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Paul Merrell

Resurrecting the Dubious State Secrets Privilege | John Dean | Verdict | Legal Analysis... - 0 views

verdict.justia.com/...ubious-state-secrets-privilege

Dark-State state-secrets government secrecy Restis DoJ Holder

shared by Paul Merrell on 19 Sep 14 - No Cached
  • In an unusual move, the U.S. Department of Justice has filed a motion to make a private lawsuit simply disappear. While the U.S. Government is not a party to this defamation lawsuit—Victor Restis et al. v. American Coalition Against Nuclear Iran, Inc.—filed July 19, 2013, in the U.S. District Court for the Southern District of New York, Attorney General Eric Holder is concerned that the discovery being undertaken might jeopardize our national security.
  • The government’s argument for intervening in this lawsuit is technical and thin.
  • The strongest precedent in the government’s brief in the current case is the 1985 case of Fitzgerald v. Penthouse Intern., Ltd. Fitzgerald had sued Penthouse Magazine for an allegedly libelous article, but the U.S. Navy moved to intervene on the ground that the government had a national security interest which would not be adequately protected by the parties, so the government requested the action be dismissed, after invoking the state secrets privilege. The federal district court granted the motions and dismissed the case, which the U.S. Court of Appeals for Fourth Circuit affirmed. So there is precedent for this unusual action by the government in a private lawsuit, but the legitimacy of the state secrets privilege remains subject to question.
  • ...9 more annotations...
  • In February 2000, Judith Loether, a daughter of one of the three civilians killed in the 1948 B-29 explosion, discovered the government’s once-secret accident report for the incident on the Internet. Loether had been seven weeks old when her father died but been told by her mother what was known of her father’s death and the unsuccessful efforts to find out what had truly happened. When Loether read the accident report she was stunned. There were no national security secrets whatsoever, rather there was glaringly clear evidence of the government’s negligence resulting in her father’s death. Loether shared this information with the families of the other civilian engineers who had been killed in the incident and they joined together in a legal action to overturn Reynolds, raising the fact that the executive branch of the government had misled the Supreme Court, not to mention the parties to the earlier lawsuit.
  • Lou Fisher looked closely at the state secrets privilege in his book In The Name of National Security, as well as in follow-up articles when the Reynolds case was litigated after it was discovered, decades after the fact, that the government had literally defrauded the Supreme Court in Reynolds, e.g., “The State Secrets Privilege: Relying on Reynolds.” The Reynolds ruling emerged from litigation initiated by the widows of three civilian engineers who died in a midair explosion of a B-29 bomber on October 6, 1948. The government refused to provide the widows with the government’s accident report. On March 9, 1953, the Supreme Court created the state secrets privilege when agreeing the accident report did not have to be produced since the government claimed it contained national security secrets. In fact, none of the federal judges in the lower courts, nor the justices on the Supreme Court, were allowed to read the report.
  • Lowell states in his letter: “By relying solely upon ex parte submissions to justify its invocation of the state secrets privilege, especially in the unprecedented circumstance of private party litigation without an obvious government interest, the Government has improperly invoked the state secrets privilege, deprived Plaintiffs of the opportunity to test the Government’s claims through the adversarial process, and limited the Court’s opportunity to make an informed judgment. “ Lowell further claims that in “the typical state secrets case, the Government will simultaneously file both a sealed declaration and a detailed public declaration.” (Emphasis in Lowell’s letter.) To bolster this contention, he provided the court with an example, and offered to provide additional examples if so requested.
  • The Justice Department’s memorandum of law accompanying its motion to intervene states that once the state secrets privilege has been asserted “by the head of the department with control over the matter in question . . . the scope of judicial review is quite narrow.” Quoting from the U.S. Supreme Court ruling establishing this privilege in 1953, U.S. v. Reynolds, the brief adds: “the sole determination for the court is whether, ‘from all the circumstances of the case . . . there is a reasonable danger that compulsion of the evidence will expose military [or other] matters which, in the interest of national security, should not be divulged.’”In short, all the Justice Department need claim is the magic phrase—”state secrets”—after assuring the court that the head of department or agency involved has personally decided it is information that cannot be released. That ends the matter. This is what has made this privilege so controversial, not to mention dubious. Indeed, invocation by the executive branch effectively removes the question from judicial determination, and the information underlying the decision is not even provided to the court.
  • As Fisher and other scholars note, there is much more room under the Reynolds ruling for the court to take a hard look at the evidence when the government claims state secrets than has been common practice. Fisher reminds: “The state secrets privilege is qualified, not absolute. Otherwise there is no adversary process in court, no exercise of judicial independence over what evidence is needed, and no fairness accorded to private litigants who challenge the government . . . . There is no justification in law or history for a court to acquiesce to the accuracy of affidavits, statements, and declarations submitted by the executive branch.” Indeed, he noted to do so is contrary to our constitutional system of checks and balances.
  • Time to Reexamine Blind Adherence to the State Secrets PrivilegeIn responding to the government’s move to intervene, invoke state secrets, and dismiss the Restis lawsuit, plaintiffs’ attorney Abbe Lowell sent a letter to Judge Edgardo Ramos, the presiding judge on the case on September 17, 2014, contesting the Department of Justice’s ex parte filings, and requesting that Judge Ramos “order the Government to file a public declaration in support of its filing that will enable Plaintiffs to meaningfully respond.” Lowell also suggested as an alternative that he “presently holds more than sufficient security clearances to be given access to the ex parte submission,” and the court could do here as in other national security cases, and issue a protective order that the information not be shared with anyone. While Lowell does not so state, he is in effect taking on the existing state secrets privilege procedure where only the government knows what is being withheld and why, and he is taking on Reynolds.
  • To make a long story short, the Supreme Court was more interested in the finality of their decisions than the fraud that had been perpetrated upon them. They rejected the direct appeal, and efforts to relegate the case through the lower courts failed. As Fisher notes, the Court ruled in Reynolds based on “vapors and allusions,” rather than facts and evidence, and today it is clear that when it uncritically accepted the government’s word, the Court abdicated its duty to protect the ability of each party to present its case fairly, not to mention it left the matter under the control of a “self-interested executive” branch.
  • Lowell explains it is not clear—and suggests the government is similarly unclear in having earlier suggested a “law enforcement privilege”—as to why the state secrets privilege is being invoked, and argues this case can be tried without exposing government secrets. Citing the Fitzgerald ruling, Lowell points out dismissal is appropriate “[o]nly when no amount of effort and care on the part of the court and the parties will safeguard privileged material is dismissal warranted.”
  • No telling how Judge Ramos will rule, and the government has a remarkable record of prevailing with the deeply flawed state secrets privilege. But Lowell’s letter appears to say, between the lines, that he has a client who is prepared to test this dubious privilege and the government’s use of it in this case if Judge Ramos dismisses this lawsuit. The U.S. Court of Appeals for the Second Circuit, where that ruling would be reviewed, sees itself every bit the intellectual equal of the U.S. Supreme Court and it is uniquely qualified to give this dubious privilege and the Reynolds holding a reexamination. It is long past time this be done.
  • Paul Merrell on 19 Sep 14
     
    Interesting take on the Restis case by former Nixon White House Counsel John Dean. Where the State Secrets Privilege is at its very nastiest, in my opinion, is in criminal prosecutions where the government withholds potentially exculpatory evidence on grounds of state secrecy. I think the courts have been far too lenient in allowing people to be tried without production of such evidence. The work-around in the Guantanamo Bay inmate cases has been to appoint counsel who have security clearances, but in those cases the lawyer is forbidden from discussing the classified information with the client, who could have valuable input if advised what the evidence is. It's also incredibly unfair in the extraordinary rendition cases, where the courts have let the government get away with having the cases dismissed on state secrecy grounds, even though the tortures have been the victim of criminal official misconduct.  It forces the victims to appeal clear to the Supreme Court before they can start over in an international court with jurisdiction over human rights violations, where the government loses because of its refusal to produce the evidence.  (Under the relevant treaties that the U.S. is a party to, the U.S. is required to provide a judicial remedy without resort to claims of national security secrecy.) Then the U.S. refuses to pay the judgments of the International courts, placing the U.S. in double breach of its treaty obligations. We see the same kinds of outrageous secrecy playing out in the Senate Intellience Committee's report on CIA torture, where the Obama Administration is using state secrecy claims to delay release of the report summary and minimize what is in it. It's highly unlikely that I will live long enough to read the full report. And that just is not democracy in action. Down with the Dark State!   
Gary Edwards

