obama is telling the truth? What it means is that there will be no publicized gun control debates in the media or votes in Congress. We will wake up one morning and find that the United States has signed a treaty that prohibits firearm and ammunition manufacturers from selling to the public. We will wake up another morning and find that the US has signed a treaty that pro
Paul Merrell

Still Secret: Second Circuit Keeps More Drone Memos From the Public | Just Security - 0 views

www.justsecurity.org/...ret-circuit-drone-memos-public

tyranny secret-law targeted-killing OLC-opinions FOIA litigation

shared by Paul Merrell on 01 Dec 15 - No Cached
  • Secret law has been anathema to our democracy since its Founding, but a federal appeals court just gave us more of it.
  • We might forgive the citizenry’s confusion, though, in attempting to square those principles with the decision by the Second Circuit Court of Appeals, published yesterday, holding that the government may continue to keep secret nine legal memoranda by the Justice Department’s Office of Legal Counsel analyzing the legality of targeted killings carried out by the US government. It was just more than a year ago that the same panel of the same court ordered the government to disclose key portions of a July 2010 OLC memorandum that authorized the targeted killing of an American citizen in Yemen. At the time, the court’s opinion seemed to promise at least a partial solution to a problem straight (as the district court in the same case put it) from Alice in Wonderland: that [a] thicket of laws and precedents … effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for its conclusion a secret.
  • Yesterday’s opinion retreats from that promise by keeping much of the government’s law of the targeted killing program secret. (In this and two other cases, the ACLU continues to seek more than 100 other legal memoranda authored by various agencies concerning targeted killing.) It does so in two ways that warrant attention. First, the court suggests that OLC merely gives advice to executive branch agencies, and that OLC’s legal memoranda do not establish the “working law” of the government because agencies might not “adopt” the memoranda’s legal analysis as their own. This argument is legally flawed and, moreover, it flies in the face of the public evidence concerning how the executive branch treats opinions issued by OLC. In an OLC memorandum published, ironically or not, the same day (July 16, 2010) and over the same signature (David Barron’s) as the targeted killing memorandum released at the Second Circuit’s behest last year, the OLC explains that its “central function” is to provide “controlling legal advice to Executive Branch officials.” And not even two weeks ago, the acting head of the OLC told the public that even informally drafted legal advice emanating from his office is “binding by custom and practice in the executive branch,” that “[i]t’s the official view of the office, and that “[p]eople are supposed to and do follow it.”
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  • But that’s not what the government told the Second Circuit, and it’s not what the Second Circuit has now suggested is the law. Second, the Second Circuit’s new opinion endorses the continued official secrecy over any discussion of a document that has supplied a purported legal basis for the targeted killing program since almost immediately after the September 11 attacks. The document — a September 17, 2001 “Memorandum of Notification” — is not much of a secret. The government publicly identified it in litigation with the ACLU eight years ago; the Senate Intelligence Committee cited it numerous times in its recent torture report; and the press frequently makes reference to it. Not only that, but the Central Intelligence Agency’s former top lawyer, John Rizzo, freely discussed it in his recent memoir. According to Rizzo, the September 17 MON is “the most comprehensive, most ambitious, most aggressive, and most risky” legal authorization of the last decade and a half — which is saying something. Rizzo explains that the MON authorizes targeted killings of suspected terrorists by the CIA, and in his new book, Power Wars, Charlie Savage reports that the MON is the original source of the controversial (and legally novel) “continuing and imminent threat” standard the government uses to govern the lethal targeting of individuals outside of recognized battlefields. The MON is also likely to have authorized an end run around the assassination “ban” in Executive Order 12333 — a legal maneuver that is discussed in, but almost entirely redacted from, an earlier OLC analysis of targeted killing.
  • In yesterday’s opinion, the Second Circuit upheld the government’s withholding of a 2002 OLC memorandum that “concerns Executive Order 12333,” which almost certainly analyzes the effect of the September 17 MON, as well as of five other memoranda that “discuss another document that remains entitled to protection.” If indeed that “document” is the MON, it would seem to be yet another case of what the DC Circuit pointedly criticized, in a 2013 opinion, as the granting of judicial “imprimatur to a fiction of deniability that no reasonable person would regard as plausible.” In that case, the DC Circuit went on to quote Justice Frankfurter: “‘There comes a point where … Court[s] should not be ignorant as judges of what [they] know as men’ and women.” Last year, the Second Circuit took that admonishment to heart when it published the July 2010 OLC memorandum. Unfortunately, yesterday, rather than once again opening the country’s eyes to the law our government is applying behind closed doors, the Second Circuit closed its own.
Paul Merrell

