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Paul Merrell

Defending Dissent » New Docs Show Army Coordinated Spy Ring - 1 views

www.defendingdissent.org/...army-spy-ring

surveillance state Army fusion-centers litigation

shared by Paul Merrell on 30 May 14 - No Cached
  • Army illegally supplied  intelligence on nonviolent antiwar protesters to FBI and police in multiple states Tacoma, WA – Recently obtained public records confirm an Army-led, multi-agency spy network that targeted “leftists/anarchists” as domestic terrorists. The Army used illegal infiltration to gather information on nonviolent antiwar protesters, disseminate it to the FBI and police departments in multiple states, and in some cases used it to disrupt planned protests by preemptively and falsely arresting activists. Public records obtained last month by Olympia activist Paul French reveal new evidence in the widely-watched Army spying case Panagacos v. Towery. An email from November 2007, in particular, shows that intelligence analyst John J. Towery was paid by the Army to infiltrate political groups and share unlawfully obtained intelligence with a growing network of law enforcement agencies, including the FBI, and police departments in Los Angeles, Portland, Eugene, Everett, and Spokane. The Towery email not only represents a broader spying program than previously thought, it also confirms the program was led by the Army, a fact contradicted by Towery’s 2009 sworn statements.
  • “The latest revelations show how the Army not only engaged in illegal spying on political dissidents, it led the charge and tried to expand the counterintelligence network targeting leftists and anarchists,” said Larry Hildes, a National Lawyers Guild attorney who filed the Panagacos lawsuit in 2010. “By targeting activists without probable cause, based on their ideology and the perceived political threat they represent, the Army clearly broke the law and must be held accountable.” Previously obtained public records indicate that absent such accountability, the Army will continue to spy on and target protesters, which it did until at least 2010, long after Towery’s identity was exposed. Public records previously obtained in 2009 already established that over a two-year period beginning in 2006, Towery (under the alias “John Jacob”) spied on the Olympia antiwar group Port Militarization Resistance (PMR) as well as several other organizations, including Students for a Democratic Society, the Industrial Workers of the World, and Iraq Veterans Against the War. It has also already been established that Towery’s intelligence was passed on to the Washington State Fusion Center, a communications hub of  local, state and federal law enforcement, and then used by local police to target activists for repeated harassment, preemptive and false arrest, excessive use of force, and malicious prosecution
  • The recently disclosed Towery email was a follow-up to a 2007 Domestic Terrorism Conference he attended in Spokane, during which “domestic terrorist” dossiers on some of the Panagacos plaintiffs were distributed. The Towery email shows the development of a multi-agency spying apparatus in intimate detail. “I thought it would be a good idea to develop a leftist/anarchist mini-group for intel sharing and distro,” wrote the Army analyst to several law enforcement officials. Towery references books, “zines and pamphlets,” and a “comprehensive web list” as source material, but cautions the officials on file sharing “because it might tip off groups that we are studying their techniques, tactics and procedures.” Towery, who worked at Joint Base Lewis-McChord, not only coordinated his actions with local, state and federal law enforcement agencies, many of whom are named defendants in the Panagacos case, he also admitted to eavesdropping on a confidential, privileged attorney-client email listserv of criminal defendants and their legal counsel. Such conduct is considered a constitutional violation, but Towery also took sensitive information from the listserv vital to a pending criminal trial in 2007 and passed it on to fusion center officials who then transmitted it to prosecutors, forcing a mistrial in a case the defense was winning handily. The case was later dismissed for prosecutorial misconduct.
  • ...2 more annotations...
  • The public records disclosure comes as government spying and criticism of the National Security Agency’s surveillance program has reached a fever pitch. However, a little-known and rarely, if ever, enforced law from 1878 distinguishes the spying under Panagacos from that of the NSA. The Posse Comitatus Act prohibits the military from enforcing domestic laws on U.S. soil by making such actions a Gross Misdemeanor, yet to-date no official has been prosecuted under the Act. Instead of conceding to the violations, the Army is currently using the Panagacos case to try to seal nearly 10,000 pages of documents, many of which are incriminating and embarrassing to the government. The legal effort to unseal those documents will play out over the next few weeks. The Obama Administration tried to dismiss the Panagacos lawsuit, but in a Ninth Circuit decision from December 2012 the court rejected the government’s arguments, ruling that allegations of First and Fourth Amendment violations were “plausible,” and ordered the case to proceed to trial. The lawsuit was filed on behalf of seven PMR members who sought to oppose the wars in Iraq and Afghanistan through nonviolent civil disobedience and is being heard by U.S. District Court Judge Ronald B. Leighton. In addition to Towery, named defendants in Panagacos include Thomas Rudd, one of Towery’s superiors at Joint Base Lewis-McChord, the U.S. Army, Navy, and Coast Guard, as well as certain officials within its ranks, the City of Olympia and its police department, the City of Tacoma and its police department, Pierce County, and various personnel from those jurisdictions.
  • Panagacos v. Towery is currently in the discovery stage and is scheduled to go to trial in June 2014. Further information: Recently disclosed Towery email Panagacos lawsuit complaint Domestic terrorism dossiers on plaintiffs
  • Paul Merrell on 30 May 14
     
