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Latif v. Holder :: Ninth Circuit :: US Courts of Appeals Cases :: US Federal Case Law :... - 0 views

law.justia.com/...11-35407-2012-07-26.html freedom to travel constitutional law no-fly list
shared by Paul Merrell on 27 Jul 12 - No Cached
  • Plaintiffs were United States citizens or legal permanent residents who had good reason to believe they were on the Terrorist Screening Center's (TSC) no-fly list (List). They initially submitted grievances through the redress program run by the Transportation Security Administration (TSA), but the government refused to confirm or deny their inclusion on the List. Rather than continuing to pursue their administrative grievances with the TSA, Plaintiffs filed this action against the directors of the TSC and FBI and the attorney general, challenging the TSA's grievance procedures. The district court dismissed the case, holding that TSA was a necessary party to the litigation but that TSA could not feasibly be joined in the district court due to 49 U.S.C. 46110, which grants federal courts of appeals exclusive jurisdiction to review TSA's final orders. The Ninth Circuit Court of Appeals reversed, holding (1) section 46110 does not strip the district court of federal question jurisdiction over substantive challenges to the inclusion of one's name on the List; and (2) the district court's determination that TSA was a necessary party was not an abuse of discretion, but the court erred in holding that joinder of TSA was infeasible in light of section 46110.
  • Paul Merrell on 27 Jul 12
     
    The U.S. Ninth Circuit Court of Appeals strikes down a lower court ruling that in effect would have prevented people from challenging their placement on the Terrorist Screening Center's "no-fly list." The Court of Appeals cleared the way for the plaintiffs to sue the heads of three federal agencies for failure to provide a meaningful Due Process procedure for them to respond to the evidence that landed them on the list. A big blow for freedom from arbitrary government  action.   
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Obama to Place Some Restraints on Surveillance - NYTimes.com - 0 views

www.nytimes.com/...hamper-surveillance-court.html surveillance state NSA Obama Obama-decision
shared by Paul Merrell on 16 Jan 14 - No Cached
  • President Obama will issue new guidelines on Friday to curtail government surveillance, but will not embrace the most far-reaching proposals of his own advisers and will ask Congress to help decide some of the toughest issues, according to people briefed on his thinking.Mr. Obama plans to increase limits on access to bulk telephone data, call for privacy safeguards for foreigners and propose the creation of a public advocate to represent privacy concerns at a secret intelligence court. But he will not endorse leaving bulk data in the custody of telecommunications firms, nor will he require court permission for all so-called national security letters seeking business records.
  • President Obama will issue new guidelines on Friday to curtail government surveillance, but will not embrace the most far-reaching proposals of his own advisers and will ask Congress to help decide some of the toughest issues, according to people briefed on his thinking.Mr. Obama plans to increase limits on access to bulk telephone data, call for privacy safeguards for foreigners and propose the creation of a public advocate to represent privacy concerns at a secret intelligence court. But he will not endorse leaving bulk data in the custody of telecommunications firms, nor will he require court permission for all so-called national security letters seeking business records.
  • The emerging approach, described by current and former government officials who insisted on anonymity in advance of Mr. Obama’s widely anticipated speech, suggested a president trying to straddle a difficult line in hopes of placating foreign leaders and advocates of civil liberties without a backlash from national security agencies. The result seems to be a speech that leaves in place many current programs, but embraces the spirit of reform and keeps the door open to changes later. The decision to provide additional privacy protections for non-American citizens or residents, for instance, largely codifies existing practices but will be followed by a 180-day study by the director of national intelligence about whether to go further. Likewise, instead of taking the storage of bulk data out of government hands, as recommended by a review panel he appointed, Mr. Obama will leave it in place for now and ask lawmakers to weigh in.The blend of decisions, to be outlined in a speech at the Justice Department and in a presidential guidelines memorandum, will be Mr. Obama’s highest-profile response to the disclosures about the National Security Agency made in recent months by Edward J. Snowden, a former N.S.A. contractor who has fled to Russia.
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  • The developments came as the nation’s judiciary waded into the highly charged debate. In a letter made public on Tuesday, a judge designated by Chief Justice John G. Roberts Jr. to express the views of the judicial branch warned that some changes under consideration would have a negative “operational impact” on a secret foreign intelligence court.Judge John D. Bates, a former chief judge of the Foreign Intelligence Surveillance Court, urged Mr. Obama and Congress not to alter the way the court is appointed or to create an independent public advocate to argue against the Justice Department in secret proceedings. Any such advocate, he wrote, should instead be appointed only when the court decided one was needed.Judge Bates objected to the workload of requiring that courts approve all national security letters, which are administrative subpoenas allowing the F.B.I. to obtain records about communications and financial transactions without court approval. And he raised concerns about greater public disclosure of court rulings, arguing that unclassified summaries would be “likely to promote confusion and misunderstanding.”
  • The judge’s letter, versions of which he sent to the leaders of several congressional committees, was released as all five members of Mr. Obama’s surveillance review group testified Tuesday before the Senate Judiciary Committee, seeking support for their recommendations.Illustrating the cross-pressures on the president, the advisers argued for the appointment of the independent version of a public advocate, a recommendation the president is expected to follow, though it is not clear how he will structure the position.
  • The judge’s objection to the proposal on national security letters dovetailed with that of the F.B.I. director, James B. Comey, who argued it would be inefficient to have to go to a judge each time records were sought. Mr. Obama has decided not to require court approval in every case, but might still require it in some circumstances, according to one administration official.Mr. Obama will cut back on the number of people whose phone records can be examined by the N.S.A. through its bulk data program. Currently the agency can scrutinize call records of people as far as three steps, or “hops,” removed from a suspect. Mr. Obama’s review panel proposed limiting searches to people just two steps removed. He is also likely to cut down the number of years such data can be retained; currently it is deleted after five years.
  • But the president will not, at least for now, back the panel’s suggestion that telecommunications firms keep such data and that the government be allowed to tap into those databases only when necessary. Intelligence officials complained it would be inefficient to have to go to multiple companies, so some officials proposed creating an independent consortium to store the data instead.Mr. Obama has decided against keeping the data at the private providers because they do not want that responsibility, officials said, and no independent consortium currently exists. As a result, he will ask Congress to work with him to determine the best way to store the data.
  • The letter by Judge Bates was accompanied by 15 pages of often specific comments about possible surveillance reforms.It is highly unusual for judges to weigh in on public policy debates involving the other two branches of government, but Judge Bates, the director of the Administrative Office of the United States Court, said that Chief Justice Roberts had designated him to “act as a liaison” and that he had consulted other judges.
  • Paul Merrell on 16 Jan 14
     
    I keep wondering if Barack Obama just might be the most timid President the U.S. has ever had. Certainly, he lacks the courage to lead the nation. 
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Data Transfer Pact Between U.S. and Europe Is Ruled Invalid - The New York Times - 0 views

www.nytimes.com/...-union-us-data-collection.html surveillance state NSA-reform EUCJ litigation safe-harbor
shared by Paul Merrell on 06 Oct 15 - No Cached
  • Europe’s highest court on Tuesday struck down an international agreement that allowed companies to move digital information like people’s web search histories and social media updates between the European Union and the United States. The decision left the international operations of companies like Google and Facebook in a sort of legal limbo even as their services continued working as usual.The ruling, by the European Court of Justice, said the so-called safe harbor agreement was flawed because it allowed American government authorities to gain routine access to Europeans’ online information. The court said leaks from Edward J. Snowden, the former contractor for the National Security Agency, made it clear that American intelligence agencies had almost unfettered access to the data, infringing on Europeans’ rights to privacy. The court said data protection regulators in each of the European Union’s 28 countries should have oversight over how companies collect and use online information of their countries’ citizens. European countries have widely varying stances towards privacy.
  • Data protection advocates hailed the ruling. Industry executives and trade groups, though, said the decision left a huge amount of uncertainty for big companies, many of which rely on the easy flow of data for lucrative businesses like online advertising. They called on the European Commission to complete a new safe harbor agreement with the United States, a deal that has been negotiated for more than two years and could limit the fallout from the court’s decision.
  • Some European officials and many of the big technology companies, including Facebook and Microsoft, tried to play down the impact of the ruling. The companies kept their services running, saying that other agreements with the European Union should provide an adequate legal foundation.But those other agreements are now expected to be examined and questioned by some of Europe’s national privacy watchdogs. The potential inquiries could make it hard for companies to transfer Europeans’ information overseas under the current data arrangements. And the ruling appeared to leave smaller companies with fewer legal resources vulnerable to potential privacy violations.
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  • “We can’t assume that anything is now safe,” Brian Hengesbaugh, a privacy lawyer with Baker & McKenzie in Chicago who helped to negotiate the original safe harbor agreement. “The ruling is so sweepingly broad that any mechanism used to transfer data from Europe could be under threat.”At issue is the sort of personal data that people create when they post something on Facebook or other social media; when they do web searches on Google; or when they order products or buy movies from Amazon or Apple. Such data is hugely valuable to companies, which use it in a broad range of ways, including tailoring advertisements to individuals and promoting products or services based on users’ online activities.The data-transfer ruling does not apply solely to tech companies. It also affects any organization with international operations, such as when a company has employees in more than one region and needs to transfer payroll information or allow workers to manage their employee benefits online.
  • But it was unclear how bulletproof those treaties would be under the new ruling, which cannot be appealed and went into effect immediately. Europe’s privacy watchdogs, for example, remain divided over how to police American tech companies.France and Germany, where companies like Facebook and Google have huge numbers of users and have already been subject to other privacy rulings, are among the countries that have sought more aggressive protections for their citizens’ personal data. Britain and Ireland, among others, have been supportive of Safe Harbor, and many large American tech companies have set up overseas headquarters in Ireland.
  • “For those who are willing to take on big companies, this ruling will have empowered them to act,” said Ot van Daalen, a Dutch privacy lawyer at Project Moore, who has been a vocal advocate for stricter data protection rules. The safe harbor agreement has been in place since 2000, enabling American tech companies to compile data generated by their European clients in web searches, social media posts and other online activities.
  • Paul Merrell on 06 Oct 15
     