Byron York: Justice Department demolishes case against Trump order | Washington Examiner - 1 views

www.washingtonexaminer.com/...2613988

Byron-York Trump-Immigration-Order

shared by Gary Edwards on 06 Feb 17 - No Cached
  • Gary Edwards on 06 Feb 17
     
    "James Robart, the U.S. district judge in Washington State, offered little explanation for his decision to stop President Trump's executive order temporarily suspending non-American entry from seven terror-plagued countries. Robart simply declared his belief that Washington State, which in its lawsuit against Trump argued that the order is both illegal and unconstitutional, would likely win the case when it is tried. Now the government has answered Robart, and unlike the judge, Justice Department lawyers have produced a point-by-point demolition of Washington State's claims. Indeed, for all except the most partisan, it is likely impossible to read the Washington State lawsuit, plus Robart's brief comments and writing on the matter, plus the Justice Department's response, and not come away with the conclusion that the Trump order is on sound legal and constitutional ground. Beginning with the big picture, the Justice Department argued that Robart's restraining order violates the separation of powers, encroaches on the president's constitutional and legal authority in the areas of foreign affairs, national security, and immigration, and "second-guesses the president's national security judgment" about risks faced by the United States. Indeed, in court last week, Robart suggested that he, Robart, knows as much, or perhaps more, than the president about the current state of the terrorist threat in Yemen, Somalia, Libya, and other violence-plagued countries. In an exchange with Justice Department lawyer Michelle Bennett, Robart asked, "How many arrests have there been of foreign nationals for those seven countries since 9/11?" "Your Honor, I don't have that information," said Bennett. "Let me tell you," said Robart. "The answer to that is none, as best I can tell. So, I mean, you're here arguing on behalf of someone [President Trump] that says: We have to protect the United States from these individuals coming from these countries, and there's no support for that."
Gary Edwards

Seven Things You Should Know about the IRS Rule Challenged in King v. Burwell | Cato In... - 0 views

www.cato.org/...rule-challenged-king-v-burwell

ObamaCare King-v-Burwell

shared by Gary Edwards on 05 Mar 15 - No Cached
  • Gary Edwards on 05 Mar 15
     
    "By Michael F. Cannon and Jonathan H. Adler This article appeared on National Review (Online) on March 4, 2015. This week, the Supreme Court considers King v. Burwell. At issue is whether the IRS exceeded its authority under the Patient Protection and Affordable Care Act by issuing a final IRS rule that expanded the application of the Act's subsidies and mandates beyond the limits imposed by the statute. King v. Burwell is not a constitutional challenge. It challenges an IRS rule as being inconsistent with the Act it purports to implement. The case is a straightforward question of statutory interpretation. Here are seven things everyone needs to know about how the IRS developed the rule at issue in King v. Burwell. But first, a little background. If you're familiar with the case, you can skip to number one. Background Section 1311 of the Act directs states to establish health-insurance "Exchanges." Section 1321 directs the Secretary of Health and Human Services to establish Exchanges in states that "fail[]" to establish Exchanges. Confounding expectations, 38 states failed to establish Exchanges, in almost every case due to opposition to the Act. Section 1401 (creating I.R.C. § 36B) authorizes health-insurance subsidies (nominally, tax credits) "through an Exchange established by the State." The availability of those subsidies triggers tax penalties under the law's individual and employer mandates. In January 2014, the IRS began issuing those subsidies and imposing the resulting penalties through not only state-established Exchanges but also Exchanges established by the federal government as well (i.e., HealthCare.gov). In King v. Burwell, the plaintiffs allege that the IRS exceeded its powers under the Act by issuing a so-called final rule that purports to authorize subsidies in states with Exchanges established by the federal government. The plaintiffs claim that the rule and the subsidies being issued in such states are unlawful, because
Gary Edwards

Congressional Power - 1 views

www.infoplease.com/...congressionalpowers.html

Banksters USA-Constitution Congressional-Power Supreme-Court-Rulings

shared by Gary Edwards on 11 Aug 11 - No Cached
  • Gary Edwards on 11 Aug 11
     
    Legal Brief on Congressional Power, Court Rulings, & the Constitution: The expressed powers of Congress are listed in the Constitution. Congress also has implied powers, which are based on the Constitution's right to make any laws that are "necessary and proper" to carry out those expressed powers. Congress has exercised its implied powers thousands of times over the years. Here are but a few major illustrations of that fact. 1780 1789 The Constitution gives expressed powers to Congress in Article 1, Section 8. 1800 1810 1819 In McCulloch v. Maryland, the Supreme Court holds that the powers to tax, borrow, and regulate commerce give Congress the implied power to establish a national bank. 1820 1824 Gibbons v. Ogden is the first commerce clause case to reach the Supreme Court. The broad definition of commerce the Court lays out in its ruling extends federal authority. 1830 1840 1850 1860 1862 The U.S. government issues its first legal tender notes, which are popularly called greenbacks. 1870 1870 In Hepburn v. Griswold the Supreme Court rules that the Constitution does not authorize the printing of paper money. 1870 The Court reverses its position on the printing of paper money and holds that issuing paper money is a proper use of the currency power in the Legal Tender cases. The decision in Juliard v. Greenman (1884) reaffirms this holding. 1880 1890 1890 The Sherman Antitrust Act, based on the commerce power, regulates monopolies and other practices that limit competition. 1900 1910 1920 1930 1935 The Wagner Act, based on the commerce power, recognizes labor's right to bargain collectively. 1935 The Social Security Act is passed. 1937 The Supreme Court upholds the Social Security Act of 1935 as a proper exercise of the powers to tax and provide for the general welfare in Steward Machine Co. v. Davis and Helvering v. Davis. 1940 1950 1956 The Interstate and National Highway Act, based on the commerce and war powers, provides for a national interstate highway system.
Paul Merrell

Belhaj v. Straw: UK Supreme Court Hearing Case on UK Complicity in US Rendition and Tor... - 0 views