DC Appeals Court Rejects CIA's Secrecy Claims in ACLU's Targeted Killing FOIA Lawsuit |... - 0 views

www.aclu.org/...-targeted-killing-foia-lawsuit

drone attacks legal basis CIA Obama FOIA

shared by Paul Merrell on 16 Mar 13 - No Cached
  • A federal appeals court ruled today that the Central Intelligence Agency cannot deny its "intelligence interest" in the targeted killing program and refuse to respond to Freedom of Information Act requests about the program while officials continue to make public statements about it. "This is an important victory. It requires the government to retire the absurd claim that the CIA's interest in the targeted killing program is a secret, and it will make it more difficult for the government to deflect questions about the program's scope and legal basis," said ACLU Deputy Legal Director Jameel Jaffer, who argued the case before a three-judge panel of the D.C. Circuit Appeals Court in September. "It also means that the CIA will have to explain what records it is withholding, and on what grounds it is withholding them."
  • The ACLU's FOIA request, filed in January 2010, seeks to learn when, where, and against whom drone strikes can be authorized, and how and whether the U.S. ensures compliance with international law restricting extrajudicial killings. In September 2011, the district court granted the government's request to dismiss the case, accepting the CIA's argument that it could not release any documents because even acknowledging the existence of the program would harm national security. The ACLU filed its appeal brief in the case exactly one year ago, and today the appeals court reversed the lower court's ruling in a 3-0 vote. "We hope that this ruling will encourage the Obama administration to fundamentally reconsider the secrecy surrounding the targeted killing program," Jaffer said. "The program has already been responsible for the deaths of more than 4,000 people in an unknown number of countries. The public surely has a right to know who the government is killing, and why, and in which countries, and on whose orders. The Obama administration, which has repeatedly acknowledged the importance of government transparency, should give the public the information it needs in order to fully evaluate the wisdom and lawfulness of the government's policies." Today's ruling is at: aclu.org/national-security/drone-foia-appeals-court-ruling
Paul Merrell

US tested biological weapons in Japan's Okinawa in the 60s - report - RT News - 0 views

rt.com/...ted-chemical-weapons-japan-476

war & peace bioweapons CBS bioweapon-tests government secrecy

shared by Paul Merrell on 14 Jan 14 - No Cached
  • The American army conducted experiments with biological weapons aimed at destroying rice crops on the Japanese island of Okinawa in the 60s, Kyodo news agency reports. The alleged target of the tests was the China and Southeast Asia region. Citing classified US documents, Japanese news agency Kyodo said the US military carried out experiments on their sovereign territory between 1961 and 1962. At this time Japan’s southern island of Okinawa was still under post-WWII, US jurisdiction. The US did similar tests in Taiwan and the American mainland, notes Kyodo.
  • "Field tests for stem rust of wheat and rice blast disease were begun at several sites in the (US) Midwest and south and in Okinawa with partial success in the accumulation of useful data," wrote Kyodo, citing its documents.
    • Paul Merrell
      Paul Merrell on 14 Jan 14
       
      This is only the latest disclosure of prior outrageous and criminal government behavior that was enabled only by unjustifiable government secrecy. Secrecy defeats accountability and is thus fundamentally anti-democratic, granting the government license to misbehave. 
Paul Merrell

CIA Seeks More Time to Declassify Interrogation Documents - Secrecy News - 0 views

blogs.fas.org/...cia-more-time

war & peace CIA torture declassification FOIA litigation Senate-Intelligence_Committee-Report

shared by Paul Merrell on 16 May 14 - No Cached
  • The Central Intelligence Agency today asked a court to allow more time to declassify its response to the Senate Select Committee on Intelligence report on CIA rendition, detention and interrogation (RDI) activities, which itself is undergoing a time-consuming declassification review. “This complex process requires the careful review of over 500 pages of highly classified material. In addition, sufficient time must be allowed not only for coordination with other agencies, but — after completion of declassification review — for implementation of security measures to ensure the safety of U.S. personnel and facilities overseas,” according to a May 15 motion filed by the government in a FOIA lawsuit brought by the ACLU. “Due to the fluid nature of this process, aspects of which are beyond the CIA’s control, the Agency does not yet have a firm date by which it can complete the processing of the CIA Response [to the SSCI report] and the so-called Panetta Report, although it hopes the declassification review and accompanying processing of those documents can be completed this summer.” The CIA therefore requested an extension of time to respond, to which the ACLU plaintiffs did not consent.
  • With respect to the Senate Intelligence Committee report itself, the government promised an “expeditious” declassification review of the executive summary, findings, and conclusions. “While all declassification decisions are guided by the need to protect national security interests, the President has expressed a clear intent to declassify as much of the executive summary, findings, and conclusions of the SSCI Report as possible, and intends the declassification process to be expeditious,” the government motion said. According to an April 18 letter from then-White House counsel Katherine Ruemmler, appended to the new motion, “The President supports making public the Committee’s important review of the historical RDI program, as he believes that public scrutiny and debate will help to inform the public understanding of the program and to ensure that such a program will not be contemplated by a future administration.
  • Paul Merrell on 16 May 14
     