    Another take on it from EFF: https://www.eff.org/deeplinks/2015/10/europes-court-justice-nsa-surveilance Expected since the Court's Advocate General released an opinion last week, presaging today's opinion.  Very big bucks involved behind the scenes because removing U.S.-based internet companies from the scene in the E.U. would pave the way for growth of E.U.-based companies.  The way forward for the U.S. companies is even more dicey because of a case now pending in the U.S.  The Second U.S. Circuit Court of Appeals is about to decide a related case in which Microsoft was ordered by the lower court to produce email records stored on a server in Ireland. . Should the Second Circuit uphold the order and the Supreme Court deny review, then under the principles announced today by the Court in the E.U., no U.S.-based company could ever be allowed to have "possession, custody, or control" of the data of E.U. citizens. You can bet that the E.U. case will weigh heavily in the Second Circuit's deliberations.  The E.U. decision is by far and away the largest legal event yet flowing out of the Edward Snowden disclosures, tectonic in scale. Up to now, Congress has succeeded in confining all NSA reforms to apply only to U.S. citizens. But now the large U.S. internet companies, Google, Facebook, Microsoft, Dropbox, etc., face the loss of all Europe as a market. Congress *will* be forced by their lobbying power to extend privacy protections to "non-U.S. persons."  Thank you again, Edward Snowden.
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Supreme Court Strikes Out KBR - 0 views

www.pogo.org/...eme-court-strikes-out-kbr.html war & peace Iraq Afghanistan KBR Halliburton veterans litigation
shared by Paul Merrell on 24 Jan 15 - No Cached
  • The U.S. Supreme Court came out in favor of contractor accountability this week, rejecting attempts by KBR and its former parent company, Halliburton, to dismiss three lawsuits accusing them of harming service members and civilians in Iraq and Afghanistan. (KBR, one of the largest reconstruction and logistics contractors in Iraq and Afghanistan, was part of Halliburton until 2007.) The Supreme Court, which denied the companies’ petitions without comment, left intact lower court rulings allowing these lawsuits to proceed to trial:
  • Metzgar v. KBR Dozens of U.S. military personnel and civilian employees claim they suffered harm as a result of KBR’s waste disposal and water treatment practices on military bases in Iraq and Afghanistan. The case involves KBR’s Logistics Civil Augmentation Program (LOGCAP) III contract. The plaintiffs allege that the company burned large quantities of solid waste in toxin-spewing open-air burn pits and provided contaminated water. Harris v. KBR Cheryl Harris seeks to hold KBR and Halliburton accountable for the death of her son, Staff Sergeant Ryan Maseth, who was electrocuted in 2008 while showering at his base in Iraq. KBR’s responsibility for maintaining the shower facilities was also part of the LOGCAP III contract.
  • McManaway v. KBR American and British soldiers allege KBR knowingly exposed them to the hazardous chemical sodium dichromate while they were posted at the Qarmat Ali water treatment facility in Iraq in 2003. The soldiers were protecting KBR employees who were restoring the facility. This case involves the Restore Iraqi Oil (RIO) contract, which contained a provision requiring the government to indemnify KBR for any property damage, injury, or death occurring on the contract and all related legal expenses. The government is refusing to indemnify KBR for Qarmat Ali litigation, which has already resulted in an $81 million judgment against the company in a case filed in Oregon. Both the indemnification decision and the Oregon judgment are still mired in appeals, despite Congress urging the Pentagon last year to “take control of the litigation process” and hasten its conclusion. “With KBR’s immunity petitions rejected by the Supreme Court in three separate cases, the wait for the veterans’ cases to proceed to trial has finally ended,” attorney Michael Doyle, who represents the plaintiffs in in the Metzgar and McManaway cases, told the Project On Government Oversight. “There can’t be a place in American law for blanket immunity for military contractor misconduct harming our troops and others, and we look forward to the next trial soon.”
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  • The plaintiffs are suing the contractors because the government is generally immune from personal injury lawsuits. Contingency operation contractors like KBR and Halliburton argue they are also immune because they function essentially as an extension of the military. Ever since the first bombs fell on Afghanistan more than 13 years ago, contractor civil and criminal liability in war zones has been a hotly debated and litigated issue. However, recent decisions by the Supreme Court and the federal circuit courts give us hope that this area of law is becoming more settled and contractor accountability cases will have an easier time getting to trial.
  • Paul Merrell on 24 Jan 15
     
    There's an error in the article where it states that "the government is generally immune from personal injury lawsuits." In fact the federal government generally can be sued for personal injury under the Federal Tort Claims Act, but there is an exception created by the Supreme Court in Feres v. United States: the federal government has no liabllity for personal injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces. See for an overview, https://en.wikipedia.org/wiki/Feres_v._United_States However, veterans are entitled in such circumstances to Department of Veteran Affairs disability benefits and medical treatment. Military contractors are very fond of trying to piggy-back onto the Feres Doctrine but it rarely works. I've read a fair bit about KBR's conduct involved. KBR even had multi-million-dollar incinerators there for waste disposal that the government paid for (and their transport to the war zones) to safely dispose of wastes without endangering soldiers, but never set them up. That is pretty solid evidence that they knew of the hazard from using open burn pits. And it's also pretty strong proof that our military auditors in charge of checking contract compliance gave KBR a pass. Did money change hands between KBR and the auditors? War profiteering at its finest. "There is such a thirst for gain [among military suppliers]... that it is enough to make one curse their own Species, for possessing so little virtue and patriotism." George Washington.
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Great Privacy Essay: Fourth Amendment Doctrine in the Era of Total Surveillance | CIO - 0 views

www.cio.com/...era-of-total-surveillance.html privacy the-Fourth-Amendment
shared by Gary Edwards on 04 Aug 14 - No Cached
  • Gary Edwards on 04 Aug 14
     
    "'Failing Expectations: Fourth Amendment Doctrine in the Era of Total Surveillance' is a thought-provoking essay written by a Fordham University law professor about how the reasonable expectation test for privacy is failing to protect us. Add into our networked world the third-party doctrine and we have little protection against unreasonable searches and seizures."
  • Paul Merrell on 05 Aug 14
     
    It doesn't detract substantially from the essay's central thesis, but an important part of the learned professor's heartfelt desires were delivered in a Supreme Court decision just decided, after the essay was published, Reilly v. California, http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf The Court held in relevant part: "We also reject the United States' final suggestion that officers should always be able to search a phone's call log, as they did in Wurie's case. The Government relies on Smithv. Maryland, 442 U. S. 735 (1979), which held that no warrant was required to use a pen register at telephone company premises to identify numbers dialed by a particular caller. The Court in that case, however, concluded that the use of a pen register was not a "search" at all under the Fourth Amendment. See id., at 745-746. There is no dispute here that the officers engaged in a search of Wurie's cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label "my house" in Wurie's case." The effect there was to confine Smith v. Maryland, the foundation of the third-party doctrine, to its particular facts. In other words, the third-party doctrine is now confined to connected telephone numbers, the connect time, and the duration of the call. If any other metadata is gathered, such as location data, the third-party doctrine no longer applies. When you read the rest of the Reilly decision, you see a unanimous Supreme Court shooting down one government defense after another that have been used in the NSA's defense to mass telecommunications surveillance. But most interestingly, the Court unmistakably has laid the groundwork for a later decision drastically cutting back on digital surveillance without a search warrant based on particularized probable cause to believe that evidence of a specific crime has occurred and that the requested sear
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Major Banksters, Governmental Officials and Their Comrade Capitalists Targets of Spire ... - 0 views

www.marketwatch.com/...ted-states-treasury-2012-10-25 Banksters Federal-Reserve-Bankster-Cartel
shared by Gary Edwards on 02 Nov 12 - No Cached
  • Gary Edwards on 02 Nov 12
     
