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With some sharp words for the Obama administration, a federal judge on Tuesday declined to second-guess her earlier decision ordering the release of videos of a Guantánamo detainee being force-fed. While acknowledging that more appeals are on the way in the long-running case, U.S. District Judge Gladys Kessler said in her nine-page decision that nothing has happened to change her mind about the videos. She first ordered their release in October 2014.

“What the government is really saying is that its classification system trumps the decisions of the federal courts as to the public’s access to official court records,” Kessler wrote. “In other words, the Executive Branch (in this case, the military) purports to be a law unto itself.” 11 hours: the prison camp videos the judge ordered redacted then released, a year ago Kessler added that “the government’s justifications for barring the American public from seeing the videotapes are not sufficiently rational and plausible to justify barring release of the videotapes.” Sixteen media organizations, including the New York Times, Associated Press and McClatchy, have joined in seeking release of the Guantánamo tapes to the public on First Amendment grounds.

When Edward Snowden disclosed details of America’s huge surveillance program two years ago, many in Europe thought that the response would be increased transparency and stronger oversight of security services. European countries, however, are moving in the opposite direction. Instead of more public scrutiny, we are getting more snooping. Pushed to respond to the atrocious attacks in Paris and Copenhagen and by the threats posed by the Islamic State to Europe’s internal security, several countries are amending their counterterrorism legislation to grant more intrusive powers to security services, especially in terms of mass electronic surveillance.

Governments now argue that to guarantee our security we have to sacrifice some rights. This is a specious argument. By shifting from targeted to mass surveillance, governments risk undermining democracy while pretending to protect it.They are also betraying a long political and judicial tradition affording broad protection to privacy in Europe, where democratic legal systems have evolved to protect individuals from arbitrary interference by the state in their private and family life. The European Court of Human Rights has long upheld the principle that surveillance interferes with the right to privacy. Although the court accepts that the use of confidential information is essential in combating terrorist threats, it has held that the collection, use and storage of such information should be authorized only under exceptional and precise conditions, and must be accompanied by adequate legal safeguards and independent supervision. The court has consistently applied this principle for decades when it was called to judge the conduct of several European countries, which were combating domestic terrorist groups.

More recently, as new technologies have offered more avenues to increase surveillance and data collection, the court has reiterated its position in a number of leading cases against several countries, including France, Romania, Russia and Britain, condemned for having infringed the right to private and family life that in the interpretation of the court covers also “the physical and psychological integrity of a person.”

On Thursday, Attorney-General George Brandis introduced a new national security bill into the Senate. This is the fifth tranche of national security legislation to be introduced into parliament since July 2014.

This bill includes a host of new measures designed to address the evolving threat posed by terrorism. These include: a new offence of advocacy of genocide; amendments to the control order regime, so it applies to persons 14 years and older, and new measures to monitor controlees; and clarification of the basis for issuing a preventative detention order. But the bill’s most concerning aspect is the proposal to expand the secrecy provisions available to courts in control order proceedings. Keeping national security information secret in court Since 2004, legislation has been in place to deal with information that is likely to prejudice national security in federal court proceedings. This legislation created a special closed hearing procedure to determine whether national security information could be disclosed in court and, if so, in what form. This process regulates disclosure between the parties – that is, who gets to see what.

The bill expands this by creating special provisions that allow the court to consider sensitive material that the controlee and legal representative have not seen in proceedings to impose, confirm or vary a control order. It provides that a court can consider all of the information: contained in an original source document in control order proceedings, even where the controlee and their legal representative have been provided with only a redacted or summarised form of the document; contained in an original source document in control order proceedings, even where the controlee and their legal representative have not been provided with any information contained in the original source document; and provided by a witness, even where the information provided by the witness is not disclosed to the controlee or their legal representative. The bill’s effect is to allow secret evidence into control order proceedings.