www.justsecurity.org/...k-complicity-rendition-torture

war & peace CIA rendition torture UK Supreme-Court legal-remedies

shared by Paul Merrell on 16 Nov 15 - No Cached
  • The United Kingdom Supreme Court heard arguments this week in two critical cases concerning the UK’s role in the United States’ rendition, detention, and interrogation efforts in the years after 9/11. In both cases, the UK government is arguing that the claims cannot be considered by English courts. If the government succeeds, one potential practical implication would be to limit the extent to which individuals could seek redress for wrongs done against them, including torture, where the alleged wrongs involve other States. The first case, Belhaj & another v. Straw & others, involves one of the most controversial claims of rendition involving the UK. The government has appealed against the lower court’s ruling, which found against the government for its alleged role in the 2004 abduction of Libyan national, Abdul-Hakim Belhaj, and his wife, and their subsequent rendition to Libya and mistreatment at the hands of US and other foreign officials. In December 2013, the High Court dismissed a civil suit brought by Belhaj on the basis that it lacked jurisdiction because of the act of state doctrine (a rule of English law which prevents courts from considering claims where the court would have to examine the acts of a foreign state). But in October 2014, the UK Court of Appeal ruled that the act of state doctrine did not preclude Belhaj’s claim against the British government, citing, among other reasons, the universal condemnation of torture and the “stark reality” that these allegations would escape judicial investigation unless the English courts were able to exercise jurisdiction over the case.
  • Specifically, the Court found that: [T]he present case falls within the established limitation on the act of state doctrine imposed by considerations of public policy on grounds of violations of human rights and international law and that there are compelling reasons requiring the exercise of jurisdiction. The Court of Appeal also rejected the government’s controversial attempt to invoke the domestic law on immunity of foreign states from domestic proceedings as a bar to any claim against the UK government whenever the conduct of foreign states may be called into question, a concept known as the doctrine of indirect impleader in state immunity.
  • The government’s appeal against the Court of Appeal’s decision in Belhaj is being heard jointly with the appeal in another case, Ministry of Defense and the Foreign and Commonwealth Office v. Yunus Rahmatullah, involving a Pakistani citizen captured by British forces in Iraq. In 2004, Rahmatullah was transferred from UK to US custody in Iraq and thereafter rendered to Bagram air base in Afghanistan, with UK knowledge and in breach of Article 45 and Article 49 of the Fourth Geneva Convention. Held by the US without trial for more than a decade, Rahmatullah was denied access to a lawyer and subjected to numerous acts of torture and mistreatment before being repatriated to Pakistan and released without charge in May 2014. He now seeks to sue the British government for damages. The main thrust of the UK government’s argument, in both cases, is that the litigation will most likely damage the UK’s relationship with the United States. If accepted by the Supreme Court, this argument may lead the Court to find that it lacks jurisdiction to hear the claims. The far-reaching implications of such a ruling would be to protect individual states and their institutions from the scrutiny of British courts in cases where it is alleged that they acted in concert with other states, even if their actions were unlawful. Such an expansive interpretation of a “but they did it too” excuse would constitute a notable limitation on British courts’ jurisdiction in the context of events arising from the so-called global war on terror. Since Belhaj and Rahmatullah, and others like them, are unlikely to secure redress directly in a US court, a ruling in favor of the government would essentially preclude them from securing redress in any forum. You can find the full Court of Appeal judgment here and below.   Belhaj v. Straw – Court of Appeal Judgment (30 Oct 2014) by Just Security
  • Paul Merrell on 16 Nov 15
     
    Hopefully, the "we can't be held liable because it would upset the U.S." defense won't be sustained by the Supreme Court. What a brazen assertion of UK subservience to the U.S.!
Gary Edwards

Arnold Ahlert: The Real American Divide - The Patriot Post - 0 views

patriotpost.us/44059

Angelo-Codevilla Ruling-Class Country-Class Patriotism

shared by Gary Edwards on 04 Aug 16 - No Cached
  • Nancy Pelosi and Hillary Clinton provided great examples of the Ruling Class' arrogant mindset. Pelosi believes, as she stated last week, that white, non-college-educated men who vote Republican have “voted against their own economic interests because of guns, because of gays, and because of God — the three G’s, God being the woman’s right to choose.” Clinton was worse. Regarding abortion on demand, she insisted last year that “deep-seated cultural codes, religious beliefs and structural biases have to be changed.” In other words, one embraces the progressive elitist viewpoint, or one is a religiously inspired bigot with a passé worldview that must be demolished. Thus it is no surprise these elitists conflate anything that dissents from their globalist agenda as a “world of wall-builders,” who have “already done great damage,” states The Economist. That damage includes the Brexit, the rise of nationalist (read: right-wing) parties, and “more electoral victories for closed-world types who pose the greatest threat since Communism.” In other words, elitists disdain national sovereignty and democratically determined destiny, logical responses to skyrocketing levels of elitist-enabled terrorism and uncontrolled immigration, and deeply felt concerns by non-elitists about a global economy that has devastated millions left behind in its wake.
  • The Ruling Class “solutions” for Country Class problems? “Let goods and investment flow freely, but strengthen the social safety-net to offer support and new opportunities for those whose jobs are destroyed,” The Economist states. “To manage immigration flows better, invest in public infrastructure, ensure that immigrants work and allow for rules that limit surges of people.” Codevilla explains what this really means, noting that “our Ruling Class' first priority in any and all matters, its solution to any and all problems, is to increase the power of the government — meaning those who run it, meaning themselves.” To achieve that end, new laws are longer than ever, “because length is needed to specify how people will be treated unequally.” Thus, these laws become “primarily grants of discretion,” because “all anybody has to know about them is whom they empower.” Codevilla adds, “This defines ‘crony capitalism.’”
  • If that sounds familiar, maybe it’s because WikiLeak emails reveal the DNC granted itself the sole discretion to empower Hillary Clinton’s presidential nomination, right from the beginning. Thus, when Hillary spoke of “bringing people together” during her speech at the convention, it was really about doing so on her and her fellow insiders' terms. And when she promised to get money out of politics, it can be assumed the billions of dollars that have flowed into the Clinton Foundation — dollars that conspicuously align themselves with a number of dubious initiatives — will remain exempt, even as another sham investigation of Clinton behavior conducted by an equally corrupted IRS lends an imprimatur of genuine concern to the spectacle. “If Americans, or at least a majority of them, have not completely lost their own self-regard as a free people, then the November election should turn out to be a referendum on the ‘ruling class,’ and a massive repudiation of Hillary Clinton’s sense of entitlement to be the first woman elected President of the United States,” writes American Thinker’s Salim Mansur. Perhaps. But traditional thinking dies hard. And a corrupt mainstream media — epitomized by CNN anchor Wolf Blitzer and Chief Political Analyst Gloria Borger drinking wine and celebrating with Democrat delegates at the convention’s conclusion — isn’t about to jeopardize their own Ruling Class status to provide the Country Class with any potentially unifying political insight. Which brings us to Donald Trump. In exclusive communication with The Patriot Post, Codevilla maintained there were no circumstances under which he could support Hillary or any other Democrat, but his view of Trump “is more unfavorable than ever.” He does, however, grant that Trump “is the lesser of two evils.” He sees both candidates as “identical in their disregard for the U.S. Constitution and in the establishment of a post-republican regime — an empire of the will, by of and for favored sectors of the ruling class.”
  • ...3 more annotations...
  • No doubt Codevilla’s take resonates with millions of Americans appalled by a broken, Ruling Class-dominated political system that produced both candidates. Yet realistically, we are faced with a binary choice, made by either commission or omission. And while Codevilla believes “there is no vehicle for opposition” as yet to a Ruling Class “represented by the establishment of both parties,” our own Mark Alexander warns that “the outcome of the November election will not only determine our president for at least the next four years, but also the composition of the Supreme Court for at least the next quarter-century.” That quarter century could be one in which a constitutionally contemptuous Supreme Court majority appointed by Hillary Clinton makes representative government obsolete, and eliminates any chance, short of armed revolution, for the Country Class to take America back from the Ruling Class. A nation where, as Ayn Rand put it, “The government is free to do anything it pleases, while the citizens may act only by permission.” A Trump presidency may be nothing more than a distasteful, bite-the-bullet
  • impediment to Ruling Class hegemony. But it is better than no impediment at all.
  • “While most Americans pray to the God who created us in His own image, our Ruling Class prays to themselves as saviors of the planet and as shapers of mankind in their own image.” —from The Ruling Class: How They Corrupted America and What We Can Do About It by Angelo Codevilla, 2010. While many still frame the 2016 election in terms of Democrats vs. Republicans, those divisions are losing their meaning. This election could be the first one in which Americans will either choose to continue abiding a globalist Ruling Class and their government-dominant, one-world agenda, or decide that national sovereignty, the Constitution and American exceptionalism and individualism are worth preserving. To be clear, nationalism does not equal protectionism, nativism or Islamophobia, nor is it solely embraced by know-nothing rubes unworthy of serious consideration — despite the ongoing efforts of the Ruling Class to paint it that way. Codevilla calls people who oppose the Ruling Class the Country Class, and he describes it as a diverse, often inharmonious group that “shares above all the desire to be rid of rulers it regards as inept and haughty.”
  • Gary Edwards on 04 Aug 16
     