    "NEW YORK, Oct. 25, 2012 /PRNewswire via COMTEX/ -- Spire Law Group, LLP's national home owners' lawsuit, pending in the venue where the "Banksters" control their $43 trillion racketeering scheme (New York) - known as the largest money laundering and racketeering lawsuit in United States History and identifying $43 trillion ($43,000,000,000,000.00) of laundered money by the "Banksters" and their U.S. racketeering partners and joint venturers - now pinpoints the identities of the key racketeering partners of the "Banksters" located in the highest offices of government and acting for their own self-interests. In connection with the federal lawsuit now impending in the United States District Court in Brooklyn, New York (Case No. 12-cv-04269-JBW-RML) - involving, among other things, a request that the District Court enjoin all mortgage foreclosures by the Banksters nationwide, unless and until the entire $43 trillion is repaid to a court-appointed receiver - Plaintiffs now establish the location of the $43 trillion ($43,000,000,000,000.00) of laundered money in a racketeering enterprise participated in by the following individuals (without limitation): Attorney General Holder acting in his individual capacity, Assistant Attorney General Tony West, the brother in law of Defendant California Attorney General Kamala Harris (both acting in their individual capacities), Jon Corzine (former New Jersey Governor), Robert Rubin (former Treasury Secretary and Bankster), Timothy Geitner, Treasury Secretary (acting in his individual capacity), Vikram Pandit (recently resigned and disgraced Chairman of the Board of Citigroup), Valerie Jarrett (a Senior White House Advisor), Anita Dunn (a former "communications director" for the Obama Administration), Robert Bauer (husband of Anita Dunn and Chief Legal Counsel for the Obama Re-election Campaign), as well as the "Banksters" themselves, and their affiliates and conduits. The lawsuit alleges serial violations of the United States Patri
  • Gary Edwards on 02 Nov 12
     
    This is the first time anyone has tried to go after the Bankster class of midievil (mediæval) elites to recover theft of funds. Charges include racketeering, fraud and international money laundering. The mass tort action is now in the Brooklyn Federal Courts. Dead bodies are starting to show up as the Banksters move to shut down press coverage. Amazing stuff.
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In rare loss, FISA court rejects Justice Dept request to retain data - RT USA - 0 views

rt.com/...isa-rejects-justice-retain-574 surveillance state NSA DoJ FISA-Court ACLU litigation
shared by Paul Merrell on 12 Mar 14 - No Cached
  • The federal surveillance court that has approved all but a fraction of the NSA's intelligence requests nonetheless rejected a petition by the government to retain phone records for longer than five years, as is currently allowed.
  • The US Foreign Intelligence Surveillance Court (also known as the FISA Court) was established in 1978 as a gatekeeper that would approve or deny surveillance warrants against suspect foreign enemies living inside the United States. Since that date, the court has denied 11 of the nearly 34,000 surveillance requests by the government. While judges on the court have said that they force the government to make changes to approximately one-quarter of those requests, the .03 percent decline rate has been startling to civil liberties advocates. Judge Reggie Walton acted as a rare bump in that road this week when he denied the US Department of Justice’s request to keep the telephone metadata collected by the NSA past the five-year deadline. The Obama administration had asked the FISA Court to bend the rules so that the Justice Department could adequately defend itself from a series of lawsuits filed by various groups, the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) chief among them. US attorneys argued in a court filing last month that when “preservation of information is required, the duty to preserve supersedes statutory or regulatory requirements or records-management policies that would otherwise result in the destruction of the information.”
  • Authorities proposed that the information be retained, although they sought to make it illegal for any NSA analyst to examine the data as they would information that is not five years old. That is not enough of an excuse, Walton ruled, saying that he found that rationale to be “simply unresponsive” and that the groups that have filed suit are hoping for “the destruction of the [telephone] metadata, not its retention.” The judge concluded that any reason to keep the telephone records is outweighed by the damage that such a decision would do to privacy. Justice Department attorneys may have expected such a decision from Walton who, even as chief judge of the FISA Court, has admitted skepticism with the program since the government’s methods were first revealed. Judge Walton told The Washington Post in August that the court, which is supposed to act as the final barometer, is unable to verify the very information provided by law enforcement. “The FISC is forced to rely upon the accuracy of the information that is provided to the court,” he wrote. “The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.”
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How a Court Secretly Evolved, Extending U.S. Spies' Reach - NYTimes.com - 0 views

www.nytimes.com/...tion-extended-spies-reach.html surveillance state NSA CIA FBI FISA-Court legalres must-read
shared by Paul Merrell on 12 Mar 14 - No Cached
  • Previously, with narrow exceptions, an intelligence agency was permitted to disseminate information gathered from court-approved wiretaps only after deleting irrelevant private details and masking the names of innocent Americans who came into contact with a terrorism suspect. The Raw Take order significantly changed that system, documents show, allowing counterterrorism analysts at the N.S.A., the F.B.I. and the C.I.A. to share unfiltered personal information.
  • The leaked documents that refer to the rulings, including one called the “Large Content FISA” order and several more recent expansions of powers on sharing information, add new details to the emerging public understanding of a secret body of law that the court has developed since 2001. The files help explain how the court evolved from its original task — approving wiretap requests — to engaging in complex analysis of the law to justify activities like the bulk collection of data about Americans’ emails and phone calls.“These latest disclosures are important,” said Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists. “They indicate how the contours of the law secretly changed, and they represent the transformation of the Foreign Intelligence Surveillance Court into an interpreter of law and not simply an adjudicator of surveillance applications.”
  • The number of Americans whose unfiltered personal information has been shared among agencies is not clear. Since the Sept. 11 attacks, the court has approved about 1,800 FISA orders each year authorizing wiretaps or physical searches — which can involve planting bugs in homes or offices, or copying hard drives — inside the United States. But the government does not disclose how many people had their private conversations monitored as a result.
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  • The new disclosures come amid a debate over whether the surveillance court, which hears arguments only from the Justice Department, should be restructured for its evolving role. Proposals include overhauling how judges are selected to serve on it and creating a public advocate to provide adversarial arguments when the government offers complex legal analysis for expanding its powers.
  • The Raw Take order, back in 2002, also relaxed limits on sharing private information about Americans with foreign governments. The bar was higher for sharing with outsiders: Raw information was not provided, and even information deemed relevant about a terrorism issue required special approval. Under procedures described in a 1984 report, only the attorney general could authorize such dissemination. But on Aug. 20, 2002, Attorney General John Ashcroft, citing the recent order, secretly issued new procedures allowing the N.S.A. to provide information to foreign governments without his clearance. “If the proposed recipient(s) of the dissemination have a history of human rights abuses, that history should be considered in assessing the potential for economic injury, physical harm, or other restriction of movement, and whether the dissemination should be made,” he wrote.
  • Paul Merrell on 12 Mar 14
     