Steven Salaita will not be reinstated under the terms of an out of court settlement with the University of Illinois. The deal will pay Salaita $875,000 – about ten times the annual salary he would have received as a tenured professor in the American Indian Studies program at the university’s flagship Urbana-Champaign campus. “This settlement is a vindication for me, but more importantly, it is a victory for academic freedom and the First Amendment,” Salaita said in a release from his legal counsel, the Center for Constitutional Rights and the law firm Loevy & Loevy. The settlement brings an end to Salaita’s breach of contract lawsuit against university trustees and administrators over his August 2014 firing because of his tweets excoriating Israel’s attack on Gaza. Salaita had sought reinstatement as well as financial damages.

The university statement said Salaita would receive a lump sum of $600,000, while the remaining amount would cover his legal fees.

Salaita’s case became a cause celebre for academic freedom, highlighting the role of pro-Israel donors in pressuring university administrators. Thousands of academics pledged to boycott the university until he was reinstated. The Salaita affair devastated and demoralized the university’s celebrated American Indian Studies program, leading to the departure of several faculty. His firing also earned the University of Illinois a formal censure from the American Association of University Professors for violating academic freedom, a rare rebuke and severe blow to its reputation.

One of the consequences of the Iran Deal was the declaration by countless politicians that they were going to crack down on Iran’s sponsorship of terrorism. Even the White House signed on to this idea. Well now some of the backlash has officially begun: Congress is linking Iran with ISIS, even though Iran is fighting ISIS. [and ISIS is supported by the US, GR ed.] Few mainstream publications have picked up on the fact that in a response to the San Bernardino killings, the Congress last week passed legislation, which the president duly signed, that puts Iran in an axis of international-terrorist evil along with Syria, Iraq and Sudan. The legislation amends our country’s visa waiver program. Iranian dual nationals, as well as US citizens who have visited Iran, will need visas to get into the U.S. Reuters: Iranian Foreign Minister Mohammad Javad Zarif on Friday said it was “absurd” that Tehran should be included on the list. “No Iranian nor anybody who visited Iran had anything to do with the tragedies that have taken place in Paris or in San Bernardino or anywhere else,” he said in an interview with Middle East-focused website Al Monitor. Secretary of State John Kerry promptly met with Zarif, his Iranian counterpart, to assure him that the new law doesn’t undercut the Iran deal. But the Iranians say that the legislation is the result of pro-Israel lobbying. And even the State Department describes Iran as a state sponsor of terrorism.  

 Iranians say the bill reflects pro-Israel lobbying. Reuters: Iran said on Monday that Israeli lobbying was behind a new measure passed by the U.S. Congress that will prevent visa-free travel to the United States for people who have visited Iran or hold Iranian nationality. The measure, which President Barack Obama signed into law on Friday, also applies to Iraq, Syria and Sudan, and was introduced as a security measure after the Islamic State attacks in Paris and a similar attack in San Bernardino, California.

More from Reuters‘ description of the Israel lobby angle: Iran, a Shi’ite Muslim theocracy staunchly opposed to Sunni radicalism espoused by groups like Islamic State, says its inclusion on the list is intended to undermine a deal on its nuclear programme that Tehran reached with world powers, including the United States, in July, known as the JCPOA. Iranian Foreign Ministry spokesman Hossein Jaberi Ansari said in a televised news conference that the U.S. measure had been passed “under pressure from the Zionist lobby and currents opposed to the JCPOA”. The administration wants to have it both ways on blaming Iran. Yesterday on National Public Radio, Adam Szubin, the counter-terrorism finance under secretary at the Treasury Department, also put Iran in the category of ISIS, as an international terror deliverer: if you are familiar with the model of how al-Qaida or groups like Hamas and even Hezbollah have financed themselves, they’ve typically been heavily reliant on foreign donations, whether from state sponsors like Iran or whether from wealthy what we call deep-pocket donors, often in the Gulf. But that financing model is not ISIL. When you have a group that’s raising hundreds of millions of dollars in a year from internal sources, we don’t have those same chokepoints to go after in terms of the foreign flows.