    ""While most Americans pray to the God who created us in His own image, our Ruling Class prays to themselves as saviors of the planet and as shapers of mankind in their own image." -from The Ruling Class: How They Corrupted America and What We Can Do About It by Angelo Codevilla, 2010. While many still frame the 2016 election in terms of Democrats vs. Republicans, those divisions are losing their meaning. This election could be the first one in which Americans will either choose to continue abiding a globalist Ruling Class and their government-dominant, one-world agenda, or decide that national sovereignty, the Constitution and American exceptionalism and individualism are worth preserving. To be clear, nationalism does not equal protectionism, nativism or Islamophobia, nor is it solely embraced by know-nothing rubes unworthy of serious consideration - despite the ongoing efforts of the Ruling Class to paint it that way. Codevilla calls people who oppose the Ruling Class the Country Class, and he describes it as a diverse, often inharmonious group that "shares above all the desire to be rid of rulers it regards as inept and haughty." Ruling Class haughtiness, argues Codevilla, derives from "an educational system that exposed them to the same ideas and gave them remarkably uniform guidance," and engenders "a social canon of judgments about good and evil, complete with secular sacred history, sins … and saints," all conveyed in an "in" language that serves as their "badge of identity." Irrespective of their professions, the Ruling Class is also united by the reality that "their road up included government channels and government money. … Hence, whether formally in government, out of it, or halfway in, America's Ruling Class speaks the language and has the tastes, habits, and tools of bureaucrats." Just as critically, this "fraternity" can only be joined by one who Codevilla says "shares the manners, the tastes, and the i
Gary Edwards

David Skeel: A Nation Adrift From the Rule of Law - WSJ.com - 1 views

online.wsj.com/...4184704577588822128122752.html

wsj rule-of-law David-Skeel

shared by Gary Edwards on 23 Aug 12 - No Cached
  • Gary Edwards on 23 Aug 12
     
    "No one doubts that the coming election will be the most important referendum on the size and nature of government in a generation. But another issue is nearly as important and has gotten far less attention: our crumbling commitment to the rule of law. The notion that we are governed by rules that are transparent and enacted through the legislative process-not by the whims of our leaders-is at the heart of that commitment. If legislators exceed their authority under the Constitution, or if otherwise legitimate laws are misused, courts must step in to prevent or remedy the potential harm. During the 2008 financial crisis, the government repeatedly violated these principles. When regulators bailed out Bear Stearns by engineering its sale to J.P. Morgan Chase, they flagrantly disregarded basic corporate law by "locking up" the transaction so that no other bidder could intervene. When the government bailed out AIG six months later, the Federal Reserve funded the bailout by invoking extraordinary loan powers for what was clearly an acquisition rather than a loan. (The government acquired nearly 80% of AIG's stock.) Two months later, the Treasury Department used money from the $700-billion Troubled Asset Relief Program fund to bail out the car companies. This was dubious. Under the statute, the funds were to be used for financial institutions. But the real violation came a few months later, when the government used a sham bankruptcy sale to transfer Chrysler to Fiat while almost certainly stiffing Chrysler's senior creditors. According to two leading legal scholars, Eric Posner and Adrian Vermeule, rule-of-law violations are inevitable during a crisis. The executive branch takes all necessary steps, even if that means violating the law, until the crisis has passed. The argument is powerful, and its advocates are correct that presidents and other executive-branch officials often push the envelope during a crisis. Yet pushing the envelope isn't the same thing as f
Paul Merrell

First Unitarian Church of Los Angeles v. NSA | Electronic Frontier Foundation - 0 views

www.eff.org/...arian-church-los-angeles-v-nsa

surveillance state NSA NSA-blowback litigation 1st Amendment EFF

shared by Paul Merrell on 13 Jan 14 - No Cached
  • Twenty-two organizations including Unitarian church groups, gun ownership advocates, and a broad coalition of membership and political advocacy organizations filed suit against the National Security Agency for violating their First Amendment right of association by illegally collecting their call records. The coalition is represented by EFF. At the heart of First Unitarian Church of Los Angeles v. NSA is the bulk telephone records collection program that was confirmed by the publication of an order from the Foreign Intelligence Surveillance Court (FISC) in June of 2013. The Director of National Intelligence (DNI) further confirmed that this formerly secret document was authentic, and part of a broader program to collect all major telecommunications customers’ call history. The order demands wholesale collection of every call made, the location of the phone, the time of the call, the duration of the call, and other “identifying information” for every phone and call for all customers of Verizon for a period of three months. Government officials further confirmed that this was just one of series of orders issued on a rolling basis since at least 2006. First Unitarian v. NSA argues that this spying violates the First Amendment, which protects the freedom to associate and express political views as a group.
  • Twenty-two organizations including Unitarian church groups, gun ownership advocates, and a broad coalition of membership and political advocacy organizations filed suit against the National Security Agency for violating their First Amendment right of association by illegally collecting their call records. The coalition is represented by EFF. At the heart of First Unitarian Church of Los Angeles v. NSA is the bulk telephone records collection program that was confirmed by the publication of an order from the Foreign Intelligence Surveillance Court (FISC) in June of 2013. The Director of National Intelligence (DNI) further confirmed that this formerly secret document was authentic, and part of a broader program to collect all major telecommunications customers’ call history. The order demands wholesale collection of every call made, the location of the phone, the time of the call, the duration of the call, and other “identifying information” for every phone and call for all customers of Verizon for a period of three months. Government officials further confirmed that this was just one of series of orders issued on a rolling basis since at least 2006. First Unitarian v. NSA argues that this spying violates the First Amendment, which protects the freedom to associate and express political views as a group.
  • The case challenges the mass telephone records collection that was confirmed by the FISA Order that was published on June 5, 2013 and confirmed by the Director of National Intelligence (DNI) on June 6, 2013. The DNI confirmed that the collection was “broad in scope” and conducted under the “business records” provision of the Foreign Intelligence Surveillance Act, also known as section 215 of the Patriot Act and 50 U.S.C. section 1861. The facts have long been part of EFF’s Jewel v. NSA case. The case does not include section 702 programs, which includes the recently made public and called the PRISM program or the fiber optic splitter program that is included (along with the telephone records program) in the Jewel v. NSA case. 
  • ...5 more annotations...
  • Our goal is to highlight one of the most important ways that the government collection of telephone records is unconstitutional: it violates the First Amendment right of association. When the government gets access to the phone records of political and activist organizations and their members, it knows who is talking to whom, when, and for how long. This so-called “metadata,” especially when collected in bulk and aggregated, tracks the associations of these organizations. After all, if the government knows that you call the Unitarian Church or Calguns or People for the American Way or Students for Sensible Drug Policy regularly, it has a very good indication that you are a member and it certainly knows that you associate regularly. The law has long recognized that government access to associations can create a chilling effect—people are less likely to associate with organizations when they know the government is watching and when the government can track their associations. 
  • Twenty-two organizations including Unitarian church groups, gun ownership advocates, and a broad coalition of membership and political advocacy organizations filed suit against the National Security Agency for violating their First Amendment right of association by illegally collecting their call records. The coalition is represented by EFF. At the heart of First Unitarian Church of Los Angeles v. NSA is the bulk telephone records collection program that was confirmed by the publication of an order from the Foreign Intelligence Surveillance Court (FISC) in June of 2013. The Director of National Intelligence (DNI) further confirmed that this formerly secret document was authentic, and part of a broader program to collect all major telecommunications customers’ call history. The order demands wholesale collection of every call made, the location of the phone, the time of the call, the duration of the call, and other “identifying information” for every phone and call for all customers of Verizon for a period of three months. Government officials further confirmed that this was just one of series of orders issued on a rolling basis since at least 2006. First Unitarian v. NSA argues that this spying violates the First Amendment, which protects the freedom to associate and express political views as a group.
  • The First Amendment right of association is a well established doctrine that prevents the government “interfering with the right to peaceably assemble or prohibit the petition for a governmental redress of grievances.” The most famous case embracing it is a 1958 Supreme Court Case from the Civil Rights era called  NAACP v. Alabama. In that case the Supreme Court held that it would violate the First Amendment for the NAACP to have to turn over its membership lists in litigation. The right stems from the simple fact that the First Amendment protects the freedom to associate and express political views as a group. This constitutional protection is critical because, as the court noted “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association[.]” NAACP v. Alabama, 357 U.S. at 460. As another court noted: the Constitution protects freedom of association to encourage the “advancing ideas and airing grievances” Bates v. City of Little Rock, 361 U.S. 516, 522-23 (1960).
  • The collection and analysis of telephone records give the government a broad window into our associations. The First Amendment protects against this because, as the Supreme Court has recognized, “it may induce members to withdraw from the association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of their exposure.” NAACP v. Alabama, 357 U.S. at 462-63. See also Bates, 361 U.S. at 523; Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539 (1963).  Privacy in one’s associational ties is also closely linked to freedom of association: “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” NAACP v. Alabama, 357 U.S. at 462. 
  • The Supreme Court has made clear that infringements on freedom of association may survive constitutional scrutiny only when they “serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984); see also NAACP v. Button, 371 U.S. at 341; Knox v. SEIU, Local 1000, 132 S. Ct. 2277, 2291 (2012)  Here, the wholesale collection of telephone records of millions of innocent Americans’ communications records, and thereby collection of their associations, is massively overbroad, regardless of the government’s interest. Thus, the NSA spying program fails under the basic First Amendment tests that have been in place for over fifty years.
  • Paul Merrell on 13 Jan 14
     