    NYT publishes a new treasure trove of Snowden documents. This lead article links to documents and links to other articles that link documents. A must-read for those interested in how the FISA Court and Congress "grew" the law governing the scope of permissible surveillance and the scope of who would be given access to the fruits of that surveillance. 
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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
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Irish court peels off gloves, hands Facebook PROBE request to ECJ * The Register - 0 views

www.theregister.co.uk/...ers_facebook_prism_case_to_ecj surveillance state NSA Ireland EU-Court-of-Justice Facebook
shared by Paul Merrell on 19 Jun 14 - No Cached
  • The High Court in Ireland has referred a review of a complaint against Facebook to Europe's top court. The complaint alleges the social network shared EU users' data with the US National Security Agency.The European Court of Justice is to assess whether EU law needs to be updated in light of the PRISM revelations, which could have a knock-on effect on tech firms from Facebook to Google. <a href="http://pubads.g.doubleclick.net/gampad/jump?iu=/6978/reg_policy/government&sz=300x250%7C300x600&tile=3&c=33U6KvJawQrMoAAAUTy6EAAAJ5&t=ct%3Dns%26unitnum%3D3%26unitname%3Dwww_top_mpu%26pos%3Dtop%26test%3D0" target="_blank"> <img src="http://pubads.g.doubleclick.net/gampad/ad?iu=/6978/reg_policy/government&sz=300x250%7C300x600&tile=3&c=33U6KvJawQrMoAAAUTy6EAAAJ5&t=ct%3Dns%26unitnum%3D3%26unitname%3Dwww_top_mpu%26pos%3Dtop%26test%3D0" alt=""></a> Austrian law student Maximillian Schrems took Facebook to court in Ireland, where the social network’s European HQ is located, over the revelations from NSA whistleblower Edward Snowden that personal data held by tech firms like Facebook was routinely being slurped by US spooks.
  • Schrems first asked the Irish Data Commissioner to investigate the legality of Facebook Ireland sending his info over to the States, where it could be seen by the security services, but when the commissioner refused to investigate, he sought a judicial review at the High Court.The Commissioner had ruled that Schrems didn’t have a case because he couldn’t prove that anyone had slurped his data in particular and anyway, the EU has an agreement with the US under the “Safe Harbour” principle decided way back in 2000. This principle governs data flow from Europe to United States and allows US firms to self-certify themselves as respectful of European data protection rules.High Court Justice Gerard Hogan said Schrems did not need to prove that his own data had been spied upon to make a complaint.“Quite obviously, Mr Schrems cannot say whether his own personal data has ever been accessed or whether it would ever be accessed by the US authorities,” he wrote in his ruling.
  • “But even if this were considered to be unlikely, he is nonetheless certainly entitled to object to a state of affairs where his data are transferred to a jurisdiction which, to all intents and purposes, appears to provide only a limited protection against any interference with that private data by the US security authorities.”However, he said that only the European Court of Justice could decide that individual member states were allowed to look past the Safe Harbour principle or reinterpret its meaning. Hogan said that Schrems, who had filed on behalf of the Europe-v-Facebook group, really had a problem with this principle and acknowledged that there may be an argument for the idea that the rule was outdated.“The Safe Harbour Regime… may reflect a somewhat more innocent age in terms of data protection,” he said. “This Regime came into force prior to the advent of social media and, of course, before the massive terrorist attacks on American soil which took place on September 11th, 2001.”
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  • Hogan also admitted that the PRISM programme of surveillance was wrong by the letter of Irish law, which protects people’s data and the inviolability of their homes.“It is very difficult to see how the mass and undifferentiated accessing by state authorities of personal data generated perhaps especially with the home… could survive constitutional scrutiny,” he said.“The potential for abuse in such cases would be enormous and might even give rise to the possibility that no facet of private or domestic life with the home would be immune from potential state scrutiny.“Such a state of affairs – with its gloomy echoes of the mass state surveillance programmes conducted in totalitarian states such as the German Democratic Republic of Ulbricht and Honecker – would be totally at odds with the basic premises and fundamental values of the Constitution.”
  • However, he said that Irish law is pre-empted by EU law in this case and the Court of Justice needed to assess whether the interpretation of the Safe Harbour Regime needed to be re-evaluated.Any verdict from the European court will likely apply to all US companies that have participated in PRISM and operate in the region, Schrems said of the ruling.“We did not prepare for a direct reference to the ECJ, but this is the best outcome we could have wished for,” he said. “We will study the judgment in detail and will take the next steps as soon as possible.” ®
  • Paul Merrell on 19 Jun 14
     
    If you're in the market to purchase a few cloud server farms located in the U.S., you may want to hold off until the EU Court of Justice rules. Prices could be tumbling shortly afterward.  In related news, Reps. Zoe Lofgren and Thomas Massie have introduced a bipartisan amendment to the annual Department of Defense Appropriations bill (H.R. 4870) that would prohibit use of the bill's funds to: 1) Conduct warrantless searches of Americans' communications collected and stored by the NSA under Section 702 of the FISA Amendments Act. 2) Mandate or request that backdoors for surveillance be built into products or services, except those covered under the Communications Assistance for Law Enforcement Act.
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Warrantless airport seizure of laptop "cannot be justified," judge rules | Ars Technica - 0 views

arstechnica.com/...annot-be-justified-judge-rules surveillance state warrantless-search laptop border-search-&-seizure litigation
shared by Paul Merrell on 15 May 15 - No Cached
  • The US government's prosecution of a South Korean businessman accused of illegally selling technology used in aircraft and missiles to Iran was dealt a devastating blow by a federal judge. The judge ruled Friday that the authorities illegally seized the businessman's computer at Los Angeles International Airport as he was to board a flight home. The authorities who were investigating Jae Shik Kim exercised the border exception rule that allows the authorities to seize and search goods and people—without court warrants—along the border and at airport international terminals. US District Court judge Amy Berman Jackson of the District of Columbia noted that the Supreme Court has never directly addressed the issue of warrantless computer searches at an international border crossing, but she ruled (PDF) the government used Kim's flight home as an illegal pretext to seize his computer. Authorities then shipped it 150 miles south to San Diego where the hard drive was copied and examined for weeks, but the judge said the initial seizure "surely cannot be justified." After considering all of the facts and authorities set forth above, then, the Court finds, under the totality of the unique circumstances of this case, that the imaging and search of the entire contents of Kim’s laptop, aided by specialized forensic software, for a period of unlimited duration and an examination of unlimited scope, for the purpose of gathering evidence in a pre-existing investigation, was supported by so little suspicion of ongoing or imminent criminal activity, and was so invasive of Kim’s privacy and so disconnected from not only the considerations underlying the breadth of the government’s authority to search at the border, but also the border itself, that it was unreasonable.
  • "The government points to its plenary authority to conduct warrantless searches at the border. It posits that a laptop computer is simply a 'container' that was examined pursuant to this authority, and it submits that the government’s unfettered right to search cargo at the border to protect the homeland is the beginning and end of the matter," the judge wrote. Evidence discovered on his computer of his alleged involvement in the conspiracy that won an indictment is now suppressed, and it cannot be used against him according to the ruling. The authorities took the man's computer in 2012 for national security reasons but allowed him to board his flight home. The government did not comment on the decision. Judge Berman Jackson questioned whether the border search exception should apply to laptops because they carry much more private information than, say, a briefcase. Judge Jackson cited last year's Supreme Court case, known as Riley, in which the justices ruled unanimously that the authorities generally may not search the mobile phones of those they arrest unless they have a court warrant.
  • The Supreme Court said that "Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom." Seizing on that high court opinion, Judge Berman Jackson wrote: Applying the Riley framework, the national security concerns that underlie the enforcement of export control regulations at the border must be balanced against the degree to which Kim’s privacy was invaded in this instance. And as was set forth above, while the immediate national security concerns were somewhat attenuated, the invasion of privacy was substantial: the agents created an identical image of Kim’s entire computer hard drive and gave themselves unlimited time to search the tens of thousands of documents, images, and emails it contained, using an extensive list of search terms, and with the assistance of two forensic software programs that organized, expedited, and facilitated the task. Based upon the testimony of both Special Agent Hamako and Special Agent Marshall, the Court concludes that wherever the Supreme Court or the Court of Appeals eventually draws the precise boundary of a routine border search, or however either Court ultimately defines a forensic – as opposed to a conventional – computer search, this search was qualitatively and quantitatively different from a routine border examination, and therefore, it was unreasonable given the paucity of grounds to suspect that criminal activity was in progress.
  • Paul Merrell on 15 May 15
     
    The court's decision indicates that the Feds can still do a border search of a laptop but that they cross the line when they seize the computer for later forensic examination without a warrant. In this case, the government conducted the forensic examination before obtaining a warrant.
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Int'l Criminal Court's Examination of U.S. Treatment of Detainees Takes Shape | Just Se... - 0 views