Two House Republicans -- both opponents of opening up combat roles to women -- introduced a bill Thursday called "Draft America's Daughters Act of 2016," which would require women to register for the draft. The bill was offered by Rep. Duncan Hunter, a Republican from California and former Marine, and co-sponsored by Rep. Ryan Zinke, a Republican from Montana and former Navy SEAL. It would "amend the Military Selective Service Act to extend the registration and conscription requirements of the Selective Service System, currently applicable only to men between the ages of 18 and 26, to women between those ages to reflect the opening of combat arms Military Occupational Specialties to women," according to copy of the text. Hunter, a Major in the Marine reserves and a veteran of Iraq and Afghanistan, and Zinke, a retired Navy SEAL Commander who served in Iraq, were both likely to vote against their own bill but argued that a debate in Congress was necessary on lifting the combat exclusion rule for women.

While bankers can probably get their highs any number of ways, the Mexican drug cartels need financial institutions to clean their dirty money. And, it seems, there is no better bank for that than London-based HSBC, which is one of the world’s largest. In the first six months of last year, it reported a pre-tax profit of $13.6 billion.According to a lawsuit filed against HSBC earlier this month, it earned some of those profits by allowing the drug cartels to cycle billions of dollars through it.“From 2004 through at least 2008, HSBC Mexico accepted over $16.1 billion in cash deposits from customers throughout Mexico. This amount eclipsed the amount of USD cash deposits at financial institutions with market shares multiple times greater than HSBC Mexico’s,” the lawsuit alleges.

HSBC is no stranger to accusations of helping the cartels. In 2012, the bank paid $1.9 billion as part of an agreement with the United States and admitted that it had failed to establish an effective anti-money laundering (AML) program. In spite of having to pay such a massive penalty, no HSBC employees went to jail.

Even though the new lawsuit addresses an old problem, the legal action is unique for several reasons. It was brought on behalf of the families of several Americans killed by the Mexican cartels. The action seeks redress under a 1996 law (amended following the 9/11 attacks) that allows victims of terrorism to seek compensation from any organization that supported the perpetrators of such crimes.

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.

HE INTERCEPT HAS OBTAINED a secret, internal U.S. government catalogue of dozens of cellphone surveillance devices used by the military and by intelligence agencies. The document, thick with previously undisclosed information, also offers rare insight into the spying capabilities of federal law enforcement and local police inside the United States. The catalogue includes details on the Stingray, a well-known brand of surveillance gear, as well as Boeing “dirt boxes” and dozens of more obscure devices that can be mounted on vehicles, drones, and piloted aircraft. Some are designed to be used at static locations, while others can be discreetly carried by an individual. They have names like Cyberhawk, Yellowstone, Blackfin, Maximus, Cyclone, and Spartacus. Within the catalogue, the NSA is listed as the vendor of one device, while another was developed for use by the CIA, and another was developed for a special forces requirement. Nearly a third of the entries focus on equipment that seems to have never been described in public before.

The Intercept obtained the catalogue from a source within the intelligence community concerned about the militarization of domestic law enforcement. (The original is here.) A few of the devices can house a “target list” of as many as 10,000 unique phone identifiers. Most can be used to geolocate people, but the documents indicate that some have more advanced capabilities, like eavesdropping on calls and spying on SMS messages. Two systems, apparently designed for use on captured phones, are touted as having the ability to extract media files, address books, and notes, and one can retrieve deleted text messages. Above all, the catalogue represents a trove of details on surveillance devices developed for military and intelligence purposes but increasingly used by law enforcement agencies to spy on people and convict them of crimes. The mass shooting earlier this month in San Bernardino, California, which President Barack Obama has called “an act of terrorism,” prompted calls for state and local police forces to beef up their counterterrorism capabilities, a process that has historically involved adapting military technologies to civilian use. Meanwhile, civil liberties advocates and others are increasingly alarmed about how cellphone surveillance devices are used domestically and have called for a more open and informed debate about the trade-off between security and privacy — despite a virtual blackout by the federal government on any information about the specific capabilities of the gear.