    This case is related to EFF's earlier pending case, Jewel v. NSA and has been assigned to Judge Whyte, the same judge who ruled earlier in Jewel that the State Secrets Privilege does not apply to NSA's call metadata "haystack." The plaintiffs are 22 different groups who would make strange bedfellows indeed, except in opposition to government surveillance and repression. 
Paul Merrell

European Human Rights Court Deals a Heavy Blow to the Lawfulness of Bulk Surveillance |... - 0 views

www.justsecurity.org/...w-lawfulness-bulk-surveillance

surveillance state bulk-collection ECHR litigation

shared by Paul Merrell on 11 Dec 15 - No Cached
  • In a seminal decision updating and consolidating its previous jurisprudence on surveillance, the Grand Chamber of the European Court of Human Rights took a sideways swing at mass surveillance programs last week, reiterating the centrality of “reasonable suspicion” to the authorization process and the need to ensure interception warrants are targeted to an individual or premises. The decision in Zakharov v. Russia — coming on the heels of the European Court of Justice’s strongly-worded condemnation in Schrems of interception systems that provide States with “generalised access” to the content of communications — is another blow to governments across Europe and the United States that continue to argue for the legitimacy and lawfulness of bulk collection programs. It also provoked the ire of the Russian government, prompting an immediate legislative move to give the Russian constitution precedence over Strasbourg judgments. The Grand Chamber’s judgment in Zakharov is especially notable because its subject matter — the Russian SORM system of interception, which includes the installation of equipment on telecommunications networks that subsequently enables the State direct access to the communications transiting through those networks — is similar in many ways to the interception systems currently enjoying public and judicial scrutiny in the United States, France, and the United Kingdom. Zakharov also provides a timely opportunity to compare the differences between UK and Russian law: Namely, Russian law requires prior independent authorization of interception measures, whereas neither the proposed UK law nor the existing legislative framework do.
  • The decision is lengthy and comprises a useful restatement and harmonization of the Court’s approach to standing (which it calls “victim status”) in surveillance cases, which is markedly different from that taken by the US Supreme Court. (Indeed, Judge Dedov’s separate but concurring opinion notes the contrast with Clapper v. Amnesty International.) It also addresses at length issues of supervision and oversight, as well as the role played by notification in ensuring the effectiveness of remedies. (Marko Milanovic discusses many of these issues here.) For the purpose of the ongoing debate around the legitimacy of bulk surveillance regimes under international human rights law, however, three particular conclusions of the Court are critical.
  • The Court took issue with legislation permitting the interception of communications for broad national, military, or economic security purposes (as well as for “ecological security” in the Russian case), absent any indication of the particular circumstances under which an individual’s communications may be intercepted. It said that such broadly worded statutes confer an “almost unlimited degree of discretion in determining which events or acts constitute such a threat and whether that threat is serious enough to justify secret surveillance” (para. 248). Such discretion cannot be unbounded. It can be limited through the requirement for prior judicial authorization of interception measures (para. 249). Non-judicial authorities may also be competent to authorize interception, provided they are sufficiently independent from the executive (para. 258). What is important, the Court said, is that the entity authorizing interception must be “capable of verifying the existence of a reasonable suspicion against the person concerned, in particular, whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures, such as, for example, acts endangering national security” (para. 260). This finding clearly constitutes a significant threshold which a number of existing and pending European surveillance laws would not meet. For example, the existence of individualized reasonable suspicion runs contrary to the premise of signals intelligence programs where communications are intercepted in bulk; by definition, those programs collect information without any consideration of individualized suspicion. Yet the Court was clearly articulating the principle with national security-driven surveillance in mind, and with the knowledge that interception of communications in Russia is conducted by Russian intelligence on behalf of law enforcement agencies.
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  • This element of the Grand Chamber’s decision distinguishes it from prior jurisprudence of the Court, namely the decisions of the Third Section in Weber and Saravia v. Germany (2006) and of the Fourth Section in Liberty and Ors v. United Kingdom (2008). In both cases, the Court considered legislative frameworks which enable bulk interception of communications. (In the German case, the Court used the term “strategic monitoring,” while it referred to “more general programmes of surveillance” in Liberty.) In the latter case, the Fourth Section sought to depart from earlier European Commission of Human Rights — the court of first instance until 1998 — decisions which developed the requirements of the law in the context of surveillance measures targeted at specific individuals or addresses. It took note of the Weber decision which “was itself concerned with generalized ‘strategic monitoring’, rather than the monitoring of individuals” and concluded that there was no “ground to apply different principles concerning the accessibility and clarity of the rules governing the interception of individual communications, on the one hand, and more general programmes of surveillance, on the other” (para. 63). The Court in Liberty made no mention of any need for any prior or reasonable suspicion at all.
  • In Weber, reasonable suspicion was addressed only at the post-interception stage; that is, under the German system, bulk intercepted data could be transmitted from the German Federal Intelligence Service (BND) to law enforcement authorities without any prior suspicion. The Court found that the transmission of personal data without any specific prior suspicion, “in order to allow the institution of criminal proceedings against those being monitored” constituted a fairly serious interference with individuals’ privacy rights that could only be remedied by safeguards and protections limiting the extent to which such data could be used (para. 125). (In the context of that case, the Court found that Germany’s protections and restrictions were sufficient.) When you compare the language from these three cases, it would appear that the Grand Chamber in Zakharov is reasserting the requirement for individualized reasonable suspicion, including in national security cases, with full knowledge of the nature of surveillance considered by the Court in its two recent bulk interception cases.
  • The requirement of reasonable suspicion is bolstered by the Grand Chamber’s subsequent finding in Zakharov that the interception authorization (e.g., the court order or warrant) “must clearly identify a specific person to be placed under surveillance or a single set of premises as the premises in respect of which the authorisation is ordered. Such identification may be made by names, addresses, telephone numbers or other relevant information” (para. 264). In making this finding, it references paragraphs from Liberty describing the broad nature of the bulk interception warrants under British law. In that case, it was this description that led the Court to find the British legislation possessed insufficient clarity on the scope or manner of exercise of the State’s discretion to intercept communications. In one sense, therefore, the Grand Chamber seems to be retroactively annotating the Fourth Section’s Liberty decision so that it might become consistent with its decision in Zakharov. Without this revision, the Court would otherwise appear to depart to some extent — arguably, purposefully — from both Liberty and Weber.
  • Finally, the Grand Chamber took issue with the direct nature of the access enjoyed by Russian intelligence under the SORM system. The Court noted that this contributed to rendering oversight ineffective, despite the existence of a requirement for prior judicial authorization. Absent an obligation to demonstrate such prior authorization to the communications service provider, the likelihood that the system would be abused through “improper action by a dishonest, negligent or overly zealous official” was quite high (para. 270). Accordingly, “the requirement to show an interception authorisation to the communications service provider before obtaining access to a person’s communications is one of the important safeguards against abuse by the law-enforcement authorities” (para. 269). Again, this requirement arguably creates an unconquerable barrier for a number of modern bulk interception systems, which rely on the use of broad warrants to authorize the installation of, for example, fiber optic cable taps that facilitate the interception of all communications that cross those cables. In the United Kingdom, the Independent Reviewer of Terrorism Legislation David Anderson revealed in his essential inquiry into British surveillance in 2015, there are only 20 such warrants in existence at any time. Even if these 20 warrants are served on the relevant communications service providers upon the installation of cable taps, the nature of bulk interception deprives this of any genuine meaning, making the safeguard an empty one. Once a tap is installed for the purposes of bulk interception, the provider is cut out of the equation and can no longer play the role the Court found so crucial in Zakharov.
  • The Zakharov case not only levels a serious blow at bulk, untargeted surveillance regimes, it suggests the Grand Chamber’s intention to actively craft European Court of Human Rights jurisprudence in a manner that curtails such regimes. Any suggestion that the Grand Chamber’s decision was issued in ignorance of the technical capabilities or intentions of States and the continued preference for bulk interception systems should be dispelled; the oral argument in the case took place in September 2014, at a time when the Court had already indicated its intention to accord priority to cases arising out of the Snowden revelations. Indeed, the Court referenced such forthcoming cases in the fact sheet it issued after the Zakharov judgment was released. Any remaining doubt is eradicated through an inspection of the multiple references to the Snowden revelations in the judgment itself. In the main judgment, the Court excerpted text from the Director of the European Union Agency for Human Rights discussing Snowden, and in the separate opinion issued by Judge Dedov, he goes so far as to quote Edward Snowden: “With each court victory, with every change in the law, we demonstrate facts are more convincing than fear. As a society, we rediscover that the value of the right is not in what it hides, but in what it protects.”
  • The full implications of the Zakharov decision remain to be seen. However, it is likely we will not have to wait long to know whether the Grand Chamber intends to see the demise of bulk collection schemes; the three UK cases (Big Brother Watch & Ors v. United Kingdom, Bureau of Investigative Journalism & Alice Ross v. United Kingdom, and 10 Human Rights Organisations v. United Kingdom) pending before the Court have been fast-tracked, indicating the Court’s willingness to continue to confront the compliance of bulk collection schemes with human rights law. It is my hope that the approach in Zakharov hints at the Court’s conviction that bulk collection schemes lie beyond the bounds of permissible State surveillance.
Paul Merrell