justsecurity.org/...reatment-detainees-takes-shape war & peace Afghanistan U.S.-war-crimes ICC torture
shared by Paul Merrell on 06 Dec 14 - No Cached
  • On Tuesday, the Chief Prosecutor of the International Criminal Court announced, in the most explicit and detailed terms to date, that the U.S. treatment of detainees captured in the Afghanistan conflict is under examination by her office. The statement is included in the Office of the Prosecutor’s (OTP) annual “Report on Preliminary Examination Activities,” released on the eve of the Assembly of States Parties this month.
  • In particular, the OTP is assessing the degree to which national proceedings are underway with respect to the allegations underlying the examination.  Furthermore, an affirmative determination that there is a reasonable basis to proceed with an investigation is far from a finding of strong evidence of criminal wrongdoing. Nevertheless, the appearance of the latter is surely one issue on the minds of administration officials. David Bosco, for instance, reported that “the U.S. delegation urged the court not to publish the allegations, even in preliminary form. They warned that the world would see any ICC mention of possible American war crimes as evidence of guilt, even if the court never brought a formal case.”
  • Here are the key graphs: “94. The Office has been assessing available information relating to the alleged abuse of detainees by international forces within the temporal jurisdiction of the Court. In particular, the alleged torture or ill-treatment of conflict-related detainees by US armed forces in Afghanistan in the period 2003-2008 forms another potential case identified by the Office. In accordance with the Presidential Directive of 7 February 2002, Taliban detainees were denied the status of prisoner of war under article 4 of the Third Geneva Convention but were required to be treated humanely. In this context, the information available suggests that between May 2003 and June 2004, members of the US military in Afghanistan used so-called “enhanced interrogation techniques” against conflict-related detainees in an effort to improve the level of actionable intelligence obtained from interrogations. The development and implementation of such techniques is documented inter alia in declassified US Government documents released to the public, including Department of Defense reports as well as the US Senate Armed Services Committee’s inquiry. These reports describe interrogation techniques approved for use as including food deprivation, deprivation of clothing, environmental manipulation, sleep adjustment, use of individual fears, use of stress positions, sensory deprivation (deprivation of light and sound), and sensory overstimulation.
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  • The Prosecutor proceeds in 4 phases within any preliminary examination: (1) an initial assessment to analyze the seriousness of information received; (2) a jurisdictional analysis – the formal commencement of an examination involving “a thorough factual and legal assessment” of whether there is “a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court;” (3) an admissibility determination – assessing whether the gravity of the crimes or prospect of national investigations and prosecutions preclude the need for the ICC to proceed ; (4) prudential considerations — determining whether an investigation would serve the “interests of justice.” It appears that the examination of U.S. detention operations has reached the third phase and crossed over the important threshold of a finding that there is a reasonable basis to believe U.S. forces committed war crimes within the jurisdiction of the Court. Heller posited that some aspects of the Prosecutor’s Afghanistan examination had already reached this stage in 2013. The 2014 report provides further corroboration specifically with respect to U.S. detention practices. For example, paragraph 96 of the 2014 report states that the Office of the Prosecutor is now “analysing the relevance and genuineness of national proceedings by the competent national authorities for the alleged conduct described above as well as the gravity of the alleged crimes”—clearly a phase three inquiry. That said, paragraph 96 also states that the Office is “continuing to assess the seriousness and reliability of such allegations”—which sounds like phase two and even phase one.
  • 95. Certain of the enhanced interrogation techniques apparently approved by US senior commanders in Afghanistan in the period from February 2003 through June 2004, could, depending on the severity and duration of their use, amount to cruel treatment, torture or outrages upon personal dignity as defined under international jurisprudence. In addition, there is information available that interrogators allegedly committed abuses that were outside the scope of any approved techniques, such as severe beating, especially beating on the soles of the feet, suspension by the wrists, and threats to shoot or kill. 96. While continuing to assess the seriousness and reliability of such allegations, the Office is analysing the relevance and genuineness of national proceedings by the competent national authorities for the alleged conduct described above as well as the gravity of the alleged crimes.
  • The OTP is considering whether the war crimes of cruel treatment, torture or outrages upon personal dignity were committed by U.S. forces. Article 8 of the ICC statute places something of a qualification on the jurisdiction of the Court over war crimes. It states that the Court shall have jurisdiction over war crimes “in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.” In 2013, the Prosecutor’s annual report stated that the Office “continues to seek information to determine whether there is any reasonable basis to believe any such alleged acts, which could amount to torture or humiliating and degrading treatment, may have been committed as part of a policy.” That reference to the “as a part of policy” qualification does not appear in the 2014 report. And, on the contrary, the 2014 report highlights elements that indicate the existence of a policy such as the Presidential Directive of 7 February 2002 on the determination of POW status and the senior US commanders’ approval of interrogation techniques.
  • Will bilateral agreements between the US and Afghanistan preclude the ICC from investigating or prosecuting “U.S. persons”? One final question that might arise from these proceedings is the legal viability of the bilateral agreement between the United States and Afghanistan regarding the surrender of persons to the International Criminal Court (full text).  Since the case arises out of Afghanistan’s status under the ICC treaty, the United States might try to claim that the bilateral agreement provides US nationals and employees immunity for actions that took place in Afghanistan. I have briefly discussed the legal viability of such article 98 agreements in an  earlier post at Just Security.
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AP News : Both sides prepare for new Gaza war crimes probe - 0 views

m.apnews.com/...contentdetail.htm war & peace Israel Palestine Gaza ICC war crimes
shared by Paul Merrell on 05 Aug 14 - No Cached
  • In a replay of the last major Gaza conflict, human rights defenders are again accusing Israel and Hamas of violating the rules of war, pointing to what they say appear to be indiscriminate or deliberate attacks on civilians.In 2009, such war crimes allegations leveled by U.N. investigators - and denied by both sides at the time - never came close to reaching the International Criminal Court.Some Palestinians hope the outcome will be different this time, in part because President Mahmoud Abbas, as head of a U.N.-recognized state of Palestine, has since earned the right to turn directly to the court.Still, the road to the ICC, set up in 2002 to prosecute war crimes, is filled with formidable political obstacles.
  • Israel and the United States strongly oppose bringing any possible charges stemming from the Israeli-Palestinian conflict before the court, arguing such proceedings could poison the atmosphere and make future peace talks impossible.If Abbas seeks a war crimes investigation of Israel, he could lose Western support and expose Hamas - a major Palestinian player - to the same charges.
  • Unlike in 2009, Abbas has the option of turning to the court directly because of the upgrade in legal standing awarded by the U.N. General Assembly in 2012. At the time, the assembly recognized "Palestine" in the West Bank, Gaza and east Jerusalem as a non-member observer state, meeting the ICC requirement of accepting requests for jurisdiction from states over crimes committed in their territory.After 20 years of failed negotiations with Israel, many Palestinians believe the ICC offers the only opportunity to hold Israel accountable, not only for Gaza military operations, but for continued expansion of settlement-building on occupied lands. With daily scenes of Gaza carnage, the West Bank-based Abbas is under growing pressure to join the court.He still hesitates, because going after Israel at the ICC would signal a fundamental policy shift, instantly turning his tense relationship with Israel into a hostile one and creating a rift with the United States.
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  • He also has Hamas to consider, since action against Israel would likely trigger a war crimes investigation of Hamas as well. The Islamic militant group seized Gaza from Abbas in 2007, and relations between the two rivals remain tense. However, they reached a power-sharing agreement in the spring and Abbas does not want to return to confrontations with Hamas.Last week, Abbas told leaders of PLO factions in the West Bank that he would only turn to the ICC if Hamas agrees, in writing. Abbas aide Saeb Erekat told The Associated Press on Monday that he put the request to the top Hamas leader in exile, Khaled Mashaal, in a meeting in Doha last week. Erekat said he was told that Hamas needs time to decide.
  • Paul Merrell on 05 Aug 14
     
    Some conflicting reports on Palestine taking Israel to the International Criminal Court charging war crimes. The conflict may be because of the different times they were published This article published yesterday says that Abbas said last week that he would only do so if Hamas agrees and said he was awaiting a decision by Hamas. But the Haaretz live blog on Gaza says that "Palestinian Foreign Minister Riad al-Malki says after meeting prosecutors at the International Criminal Court [today] that there was "clear evidence" that Israel committed war crimes in  Gaza." http://www.haaretz.com/news/diplomacy-defense/1.608928 So it sounds like Palestine has initiated the process at the ICC and that Hamas leadership has decided to accept the risk that they will face war crime charges themselves. If so, that's a strong sign that some nation has agreed to bankroll the Palestine government if the U.S. ends its aid to Palestine. Most likely Qatar from what I've read. The U.N. Human Rights Council has already launched its own investigation of potential war crimes committed during Israel's latest invasion of Gaza. An article passed by me sometime during the last 48 hours that quoted the Chief Prosecutor at the ICC to the effect that she would act if Palestine filed charges but said that "the ball is in Palestine's court." The ICC has been widely criticized for its preference of convicting the leaders of African nations rather than of caucasian nations. Given that circumstance, the Court of 15 judges may welcome the Palestinian opportunity to prove that it is willing to convict leaders of a non-African nation. Certainly, Israel's occupation and colonization of Palestine since hostilities ceased in 1967 offers more than fertile ground for such a case. I have to admit that I enjoy my mental picture of Benjamin Netanyahu in chains standing in the Court's dock in The Hague. 
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Guantánamo hearing halted by supposed CIA 'black site' worker serving as war ... - 0 views