ANY OF THE DEVICES in the catalogue, including the Stingrays and dirt boxes, are cell-site simulators, which operate by mimicking the towers of major telecom companies like Verizon, AT&T, and T-Mobile. When someone’s phone connects to the spoofed network, it transmits a unique identification code and, through the characteristics of its radio signals when they reach the receiver, information about the phone’s location. There are also indications that cell-site simulators may be able to monitor calls and text messages. In the catalogue, each device is listed with guidelines about how its use must be approved; the answer is usually via the “Ground Force Commander” or under one of two titles in the U.S. code governing military and intelligence operations, including covert action.

There’s a lot that’s remarkable about last Tuesday’s Third Circuit decision in Hassan v. City of New York, which Faiza Patel cogently summarized in her post last week. In a nutshell, Hassan involves a challenge to secret intelligence operations carried out by the New York Police Department (NYPD) over the years since September 11 that allegedly targets Muslim communities “based on the false and stigmatizing premise that Muslim religious identity ‘is a permissible proxy for criminality, and that Muslim individuals, businesses, and institutions can therefore be subject to pervasive surveillance not visited upon individuals, businesses, and institutions of any other religious faith or the public at large.'” The district court had tersely granted the City’s motion to dismiss both because it concluded the plaintiffs lacked standing and because, in the alternative, it held that the plaintiffs had failed to overcome the pleading burden articulated by the Supreme Court in Iqbal. But the Third Circuit reversed on both fronts, holding that the plaintiffs’ allegations, if true, were more than enough to establish both that they had suffered an injury in fact sufficient to satisfy Article III standing, and that their equal protection and First Amendment claims were sufficiently plausible to satisfy Iqbal. To be sure, the Third Circuit’s decision is interlocutory — coming at a very preliminary stage in the litigation. But what I want to suggest in the post that follows is that, as much as any other post-September 11 judicial decision, Hassan represents the full-throated repudiation of the Supreme Court’s infamous World War II-era ruling in Korematsu v. United States that has been so long in coming — and so thoroughly overdue.

As I’ve written about before, Korematsu reflects two separate — but equally important — constitutional failures. The first failure was the internment policy itself, which we now know (and which the US government knew at the time) to have been a completely unnecessary — if not hysterical — overreaction to hyperbolic and (after Midway, at least) categorically overstated fears of a Japanese invasion of the West Coast. By itself, the camps were a dark stain on the history of civil liberties in the United States — albeit one of many, alas. But the second failure was, historically, the far more significant and unique one — the Supreme Court’s conscious constitutional rationalization of the internment policy, based upon a combination of naïveté on the Justices’ part and the affirmatively misleading (if not downright disingenuous) briefing by the federal government. As Justice Robert H. Jackson understood — and forcefully articulated — in his Korematsu dissent, the real violence to the “rule of law” resulting from the camps was thus not the underlying policy, but rather its validation by the Supreme Court. In his words, “a military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution.”

But we’ve struggled somewhat with the second constitutional failure. The courts have repudiated Korematsu’s conviction; the Office of the Solicitor General has confessed error for its role in perpetuating the government’s misleading case before the Supreme Court; and scholars have suggested that Korematsu itself has become part of the “anti-canon” — the class of Supreme Court decisions so reviled that they are cited, if at all, in support of the wrongness of their holdings. But Korematsu itself remains on the books, as do broader concerns that courts are still vulnerable to Korematsu — style reasoning, i.e., that the need to protect national security might provide legal justification for government conduct that would otherwise be unjustifiable. Indeed, one need look no further than the ongoing debate over the SSCI’s torture report for evidence of the Korematsu mentality being alive and well.

The U.S. government must get a grip on the massive opening that the CIA, through its misfeasance, nonfeasance and malfeasance, has created. If Tuesday’s WikiLeaks document dump is authentic, as it appears to be, then the agency left open electronic gateways that make all Americans vulnerable to spying, eavesdropping and technological manipulation that could bring genuine harm. That the CIA has reached into the lives of all Americans through its wholesale gathering of the nation’s “haystack” of information has already been reported. It is bad enough that the government spies on its own people. It is equally bad that the CIA, through its incompetence, has opened the cyberdoor to anyone with the technological skills and connections to spy on anyone else. The constant erosion of privacy at the hands of the government and corporations has annihilated the concept of a “right to privacy,” which is embedded in the rationale of the First, Third, Fourth, Ninth and Fourteenth Amendments to the U.S. Constitution. It is becoming increasingly clear that we are sliding down the slippery slope toward totalitarianism, where private lives do not exist.