US v. Comprehensive Drug Testing, Inc., 621 F. 3d 1162 - Court of Appeals, 9th Circuit ... - 0 views

scholar.google.com/scholar_case

surveillance-state 4th Amendment bulk-collection future-investigations

shared by Paul Merrell on 05 Dec 14 - No Cached
  • Concluding Thoughts
  • This case well illustrates both the challenges faced by modern law enforcement in retrieving information it needs to pursue and prosecute wrongdoers, and the threat to the privacy of innocent parties from a vigorous criminal investigation. At the time of Tamura, most individuals and enterprises kept records in their file cabinets or similar physical facilities. Today, the same kind of data is usually stored electronically, often far from the premises. Electronic storage facilities intermingle data, making them difficult to retrieve without a thorough understanding of the filing and classification systems used—something that can often only be determined by closely analyzing the data in a controlled environment. Tamura involved a few dozen boxes and was considered a broad seizure; but even inexpensive electronic storage media today can store the equivalent of millions of pages of information. 1176*1176 Wrongdoers and their collaborators have obvious incentives to make data difficult to find, but parties involved in lawful activities may also encrypt or compress data for entirely legitimate reasons: protection of privacy, preservation of privileged communications, warding off industrial espionage or preventing general mischief such as identity theft. Law enforcement today thus has a far more difficult, exacting and sensitive task in pursuing evidence of criminal activities than even in the relatively recent past. The legitimate need to scoop up large quantities of data, and sift through it carefully for concealed or disguised pieces of evidence, is one we've often recognized. See, e.g., United States v. Hill, 459 F.3d 966 (9th Cir.2006).
  • This pressing need of law enforcement for broad authorization to examine electronic records, so persuasively demonstrated in the introduction to the original warrant in this case, see pp. 1167-68 supra, creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant. The problem can be stated very simply: There is no way to be sure exactly what an electronic file contains without somehow examining its contents—either by opening it and looking, using specialized forensic software, keyword searching or some other such technique. But electronic files are generally found on media that also contain thousands or millions of other files among which the sought-after data may be stored or concealed. By necessity, government efforts to locate particular files will require examining a great many other files to exclude the possibility that the sought-after data are concealed there. Once a file is examined, however, the government may claim (as it did in this case) that its contents are in plain view and, if incriminating, the government can keep it. Authorization to search some computer files therefore automatically becomes authorization to search all files in the same sub-directory, and all files in an enveloping directory, a neighboring hard drive, a nearby computer or nearby storage media. Where computers are not near each other, but are connected electronically, the original search might justify examining files in computers many miles away, on a theory that incriminating electronic data could have been shuttled and concealed there.
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  • The advent of fast, cheap networking has made it possible to store information at remote third-party locations, where it is intermingled with that of other users. For example, many people no longer keep their email primarily on their personal computer, and instead use a web-based email provider, which stores their messages along with billions of messages from and to millions of other people. Similar services exist for photographs, slide shows, computer code and many other types of data. As a result, people now have personal data that are stored with that of innumerable strangers. Seizure of, for example, Google's email servers to look for a few incriminating messages could jeopardize the privacy of millions. It's no answer to suggest, as did the majority of the three-judge panel, that people can avoid these hazards by not storing their data electronically. To begin with, the choice about how information is stored is often made by someone other than the individuals whose privacy would be invaded by the search. Most people have no idea whether their doctor, lawyer or accountant maintains records in paper or electronic format, whether they are stored on the premises or on a server farm in Rancho Cucamonga, whether they are commingled with those of many other professionals 1177*1177 or kept entirely separate. Here, for example, the Tracey Directory contained a huge number of drug testing records, not only of the ten players for whom the government had probable cause but hundreds of other professional baseball players, thirteen other sports organizations, three unrelated sporting competitions, and a non-sports business entity—thousands of files in all, reflecting the test results of an unknown number of people, most having no relationship to professional baseball except that they had the bad luck of having their test results stored on the same computer as the baseball players.
  • Second, there are very important benefits to storing data electronically. Being able to back up the data and avoid the loss by fire, flood or earthquake is one of them. Ease of access from remote locations while traveling is another. The ability to swiftly share the data among professionals, such as sending MRIs for examination by a cancer specialist half-way around the world, can mean the difference between death and a full recovery. Electronic storage and transmission of data is no longer a peculiarity or a luxury of the very rich; it's a way of life. Government intrusions into large private databases thus have the potential to expose exceedingly sensitive information about countless individuals not implicated in any criminal activity, who might not even know that the information about them has been seized and thus can do nothing to protect their privacy. It is not surprising, then, that all three of the district judges below were severely troubled by the government's conduct in this case. Judge Mahan, for example, asked "what ever happened to the Fourth Amendment? Was it ... repealed somehow?" Judge Cooper referred to "the image of quickly and skillfully moving the cup so no one can find the pea." And Judge Illston regarded the government's tactics as "unreasonable" and found that they constituted "harassment." Judge Thomas, too, in his panel dissent, expressed frustration with the government's conduct and position, calling it a "breathtaking expansion of the `plain view' doctrine, which clearly has no application to intermingled private electronic data." Comprehensive Drug Testing, 513 F.3d at 1117.
  • Everyone's interests are best served if there are clear rules to follow that strike a fair balance between the legitimate needs of law enforcement and the right of individuals and enterprises to the privacy that is at the heart of the Fourth Amendment. Tamura has provided a workable framework for almost three decades, and might well have sufficed in this case had its teachings been followed. We have updated Tamura to apply to the daunting realities of electronic searches. We recognize the reality that over-seizing is an inherent part of the electronic search process and proceed on the assumption that, when it comes to the seizure of electronic records, this will be far more common than in the days of paper records. This calls for greater vigilance on the part of judicial officers in striking the right balance between the government's interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures. The process of segregating electronic data that is seizable from that which is not must not become a vehicle for the government to gain access to data which it has no probable cause to collect.
  • Paul Merrell on 05 Dec 14
     