www.miamiherald.com/...article9600110.html war & peace 9-11-trial GITMO military-tribunal translator CIA torture
shared by Paul Merrell on 11 Feb 15 - No Cached
  • The 9/11 trial judge abruptly recessed the first hearing in the case since August on Monday after some of the alleged Sept. 11 plotters said they recognized a war court linguist as a former secret CIA prison worker.Alleged plot deputy Ramzi bin al Shibh, 42, made the revelation just moments into the hearing by informing the judge he had a problem with his courtroom translator. The interpreter, Bin al Shibh claimed, worked for the CIA during his 2002 through 2006 detention at a so-called “Black Site.”“The problem is I cannot trust him because he was working at the black site with the CIA, and we know him from there,” he said.This week’s is the first hearing for the five men accused of conspiring in the Sept. 11, 2001 attacks — that killed nearly 3,000 people in New York, the Pentagon and Pennsylvania — since the public release of portions of a sweeping Senate Intelligence Committee study of the agency’s secret prisons known as “The Torture Report.”
  • Instead the issue became, apparently, a stony-faced translator who was sitting alongside Bin al Shibh in court when the hearing started. Lawyers for the alleged mastermind, Khalid Sheik Mohammed, 49, and his nephew, Ammar al Baluchi, 37, said they learned about the recognition just as court began. The judge ordered a quick recess, excused Campoamor-Sanchez and summoned the chief prosecutor, Army Brig. Gen. Mark Martins, for questioning.Court resumed briefly with the linguist missing. Martins sought, and got, a continuing recess until 9 a.m. Wednesday, to look into the issue and file a written pleading with the court. Pleadings are sealed for at least 15 days for intelligence agencies’ scrub of secret information.Mohammed’s attorney, David Nevin, asked Pohl to order the suspected CIA worker to not leave this remote base in southeast Cuba and to submit to defense questioning.
  • Cheryl Bormann, attorney for another alleged plotter, Walid bin Attash, 36, told the judge, Army Col. James L. Pohl, that her client “was visibly shaken” at recognizing a man in the maximum-security war court.“My client relayed to me this morning that there is somebody in this courtroom who was participating in his illegal torture,” she said.Bormann said it was either “the biggest coincidence ever” or “part of the pattern of the infiltration of defense teams.” Monday’s hearing was supposed to start with a presentation by a Justice Department lawyer, Fernando Campoamor-Sanchez, on FBI agents secretly questioning members of the Bin al Shibh defense team. The Sept. 11 legal defense teams have called the FBI’s action spying on privileged attorney-client conversations.
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  • War court translators are provided by one of two Defense Department contractors paid by the Pentagon unit that runs the war court, called the Office of the Convening Authority for Military Commissions. It’s run by retired Marine Maj. Gen. Vaughn Ary, a former military lawyer. The contractors are Leidos and All World.Ary’s office provides a list of qualified translators to the Office of Military Commissions Defense unit, and, in the capital cases, each one gets a dedicated translator assigned to the team. Teams can object to the choice, and have done so in the past, as unsuitable, according to earlier war court sessions.The war court’s Chief Defense Counsel, Air Force Col. Karen Mayberry, said after the court session Monday that the translator sitting with Bin al Shibh in court was not permanently assigned to his team, or the 9/11 case. The Bin al Shibh team had lost its translator after an FBI investigation secretly questioned Sept. 11 defense team members. Monday’s translator, the one that Bin al Shibh said he recognized from a CIA prison, had worked for years on war court defense teams, but none with the Sept. 11 death-penalty case, according to Mayberry. Monday’s translator was filling in for this session because, although the Bin al Shibh team had chosen a new team translator, the new permanent translator had not yet gotten a security clearance, which can be a lengthy process.
  • Bin al Shibh and the other four men are accused of helping to orchestrate, train, and arrange travel for the 19 men who hijacked four U.S. passenger aircraft on Sept. 11, 2001. The prosecutor is seeking their execution, if they are convicted. The CIA held and interrogated them for three to four years in secret overseas prisons before they were brought to Guantánamo in September 2006. But even once they got here, they continued to be in CIA custody, according to the Senate report. Jay Connell, attorney for Baluchi, 37, said Sunday it is still not known when the agency relinquished control of the men, who are held in a secret prison called Camp 7.
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How Edward Snowden Changed Everything | The Nation - 0 views

www.thenation.com/...ard-snowden-changed-everything surveillance state Snowden Wizner state-of-play civil-liberties must-read
shared by Paul Merrell on 16 Nov 15 - No Cached
  • Ben Wizner, who is perhaps best known as Edward Snowden’s lawyer, directs the American Civil Liberties Union’s Speech, Privacy & Technology Project. Wizner, who joined the ACLU in August 2001, one month before the 9/11 attacks, has been a force in the legal battles against torture, watch lists, and extraordinary rendition since the beginning of the global “war on terror.” Ad Policy On October 15, we met with Wizner in an upstate New York pub to discuss the state of privacy advocacy today. In sometimes sardonic tones, he talked about the transition from litigating on issues of torture to privacy advocacy, differences between corporate and state-sponsored surveillance, recent developments in state legislatures and the federal government, and some of the obstacles impeding civil liberties litigation. The interview has been edited and abridged for publication.
  • en Wizner, who is perhaps best known as Edward Snowden’s lawyer, directs the American Civil Liberties Union’s Speech, Privacy & Technology Project. Wizner, who joined the ACLU in August 2001, one month before the 9/11 attacks, has been a force in the legal battles against torture, watch lists, and extraordinary rendition since the beginning of the global “war on terror.” Ad Policy On October 15, we met with Wizner in an upstate New York pub to discuss the state of privacy advocacy today. In sometimes sardonic tones, he talked about the transition from litigating on issues of torture to privacy advocacy, differences between corporate and state-sponsored surveillance, recent developments in state legislatures and the federal government, and some of the obstacles impeding civil liberties litigation. The interview has been edited and abridged for publication.
  • Many of the technologies, both military technologies and surveillance technologies, that are developed for purposes of policing the empire find their way back home and get repurposed. You saw this in Ferguson, where we had military equipment in the streets to police nonviolent civil unrest, and we’re seeing this with surveillance technologies, where things that are deployed for use in war zones are now commonly in the arsenals of local police departments. For example, a cellphone surveillance tool that we call the StingRay—which mimics a cellphone tower and communicates with all the phones around—was really developed as a military technology to help identify targets. Now, because it’s so inexpensive, and because there is a surplus of these things that are being developed, it ends up getting pushed down into local communities without local democratic consent or control.
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  • SG & TP: How do you see the current state of the right to privacy? BW: I joked when I took this job that I was relieved that I was going to be working on the Fourth Amendment, because finally I’d have a chance to win. That was intended as gallows humor; the Fourth Amendment had been a dishrag for the last several decades, largely because of the war on drugs. The joke in civil liberties circles was, “What amendment?” But I was able to make this joke because I was coming to Fourth Amendment litigation from something even worse, which was trying to sue the CIA for torture, or targeted killings, or various things where the invariable outcome was some kind of non-justiciability ruling. We weren’t even reaching the merits at all. It turns out that my gallows humor joke was prescient.
  • The truth is that over the last few years, we’ve seen some of the most important Fourth Amendment decisions from the Supreme Court in perhaps half a century. Certainly, I think the Jones decision in 2012 [U.S. v. Jones], which held that GPS tracking was a Fourth Amendment search, was the most important Fourth Amendment decision since Katz in 1967 [Katz v. United States], in terms of starting a revolution in Fourth Amendment jurisprudence signifying that changes in technology were not just differences in degree, but they were differences in kind, and require the Court to grapple with it in a different way. Just two years later, you saw the Court holding that police can’t search your phone incident to an arrest without getting a warrant [Riley v. California]. Since 2012, at the level of Supreme Court jurisprudence, we’re seeing a recognition that technology has required a rethinking of the Fourth Amendment at the state and local level. We’re seeing a wave of privacy legislation that’s really passing beneath the radar for people who are not paying close attention. It’s not just happening in liberal states like California; it’s happening in red states like Montana, Utah, and Wyoming. And purple states like Colorado and Maine. You see as many libertarians and conservatives pushing these new rules as you see liberals. It really has cut across at least party lines, if not ideologies. My overall point here is that with respect to constraints on government surveillance—I should be more specific—law-enforcement government surveillance—momentum has been on our side in a way that has surprised even me.
  • Do you think that increased privacy protections will happen on the state level before they happen on the federal level? BW: I think so. For example, look at what occurred with the death penalty and the Supreme Court’s recent Eighth Amendment jurisprudence. The question under the Eighth Amendment is, “Is the practice cruel and unusual?” The Court has looked at what it calls “evolving standards of decency” [Trop v. Dulles, 1958]. It matters to the Court, when it’s deciding whether a juvenile can be executed or if a juvenile can get life without parole, what’s going on in the states. It was important to the litigants in those cases to be able to show that even if most states allowed the bad practice, the momentum was in the other direction. The states that were legislating on this most recently were liberalizing their rules, were making it harder to execute people under 18 or to lock them up without the possibility of parole. I think you’re going to see the same thing with Fourth Amendment and privacy jurisprudence, even though the Court doesn’t have a specific doctrine like “evolving standards of decency.” The Court uses this much-maligned test, “Do individuals have a reasonable expectation of privacy?” We’ll advance the argument, I think successfully, that part of what the Court should look at in considering whether an expectation of privacy is reasonable is showing what’s going on in the states. If we can show that a dozen or eighteen state legislatures have enacted a constitutional protection that doesn’t exist in federal constitutional law, I think that that will influence the Supreme Court.
  • The question is will it also influence Congress. I think there the answer is also “yes.” If you’re a member of the House or the Senate from Montana, and you see that your state legislature and your Republican governor have enacted privacy legislation, you’re not going to be worried about voting in that direction. I think this is one of those places where, unlike civil rights, where you saw most of the action at the federal level and then getting forced down to the states, we’re going to see more action at the state level getting funneled up to the federal government.
  • Paul Merrell on 16 Nov 15
     