We have entered a condition of constitutional crisis that requires a full-throated response from the American people. I have repeatedly warned about the dangers of the Patriot Act and its successive iterations, the execrable national security letters that turn every FBI agent into a star chamberlain, the dangers of fear-based security policies eroding our republic. We have crossed the threshold of a cowardly new world, and it’s time we tell the government and the corporations who have intruded to stop it. 

One of the most bizarre aspects of the all-consuming Russia frenzy is the Democrats’ fixation on changes to the RNC platform concerning U.S. arming of Ukraine. The controversy began in July when the Washington Post reported that “the Trump campaign worked behind the scenes last week to make sure the new Republican platform won’t call for giving weapons to Ukraine to fight Russian and rebel forces.” Ever since then, Democrats have used this language change as evidence that Trump and his key advisers have sinister connections to Russians and corruptly do their bidding at the expense of American interests. Democratic Senator Ben Cardin, the ranking member of the Senate Foreign Relations Committee, spoke for many in his party when he lambasted the RNC change in a July letter to the New York Times, castigating it as “dangerous thinking” that shows Trump is controlled, or at least manipulated, by the Kremlin. Democrats resurrected this line of attack this weekend when Trump advisers acknowledged that campaign officials were behind the platform change. This attempt to equate Trump’s opposition to arming Ukraine with some sort of treasonous allegiance to Putin masks a rather critical fact: namely, that the refusal to arm Ukraine with lethal weapons was one of Barack Obama’s most steadfastly held policies. The original Post article that reported the RNC platform change noted this explicitly:

A changing-places moment brought about by Russia-gate is that liberals who are usually more skeptical of U.S. intelligence agencies, especially their evidence-free claims, now question the patriotism of Americans who insist that the intelligence community supply proof to support the dangerous claims about Russian ‘hacking” of Democratic emails especially when some  veteran U.S. government experts say the data would be easily available if the Russians indeed were guilty. One of those experts is William Binney, a former high-level National Security Agency intelligence official who, after his 2001 retirement, blew the whistle on the extraordinary breadth of NSA surveillance programs. His outspoken criticism of the NSA during the George W. Bush administration made him the subject of FBI investigations that included a raid on his home in 2007. Even before Edward Snowden’s NSA whistleblowing, Binney publicly revealed that NSA had access to telecommunications companies’ domestic and international billing records, and that since 9/11 the agency has intercepted some 15 trillion to 20 trillion communications. Snowden has said: “I have tremendous respect for Binney, who did everything he could according to the rules.”

I spoke to Binney on Dec. 28 about Russia-gate and a host of topics having to do with spying and America’s expanding national security state.

Bernstein: Your expertise was in the Soviet Union and so you must know a lot about bugging.  Do you believe that Russia hacked and undermined our last election?  Can Trump thank Russia for the result? Binney:  We at Veteran Intelligence Professionals for Sanity (VIPS) published an article on this in July.  First of all, if any of the data went anywhere across the fiber optic world, the NSA would know.  Just inside the United States, the NSA has over a hundred tap points on the fiber lines, taking in everything.    Mark Klein exposed some of this at the AT&T facility in San Francisco. This is not for foreigners, by the way, this is for targeting US citizens.  If they wanted only foreigners, all they would have to do was look at the transatlantic cables where they surface on the coast of the United States.  But they are not there, they are distributed among the US population. Bernstein: So if, in fact, the Russians were tapping into DNC headquarters, the NSA would absolutely know about it. Binney: Yes, and they would also have trace routes on where they went specifically, in Russia or anywhere else.  If you remember, about three or four years ago, the Chinese hacked into somewhere in the United States and our government came out and confirmed that it was the Chinese who did it, and it came from a specific military facility in Shanghai.  The NSA had these trace route programs embedded by the hundreds across the US and all around the world.