    From a Ninth U.S. Circuit Court of Appeals en banc ruling in 2010. The Court's holding was that federal investigators had vastly overstepped the boundaries of multiple subpoenas and a search warrant --- and the Fourth Amendment --- by seizing records of a testing laboratory and reviewing them for information not described in the warrant or the subpoenas. At issue in this particular case was the government's use of a warrant that found probable cause to believe that the records contained evidence that steroids had been found in the urine of ten major league baseball players but searched the seized records for urine tests of other baseball players. The Court upheld the lower courts' rulings that the government was required to return all records other than those relevant to the ten players identified in the warrant. (The government had instead used the records of other player's urine tests to issue subpoenas for evidence relevant to those players potential use of steroids.) This decision cuts very heavily against the notion that the Fourth Amendment allows the bulk collection of private information about millions of Americans with or without a warrantor court order on the theory that some of the records *may* later become relevant to a lawful investigation.   Or rephrased, here is the en banc decision of the largest federal court of appeals (as many judges as most other federal appellate courts combined), in direct disagreement with the FISA Court orders allowing bulk collection of telephone records and bulk "incidental" collection of Americans' telephone conversations on the theory that the records *might* become relevant to national security investigations. Yet none of the FISA judges in any of the FISA opinions published thus far even cited, let alone distinguished, this Ninth Circuit en banc decision. Which says a lot of the quality of the legal research performed by the FISA Court judges. However, this precedent is front and center in briefs filed with the Ni
Paul Merrell

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.
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  • 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
Paul Merrell

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.
Paul Merrell

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.
  • ...3 more annotations...
  • “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.
Paul Merrell

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.”
  • ...1 more annotation...
  • 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.
Paul Merrell

Victory! Federal Court Recognizes Constitutional Rights of Americans on the No-Fly List... - 0 views

www.aclu.org/...ctory-federal-court-recognizes

war on terror™ no-fly-list Due Process litigation

shared by Paul Merrell on 31 Dec 13 - No Cached
  • A federal court took a critically important step late yesterday towards placing a check on the government's secretive No-Fly List. In a 38-page ruling in Latif v. Holder, the ACLU's challenge to the No-Fly List, U.S. District Court Judge Anna Brown recognized that the Constitution applies when the government bans Americans from the skies. She also asked for more information about the current process for getting off the list, to inform her decision on whether that procedure violates the Fifth Amendment guarantee of due process. We represent 13 Americans, including four military veterans, who are blacklisted from flying. At oral argument in June on motions for partial summary judgment, we asked the court to find that the government violated our clients' Fifth Amendment right to due process by barring them from flying over U.S. airspace – and smearing them as suspected terrorists – without giving them any after-the-fact explanation or a hearing at which to clear their names. The court's opinion recognizes – for the first time – that inclusion on the No-Fly List is a draconian sanction that severely impacts peoples' constitutionally-protected liberties. It rejected the government's argument that No-Fly list placement was merely a restriction on the most "convenient" means of international travel.
  • Such an argument ignores the numerous reasons an individual may have for wanting or needing to travel overseas quickly such as for the birth of a child, the death of a loved one, a business opportunity, or a religious obligation. According to the court, placement on the No-Fly List is like the revocation of a passport because both actions severely burden the right to international travel and give rise to a constitutional right to procedural due process: Here it is undisputed that inclusion on the No-Fly List completely bans listed persons from boarding commercial flights to or from the United States or over United States air space.  Thus, Plaintiffs have shown their placement on the No-Fly List has in the past and will in the future severely restrict Plaintiffs' ability to travel internationally. Moreover, the realistic implications of being on the No-Fly List are potentially far-reaching. For example, TSC [the Terrorist Screening Center] shares watchlist information with 22 foreign governments and United States Customs and Boarder [sic] Protection makes recommendations to ship captains as to whether a passenger poses a risk to transportation security, which can result in further interference with an individual's ability to travel as evidenced by some Plaintiffs' experiences as they attempted to travel abroad by boat and land and were either turned away or completed their journey only after an extraordinary amount of time, expense, and difficulty. Accordingly, the Court concludes on this record that Plaintiffs have a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the list. The court also found that the government's inclusion of our clients on the No-Fly List smeared them as suspected terrorists and altered their ability to lawfully board planes, resulting in injury to another constitutionally-protected right: freedom from reputational harm.
  • The importance of these rulings is clear. Because inclusion on the No-Fly List harms our clients' liberty interests in travel and reputation, due process requires the government to provide them an explanation and a hearing to correct the mistakes that led to their inclusion. But under the government's "Glomar" policy, it refuses to provide any information confirming or denying that our clients are on the list, let alone an after-the-fact explanation and hearing. The court has asked the ACLU and the government for more information about the No-Fly List redress procedure to help it decide the ultimate question of whether that system violates the Fifth Amendment right to due process. We are confident the court will recognize that the government's "Glomar" policy of refusing even to confirm or deny our clients' No-Fly List status (much less actually providing the reasons for their inclusion in the list) is fundamentally unfair and unconstitutional.
  • Paul Merrell on 31 Dec 13
     
    A case decision in August that I had missed, right here in Oregon. One of our Oregon federal judges gets it right after being reversed the first time by the 9th U.S. Circuit Court of Appeals. I've read the opinion. Looks quite solid. Plaintiffs were carefully chosen for this test case, 13 citizens placed on the no-fly list, all with compelling stories of winding up stranded, some overseas. Several are U.S. military veterans. All were told by government officials that the reason they could not board was because they were on the TSA no-fly list. At issue is whether they have a right to be informed of the information that resulted in them being placed on the no-fly list and a right to a hearing to seek correction of the information. Their constitutional interest in their reputations is also in play, since they have been classified by their government as too dangerous to allow to travel by commercial airline.   The district court case is not done; the judge has ordered further briefing on some issues. But the government is trying to defend a process in which no one is ever formally notified that they are on the no-fly list and is never advised of the reasons they are on the no-fly list. The number of Americans on the no-fly list is now over 700,000. But the judge has recognized that there is a constitutional right to travel and that it extends to international travel. From the opinion: "Plaintiffs contend the government has deprived them of their protected liberty interest in travel. In Kent v. Dulles, 357 U.S. 116 (1958), the Supreme Court held "[t]he right to travel is part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment."  Id. at 125. As noted by the Ninth Circuit, "the [Supreme] Court has consistently treated the right to international travel as a liberty interest that is protected by the Due Process Clause of the Fifth Amendment." DeNieva v. Reyes, 966 F.2d 480, 485 (9th Cir. 1992)(emp
Paul Merrell

One Click Politics - 0 views

oneclickpolitics.com/...movetoamend

shared by Paul Merrell on 03 Jun 14 - No Cached
  • Senate Joint Resolution 19 is a proposed Constitutional Amendment to overturn Citizens United, but it doesn’t address corporate constitutional rights at all. Please send a message to the authors of SJR19 -- let them know that Corporate Personhood MUST be included in the language of the amendment... What You Can Do: Help movetoamend accomplish these goals by contributing your power of voice. Take action now by sending a message to Congress telling them why these issues are important to you.
  • Formed in September 2009, Move to Amend is a coalition of hundreds of organizations and hundreds of thousands of individuals committed to social and economic justice, ending corporate rule, and building a vibrant democracy that is genuinely accountable to the people, not corporate interests.
  • Senate Joint Resolution 19 is a proposed Constitutional Amendment to overturn Citizens United, but it doesn’t address corporate constitutional rights at all. Please send a message to the authors of SJR19 -- let them know that Corporate Personhood MUST be included in the language of the amendment... What You Can Do: Help movetoamend accomplish these goals by contributing your power of voice. Take action now by sending a message to Congress telling them why these issues are important to you.
  • Paul Merrell on 03 Jun 14
     