    A must-read. Ben Wizner discusses the current climate in the courts in government surveillance cases and how Edward Snowden's disclosures have affected that, and much more. Wizner is not only Edward Snowden's lawyer, he is also the coordinator of all ACLU litigation on electronic surveillance matters.

The Empire Takes a Hit: NSA Update - 2 views

started by Gary Edwards on 15 Jun 13 no follow-up yet
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Feds May Have To Reveal FISA Phone Records In Murder Case | Techdirt - 0 views

www.techdirt.com/...hone-records-murder-case.shtml surveillance state NSA criminal discovery
shared by Paul Merrell on 14 Jun 13 - No Cached
  • There's been a lot of focus elsewhere concerning the FISA rulings that were leaked, showing that the government is scooping up the details of pretty much every phone call. However, a case concerning some guys who were trying to rob an armored truck may lead to some interesting revelations related to what the government collects. Daryl Davis, Hasam Williams, Terrance Brown, Toriano Johnson, and Joseph K. Simmons were charged with trying to rob a bunch of armored Brink's trucks, in which one of the robberies went wrong and a Brink's employee was shot and killed. As part of the case against the group, the DOJ obtained call records. However, during discovery, the government refused to hand over call records for July of 2010, claiming that when they sought them from the telco, the DOJ was told that those records had been purged. Terrance Brown's lawyer is now claiming that since it appears the NSA has sucked up all of this data for quite some time, it would appear that the government should, in fact, already have the phone records from July 2010, which he argues would show that he was nowhere near the robbery when it happened. Defendant Brown urges that the records are important to his defense because cell-site records could be used to show that Brown was not in the vicinity of the attempted robbery that allegedly occurred in July 2010. And, relying on a June 5, 2013, Guardian newspaper article that published a FISA Court order relating to cellular telephone data collected by Verizon,1 Defendant Brown now suggests that the Government likely actually does possess the metadata relating to telephone calls made in July 2010 from the two numbers attributed to Defendant Brown.
  • The court agrees that, under the law, the government may need to produce those records. Here, Defendant asserts that, under Brady v. Maryland, 373 U.S. 83 (1963), due process requires the production of the July 2010 telephone records because they are anticipated to be exculpatory in that they are expected to show that Defendant Brown was not physically located at the scene of the alleged attempted Brink’s truck robbery in July 2010. In view of Defendant Brown’s Motion and the requirements of FISA, it is hereby ORDERED and ADJUDGED that the Government shall respond to Defendant Brown’s Motion and, if desired, shall file an affidavit of the Attorney General of the United States. That order was actually issued Monday, only giving the government until yesterday to comply. At the time of posting, the government's reply has not yet shown up in PACER, though it may pop up soon. I'm guessing that they'll try to either get some sort of extension or explain why those records are somehow inaccessible -- but it could get interesting.
  • Paul Merrell on 14 Jun 13
     
    This is definitely one to watch. The Court's order is short but definitely enlightening. The defendant's trial is already under way, so the Court set a very short response time, and required the Feds to concurrently file the affidavit of the Attorney General if the Feds want to claim that disclosure would harm national security. She has also ordered that the Feds concurrently explain any belief that thre information was lawfully gathered, citing some specific portions of the FISA Act that are at the heart of the government's claim of right to compel telcos to disclose the information to the Feds.    Then the court decides whether the Feds must produce the records anyway. Tough position for the government because it would be extremely difficult to argue that the phone call metadata itself is classified, since they are by law "business records" of a private party, the telco.  And this sets the stage for a flood of habeas corpus petitions by persons already convicted seeking new trials with NSA surveillance records disclosed. Easiest way out for the Feds is to claim that the records do not exist, but someone will have to sign a statement under penalty of perjury file to that effect.  If the Court orders disclosure, the Feds have a right of immediate appeal. So this one could win up in the Supreme Court very quickly (days, not months). Reading the Court's order, the judge seems predisposed to order production of the records. So stay tuned to this channel. I'm reminded that about a week ago, an MSNBC reporter blogged that he didn't think that the PRISM story "has legs" that will keep it in the news very long. He was wrong. 
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Am. Express Co. v. Italian Colors Rest. :: Justia US Supreme Court Center - 0 views

supreme.justia.com/...12-133 banksters credit-cards usury arbitration case-law antitrust monopolies
shared by Paul Merrell on 22 Jun 13 - No Cached
  • Justia.com Opinion Summary: An agreement between American Express and merchants who accept American Express cards, requires that all of their disputes be resolved by arbitration and provides that there “shall be no right or authority for any Claims to be arbitrated on a class action basis.” The merchants filed a class action, claiming that American Express violated section 1 of the Sherman Act and seeking treble damages under section 4 of the Clayton Act. The district court dismissed. The Second Circuit reversed, holding that the class action waiver was unenforceable and that arbitration could not proceed because of prohibitive costs. The Circuit upheld its reversal on remand in light of a Supreme Court holding that a party may not be compelled to submit to class arbitration absent an agreement to do so. The Supreme Court reversed. The FAA reflects an overarching principle that arbitration is a matter of contract and does not permit courts to invalidate a contractual waiver of class arbitration on the ground that the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery. Courts must rigorously enforce arbitration agreements even for claims alleging violation of a federal statute, unless the FAA mandate has been overridden by a contrary congressional command. No contrary congressional command requires rejection of this waiver. Federal antitrust laws do not guarantee an affordable procedural path to the vindication of every claim or indicate an intention to preclude waiver of class-action procedures. The fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.
  • Paul Merrell on 22 Jun 13
     
    Remarkable 5-3 Supreme Court decision in favor of the banksters, in effect overruling a line of prior decisions nearly 30 years old. At issue, whether a credit card monopolists' form contract with merchants containing a mandatory arbitration clause could lawfully bar judicial review under the antitrust laws when the arbitration clause barred class arbitration and the amount merchants could hope to recover was less than a tenth of the expense of litigating claims individually. (Antitrust cases are unusually expensive to prosecute.) For nearly three decades, the Court had implied an exception to the Federal Arbitration Act that allowed plaintiffs to litigate claims subject to arbitration clauses in court to vindicate rights under federal law when arbitration would not provide an effective remedy for the violation of federal law. No more. Upholding the "right" of American Express to insist on a 30 percent share of the price of each sale transacted with an American Express card. Read Justice Kagan's dissent, joined by two other justices, to learn what's wrong with the majority's decision. Her nushell version: "here is the nutshell version of today's opinion, admirably flaunted rather than camoflaged: Too darn bad." The majority did, however, leave it open for Congress to amend the Arbitration Act to resolve the issue. But with corporate and bankster influence in Congress, good luck with that. This decision, unfortunately, has major implications for software developers, as well as other merchants. For example, the current crop of "app store" restrictions on competition enforced by technical measures on app developers by monopolists such as Apple and Microsoft, insisting on a 30 per cent cut of each sale. One can rest assured that such contracts contain similar arbitration clauses
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ACLU Demands Secret Court Hand Over Crucial Rulings On Surveillance Law - 0 views