    Horse puckey. The quoted article is misleading, attempting to conflate two distinct sets of documents that the Court ordered the CIA to disclose after removing all properly classified information. The duty to disclose segregable portions of  records that are not classified has been in place since the early 70s. It should have been done without a lawsuit having been filed and litigated. I.e.,it was a court order the CIA knew was coming since it first received the FOIA request from the ACLU. One set is the CIA response to the Senate Committee. The other set is the DoJ's Office of Legal Counsel memoranda on the legality of torture techniques. not documents documenting the torture itself and not the CIA response to the Senate Committee. Even if he CIA really needed more time for the documents in the Senate group, the legal memoranda could be shorn of classified information in a mater of hours, not days, weeks, or months.  It's the legal memoranda disclosure that CIA and DOJ are really trying to delay. At least two of them were written and/or signed by a former head of the DoJ Office of Legal Counsel whose nomination to the First Circuit Court of Appeals is now pending in Congress. And it's crystal clear that he signed memoranda arguing that torture was legal, which bears directly on his fitness to become a federal appellate judge. It takes a lawyer without ethics or morality to argue that torture is legal. It's not, under either U.S. law or the Geneva Conventions governing warfare. Neither  is grabbing people and turning them over to other governments for torture.  Those memoranda will establish that the nominee is a war criminal. We know this because we have already had a preview in the form of a white paper on the topic released by the White House last year that it's known the same nominee had worked on. And the legal arguments in that white paper are preposterous.   The delay attempt is transparently in aid of pushing that nomination through Congress before
Paul Merrell

Cybersecurity Information Sharing: A Legal Morass, Says CRS - 0 views

fas.org/...info-sharing-crs

cybersecurity legislation CRS nuclear-weapons

shared by Paul Merrell on 25 Mar 15 - No Cached
  • Several pending bills would promote increased sharing of cybersecurity-related information — such as threat intelligence and system vulnerabilities — in order to combat the perceived rise in the frequency and intensity of cyber attacks against private and government entities. But such information sharing is easier said than done, according to a new report from the Congressional Research Service, because it involves a thicket of conflicting and perhaps incompatible laws and policy objectives. “The legal issues surrounding cybersecurity information sharing… are complex and have few certain resolutions.” A copy of the CRS report was obtained by Secrecy News. See Cybersecurity and Information Sharing: Legal Challenges and Solutions, March 16, 2015. Cyber information sharing takes at least three different forms: the release of cyber intelligence from government to the private sector, information sharing among private entities, and the transfer of threat information from private entities to government agencies.
  • “While collectively these three variants on the concept of cyber-information sharing have some commonalities, each also raises separate legal challenges that may impede cyber-intelligence dissemination more generally,” said the CRS report, which examines the legal ramifications of each category in turn. Among the concerns at issue are: the potential for liability associate with disclosure of cybersecurity information, inappropriate release of private information through open government laws, loss of intellectual property, and potential compromise of personal privacy rights. All of these create a legal morass that may be unreconcilable. “A fundamental question lawmakers may need to contemplate is how restrictions that require close government scrutiny and control over shared cyber-information can be squared with other goals of cyber-information sharing legislation, like requirements that received information be disseminated in an almost instantaneous fashion,” the CRS report said.
  • “Ultimately, because the goals of cyber-information legislation are often diametrically opposed, it may simply be impossible for information sharing legislation to simultaneously promote the rapid and robust collection and dissemination of cyber-intelligence by the federal government, while also ensuring that the government respects the property and privacy interests implicated by such information sharing,” the report said. Other new or newly updated CRS reports that Congress has withheld from public distribution include the following. Cybersecurity: Authoritative Reports and Resources, by Topic, March 13, 2015
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  • U.S. Strategic Nuclear Forces: Background, Developments, and Issues, March 18, 2015
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