    I have never forwarded action alerts to others by email. The typical action alert winds up sharing your email address with at least one other organization. The next thing you know you're getting donor solicitations from both the Republican and Democratic party central national coordinating committees. It's not just that I'm a political independent; it's an ongoing task to unsubscribe from unwanted mailing lists. Today I got an action alert from Move to Amend, only the second I have received from the organization. This group does not share your email address with anyone. If you choose to participate in this action alert, which is nearing 1 million messages sent, there is a send button near the bottom of the page to participate. That takes you to a page where you can read the message that will be sent. Move to Amend is a non-partisan organization that has been working toward a constitutional amendment for around 4 years that would clear the way for Congress to regulate campaign contributions, in light of Supreme Court decisions declaring that corporations have a First Amendment right to make campaign contributions in any amount they desire. But their amendment would also abolish constitutional rights for all fictional legal "persons" other than human beings and government at the local, state, and national levels. Move to Amend has been going about the process the right way and to date has scored supporting resolutions in 16 state legislatures and hundreds of community governments. That's enough to get oligarchs worried. So there's a bill gathering steam in the U.S. Senate, SJR 19, that's a watered-down version. It grants Congress and the states power to regulate campaign contributions, but it does not speak to the problem of granting human constitutional rights to entities that have existence only in the eyes of the law. The Senate bill is here: http://goo.gl/Nkvfkg Our nation's Founders unmistakably did not contemplate that corporations would have constitution
Paul Merrell

NSA grapples with huge increase in records requests - 0 views

www.usatoday.com/...3519889

surveillance state NSA litigation constitutional law

shared by Paul Merrell on 19 Nov 13 - No Cached
  • Fueled by the Edward Snowden scandal, more Americans than ever are asking the National Security Agency if their personal life is being spied on.And the NSA has a very direct answer for them: Tough luck, we're not telling you.Americans are inundating the NSA with open-records requests, leading to an 888% increase in such inquiries in the past fiscal year. Anyone asking is getting a standard pre-written letter saying the NSA can neither confirm nor deny that any information has been gathered."This was the largest spike we've ever had," said Pamela Phillips, the chief of the NSA Freedom of Information Act and Privacy Act Office, which handles all records requests to the agency. "We've had requests from individuals who want any records we have on their phone calls, their phone numbers, their e-mail addresses, their IP addresses, anything like that."
  • News reports of the NSA's surveillance program motivates most inquirers, she said.During the first quarter of the NSA's last fiscal year, which went from October to December 2012, it received 257 open-records requests. The next quarter, it received 241. However, on June 6, at the end of NSA's third fiscal quarter, news of Snowden's leaks hit the press, and the agency got 1,302 requests.In the next three months, the NSA received 2,538 requests. The spike has continued into the fall months and has overwhelmed her staff, Phillips said
  • The first court challenge to the federal government's mass surveillance of Americans' phone and Internet records opened Monday with two potential strikes against it, but the judge predicted it could go all the way to the Supreme Court.Federal District Court Judge Richard Leon expressed concern that conservative activist Larry Klayman and others lacked standing to bring the case and that his court lacked jurisdiction -- factors that could further insulate the spy programs from public oversight."To me, this is the overarching question," Leon said, referring to "this court's authority or lack thereof to inject itself into this situation."
  • ...3 more annotations...
  • The two programs, made public earlier this year by Edward Snowden, a former National Security Agency contractor now living in Russia, are reviewed by a top-secret court under the Foreign Intelligence Surveillance Act. But challengers from the political right and left are trying to have that court's periodic approvals circumvented.From the right on Monday came Klayman, a former Reagan administration lawyer who leads the advocacy group Freedom Watch. In an hour-long hearing, he called Leon "the last guard ... the last sentry to the tyranny in this country."But Justice Department lawyer James Gilligan said Klayman lacked standing to bring the case because he cannot prove the NSA examined his phone or Internet records. Gilligan also said Leon cannot review the statutory authority granted by Congress under FISA -- only the secret courts and the Supreme Court have that power.
  • Coincidentally, the Supreme Court on Monday turned down a chance to review the NSA's harvesting of Verizon phone records in a case brought by the watchdog group Electronic Privacy Information Center. The justices offered no reason for their decision.The law "makes it very difficult to challenge these determinations,' said Marc Rotenberg, president of the privacy group.Another challenge, brought by the American Civil Liberties Union, will be heard by U.S. District Court Judge William Pauley in Manhattan on Friday. Those two cases are likely to be appealed "upstairs," Leon said -- to appeals courts and possibly the Supreme Court.Both Klayman and the ACLU are seeking preliminary injunctions that would put a halt to the NSA surveillance. Both have targeted a program that sweeps up domestic telephone records, even though the targets are foreign terrorists. Klayman also is challenging a separate program that goes after cellphone and computer data from major wireless companies and Internet service providers.
  • Amnesty International and a coalition of lawyers, journalists and others brought the last Supreme Court challenge to government surveillance programs in 2012. But in February, the justices ruled 5-4 that the challengers lacked standing because they could not prove they had been wiretapped.Even if judges rule against Klayman and the ACLU, the controversial programs may get a full court test because the Justice Department has begun notifying criminal defendants whose arrests were based on warrantless surveillance. That makes the prospect of a future Supreme Court case more likely.
Gary Edwards

Weapons of Mass Discussion: HR 475: Is Obamacare Unconstitutional? - 0 views

massdiscussion.blogspot.com/...bamacare-unconstitutional.html

HR-475 Obamacare

shared by Gary Edwards on 16 Dec 11 - No Cached
  • Gary Edwards on 16 Dec 11
     
    The Supreme Court will begin hearing arguments on the constitutional challenges to the Patient Protection and Affordable Care Act in March. The court is expected to issue its ruling in late June. Last month, the Supreme Court received a resounding and unmistakable message from the state of Ohio.  Millions of Ohioans rejected ObamaCare and overwhelmingly passed the Ohio Health Care Freedom Amendment, repudiating ObamaCare's mandates and infringements on individual liberty and personal freedom. Now it's time for the Supreme Court to hear from Congress. As a coequal branch of government in our system of checks and balances, it is important that Congress clearly make its opinion known to the Supreme Court before it rules. Congressman Phil Roe, M.D. (R-TN) has introduced H. Res. 475. The resolution is short and to-the-point: It declares ObamaCare to be unconstitutional and the onerous individual mandate to be non-severable from rest of the law. Currently 63 members of Congress are co-sponsors of Congressman Roe's resolution. We need more. 
Gary Edwards

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
Paul Merrell

Supreme Court: Police can't hold suspects without probable cause, to wait for drug-snif... - 0 views

boingboing.net/...supreme-court-police-cant.html

civil-liberties 4th Amendment Supreme-Court

shared by Paul Merrell on 26 Apr 15 - No Cached
  • The U.S. Supreme Court has ruled 6-3 that the Constitution prohibits police from holding a suspect without probable cause, not even for less than 10 extra minutes--which is about the time it might take to, say, bring in a drug-sniffing dog. What does this mean for you, if you're a law-abiding citizen stopped by over-aggressive cops over something trivial, then detained? As my friend Patrick Ball of hrdag.org put it, “If the police *ask* you to wait, politely decline, ask if you're being detained, and if not, drive away.” From The Hill: Writing on behalf of the court, Justice Ruth Bader Ginsburg declared that the constitutional protections against unreasonable search and seizure prevent police from extending an otherwise completed traffic stop to allow for a drug-sniffing dog to arrive.
  • “We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures,” she ruled. The case, Rodriguez v. United States, was brought by a man who was pulled over for driving on the shoulder of a Nebraska highway. After the police pulled him over, checked his license and issued a warning for his erratic driving, the officer asked whether he could walk his drug-sniffing dog around the vehicle. The driver, Dennys Rodriguez, refused. However, the officer nonetheless detained him for “seven or eight minutes” until a backup officer arrived. Then, the original officer retrieved his dog. After sniffing around the car, the dog detected drugs, and Rodriguez was indicted for possessing methamphetamine. In all, the stop lasted less than 30 minutes. Justices Clarence Thomas, Samuel Alito and Anthony Kennedy disagreed with the ruling, arguing that cops should be able to reasonably detain people to check out other possible law violations--as they did with the case at the heart of this ruling. "Supreme Court: Cops can’t hold suspects to wait for drug-sniffing dog" [thehill.com]
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