www.mintpressnews.com/...221667 surveillance state FISA-Court opinions disclosure litigation ACLU
shared by Paul Merrell on 24 Oct 16 - No Cached
  • The American Civil Liberties Union (ACLU) has filed a motion to reveal the secret court opinions with “novel or significant interpretations” of surveillance law, in a renewed push for government transparency. The motion, filed Wednesday by the ACLU and Yale Law School’s Media Freedom and Information Access Clinic, asks the Foreign Intelligence Surveillance Act (FISA) Court, which rules on intelligence gathering activities in secret, to release 23 classified decisions it made between 9/11 and the passage of the USA Freedom Act in June 2015. As ACLU National Security Project staff attorney Patrick Toomey explains, the opinions are part of a “much larger collection of hidden rulings on all sorts of government surveillance activities that affect the privacy rights of Americans.” Among them is the court order that the government used to direct Yahoo to secretly scanits users’ emails for “a specific set of characters.” Toomey writes: These court rulings are essential for the public to understand how federal laws are being construed and implemented. They also show how constitutional protections for personal privacy and expressive activities are being enforced by the courts. In other words, access to these opinions is necessary for the public to properly oversee their government.
  • Although the USA Freedom Act requires the release of novel FISA court opinions on surveillance law, the government maintains that the rule does not apply retroactively—thereby protecting the panel from publishing many of its post-9/11 opinions, which helped create an “unprecedented buildup” of secret surveillance laws. Even after National Security Agency (NSA) whistleblower Edward Snowden revealed the scope of mass surveillance in 2013, sparking widespread outcry, dozens of rulings on spying operations remain hidden from the public eye, which stymies efforts to keep the government accountable, civil liberties advocates say. “These rulings are necessary to inform the public about the scope of the government’s surveillance powers today,” the ACLU’s motion states.
  • Toomey writes that the rulings helped influence a number of novel spying activities, including: The government’s use of malware, which it calls “Network Investigative Techniques” The government’s efforts to compel technology companies to weaken or circumvent their own encryption protocols The government’s efforts to compel technology companies to disclose their source code so that it can identify vulnerabilities The government’s use of “cybersignatures” to search through internet communications for evidence of computer intrusions The government’s use of stingray cell-phone tracking devices under the Foreign Intelligence Surveillance Act (FISA) The government’s warrantless surveillance of Americans under FISA Section 702—a controversial authority scheduled to expire in December 2017 The bulk collection of financial records by the CIA and FBI under Section 215 of the Patriot Act Without these rulings being made public, “it simply isn’t possible to understand the government’s claimed authority to conduct surveillance,” Toomey writes. As he told The Intercept on Wednesday, “The people of this country can’t hold the government accountable for its surveillance activities unless they know what our laws allow. These secret court opinions define the limits of the government’s spying powers. Their disclosure is essential for meaningful public oversight in our democracy.”
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NSA phone surveillance program likely unconstitutional, federal judge rules | World new... - 0 views

www.theguardian.com/...-likely-unconstitutional-judge surveillance state NSA call-metadata litigation 4th Amendment constitutional law NSA-blowback
shared by Paul Merrell on 17 Dec 13 - No Cached
  • A federal judge in Washington ruled on Monday that the bulk collection of Americans’ telephone records by the National Security Agency is likely to violate the US constitution, in the most significant legal setback for the agency since the publication of the first surveillance disclosures by the whistleblower Edward Snowden. Judge Richard Leon declared that the mass collection of metadata probably violates the fourth amendment, which prohibits unreasonable searches and seizures, and was "almost Orwellian" in its scope. In a judgment replete with literary swipes against the NSA, he said James Madison, the architect of the US constitution, would be "aghast" at the scope of the agency’s collection of Americans' communications data. The ruling, by the US district court for the District of Columbia, is a blow to the Obama administration, and sets up a legal battle that will drag on for months, almost certainly destined to end up in the supreme court. It was welcomed by campaigners pressing to rein in the NSA, and by Snowden, who issued a rare public statement saying it had vindicated his disclosures. It is also likely to influence other legal challenges to the NSA, currently working their way through federal courts.
  • In Monday’s ruling, the judge concluded that the pair's constitutional challenge was likely to be successful. In what was the only comfort to the NSA in a stinging judgment, Leon put the ruling on hold, pending an appeal by the government. Leon expressed doubt about the central rationale for the program cited by the NSA: that it is necessary for preventing terrorist attacks. “The government does not cite a single case in which analysis of the NSA’s bulk metadata collection actually stopped an imminent terrorist attack,” he wrote.
  • Leon’s opinion contained stern and repeated warnings that he was inclined to rule that the metadata collection performed by the NSA – and defended vigorously by the NSA director Keith Alexander on CBS on Sunday night – was unconstitutional. “Plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the government’s interest in collecting and analysing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the fourth amendment,” he wrote. Leon said that the mass collection of phone metadata, revealed by the Guardian in June, was "indiscriminatory" and "arbitrary" in its scope. "The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979," he wrote, referring to the year in which the US supreme court ruled on a fourth amendment case upon which the NSA now relies to justify the bulk records program.
  • ...5 more annotations...
  • In a statement, Snowden said the ruling justified his disclosures. “I acted on my belief that the NSA's mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts," he said in comments released through Glenn Greenwald, the former Guardian journalist who received leaked documents from Snowden. "Today, a secret program authorised by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”
  • In his ruling, Judge Leon expressly rejected the government’s claim that the 1979 supreme court case, Smith v Maryland, which the NSA and the Obama administration often cite to argue that there is no reasonable expectation of privacy over metadata, applies in the NSA’s bulk-metadata collection. The mass surveillance program differs so much from the one-time request dealt with by the 1979 case that it was of “little value” in assessing whether the metadata dragnet constitutes a fourth amendment search.
  • In a decision likely to influence other federal courts hearing similar arguments from the ACLU, Leon wrote that the Guardian’s disclosure of the NSA’s bulk telephone records collection means that citizens now have standing to challenge it in court, since they can demonstrate for the first time that the government is collecting their phone data.
  • Leon also struck a blow for judicial review of government surveillance practices even when Congress explicitly restricts the ability of citizens to sue for relief. “While Congress has great latitude to create statutory schemes like Fisa,” he wrote, referring to the seminal 1978 surveillance law, “it may not hang a cloak of secrecy over the constitution.”
  • In his ruling on Monday, Judge Leon predicted the process would take six months. He urged the government to take that time to prepare for an eventual defeat. “I fully expect that during the appellate process, which will consume at least the next six months, the government will take whatever steps necessary to prepare itself to comply with this order when, and if, it is upheld,” wrote Leon in his opinion. “Suffice it to say, requesting further time to comply with this order months from now will not be well received and could result in collateral sanctions.”
  • Paul Merrell on 17 Dec 13
     
    This is the case I thought was the weakest because of poor drafting in the complaint. The judge noted those issues in dismissing the plaintiffs' claims under the Administrative Procedures Act, but picked his way through what remained to find sufficient allegations to support the 4th Amendment challenge. Because he ruled for the plaintiffs on the 4th Amendment count, the judge did not reach the plaintiffs' arguments under the First and Fifth Amendments. This case is about cellphone call metadata, which the FISA Court has been ordering cell phone companies to provide every day, with the orders updated every 90 days. The judge's 68-page opinion is at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0881-40 (cleaner copy than the Guardian's, which was apparently faxed). Notably, the judge, Richard Leon, is a Bush II appointee and one of the plaintiffs is a prominent conservative civil libertarian lawyer. The other plaintiff is the father of an NSA cryptologist who worked closely with SEAL Team 6 and was killed along with members of that team when their helicopter crashed in Afghanistan. I'll add some more in a comment. But digital privacy is not yet dead.
  • Paul Merrell on 17 Dec 13
     
    Unfortunately, DRM is not dead yet either and the court's PDF file is locked. No easy copying of its content. If you want to jump directly to the discussion of 4th Amendment issues, go to page 35. That way, you can skip past all the dreary discussion of the Administrative Procedures Act claim and you won't miss much that's memorable. In ruling on the plaintiffs' standing to raise the 4th Amendment claim, Judge Leon postulated two possible search issues: [i] the bulk daily collection of metadata and its retention in the database for five years; and [ii] the analysis of that data through the NSA's querying process. The judge had no difficulty with the first issue; it definitely qualifies as a search. But the judge rejected the plaintiffs' argument on the second type (which was lame), demonstrating that at least one federal judge understands how computers work. The government's filings indicated that a "seed" telephone number or other identifier is used as the query string. Judge Leon figured out for himself from this fact that the NSA of necessity had to compare that number or identifier to every number or identifier in its database looking for a match. The judge concluded that the plaintiffs' metadata --- indeed everyone's metadata --- had to be searched for comparison purposes *every* time the NSA analysts ran any query against the database. See his incisive discussion at pp. 39-41. So having established that two searches were involved, one every time the NSA queried the database, the judge moved on to the next question, whether "the plaintiffs had a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets." pg. 43. More later
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