    One I had missed from February, 2014. I believe I had bookmarked something about this before the lawsuit was filed. Now not only has the case been filed but the alleged grounds for the lawsuit have been greenlighted by the 9th U.S. Circuit Court of Appeals. If you click through the link to the court's opinion, you'll find one of the Ninth Circuit's shorter opinions, less than five pages, which does not even mention that the defendants were employed by the U.S. Army or any branch of government, while still rejecting their claim of government officials' qualified immunity from suit for the alleged First and Fourth Amendment violations. The third amended complaint sufficiently alleged facts to support claims that had been clearly established as violative of the First and Fourth Amendments.   It's clear that the plaintiffs have smoking gun evidence and that the National Lawyers' Guild is all over this one. Trial is scheduled next month, according to the article. It's just under 300 miles from here to Seattle, but I just might make the trip to watch a few days of this trial. Strong First Amendment cases for damages that survive appellate review of the qualified immunity nearly always settle before trial. But this one smells like it is going to trial for publicity purposes even if not for the vindication of rights, considering the nature of the organizations involved both as targets of the surveillance and their lawyers. It's great entertainment watching government guys and gals squirm on the witness stand when they've been caught violating civil rights. In criminal cases, invoking the Fifth Amendment right against self-incrimination cannot be taken as evidence of guilt. But in a federal civil rights case, that entitles the plaintiffs to have the jury instructed that it can infer liability from the resort to the Fifth Amendment to refuse answering questions.  Better back in the day when I was the lawyer asking the questions. But it's still great fun just to watch
Gary Edwards

The Basic Library - Article V Project To Restore Liberty - 2 views

articlevprojecttorestoreliberty.com/the-basic-library.html

Heritage-of-freedom freedom-liberty

shared by Gary Edwards on 09 Aug 13 - No Cached
  • Gary Edwards on 09 Aug 13
     
    "Free Google Book Search (360 B.C.) The Republic - Plato (46 B.C.) Cicero's Brutus - Cicero   (1517) Discourses on Livy - Machiavelli (1553) The Discourse of Voluntary Servitude - Étienne de La Boétie (1690) Two Treatises of Government - John Locke   (1698) Discourses Concerning Government - Algernon Sydney Sidney's Discourses and Locke's Second Treatise were recommended by Jefferson and Madison as containing the "general principles of liberty and the rights of man, in nature and society" (1748) The Spirit of Laws  - Montesquieu (1748) The Principles of Natural and Politic Law - Burlamaqui   (1755) Old Family Letters - John Adams (1758) The Law of Nations- Vattel   (1764-1769) The Writings of Samuel Adams (1765-1769) Blackstone's Commentaries on the Laws of England (1766) The Declaratory Act (1770) The Writings of John Adams V1-2              The Writings of John Adams V3-4              The Writings of John Adams V5-7              The Writings of John Adams V8-10   (1771-1788) The Autobiography of Benjamin Franklin (1772) The Votes and Proceedings of the Freeholders and other Inhabitants (1774) A Full Vindication of the Measures of Congress - Hamilton (1774) Novanglus - John Adams Principle Controversy between Great Britain and Her Colonies (1776) Common Sense- Thomas Paine One Incident which gave a stimulus to the pamphlet Common Sense was, that it happened to appear on the very day that the King of England's speech reached the United States, in which the Americans were denounced as rebels and traitors, and in which speech it was asserted to be the right of the legislature of England to bind the Colonies in all cases whatsoever. (1776-1783) The Crisis- Thomas Paine (1780) Journal of the Convention for Framing the Massachusetts Bay Constitution (1785) Remarks concerning the Government and Laws of the United States of America: in Four Letters addressed to Mr. Adams (1787) The Anti-Federalist (audio) (1787) The Federalist
Gary Edwards

'Clinton death list': 33 spine-tingling cases - 0 views

www.wnd.com/...-list-33-most-intriguing-cases

Clinton-Body-Count

shared by Gary Edwards on 05 Feb 17 - No Cached
  • Gary Edwards on 05 Feb 17
     
    "(Editor's note: This list was originally published in August 2016 and has gone viral on the web. WND is running it again as American voters cast their ballots for the nation's next president on Election Day.) How many people do you personally know who have died mysteriously? How about in plane crashes or car wrecks? Bizarre suicides? People beaten to death or murdered in a hail of bullets? And what about violent freak accidents - like separate mountain biking and skiing collisions in Aspen, Colorado? Or barbells crushing a person's throat? Bill and Hillary Clinton attend a funeral Apparently, if you're Bill or Hillary Clinton, the answer to that question is at least 33 - and possibly many more. Talk-radio star Rush Limbaugh addressed the issue of the "Clinton body count" during an August show. "I swear, I could swear I saw these stories back in 1992, back in 1993, 1994," Limbaugh said. He cited a report from Rachel Alexander at Townhall.com titled, "Clinton body count or left-wing conspiracy? Three with ties to DNC mysteriously die." Limbaugh said he recalled Ted Koppel, then-anchor of ABC News' "Nightline," routinely having discussions on the issue following the July 20, 1993, death of White House Deputy Counsel Vince Foster. In fact, Limbaugh said, he appeared on Koppel's show. "One of the things I said was, 'Who knows what happened here? But let me ask you a question.' I said, 'Ted, how many people do you know in your life who've been murdered? Ted, how many people do you know in your life that have died under suspicious circumstances?' "Of course, the answer is zilch, zero, nada, none, very few," Limbaugh chuckled. "Ask the Clintons that question. And it's a significant number. It's a lot of people that they know who have died, who've been murdered. "And the same question here from Rachel Alexander. It's amazing the cycle that exists with the Clintons. [Citing Townhall]: 'What it
Paul Merrell

Secret Law Isn't the Public's Fault | Just Security - 0 views

www.justsecurity.org/...secret-law-isnt-publics-fault

secret-law OLC-opinions disclosures FOIA

shared by Paul Merrell on 13 Nov 15 - No Cached
  • Officials in this administration have a funny way of blaming the victim. Did the CIA spy on Senate intelligence committee staffers who were investigating the agency’s torture program? No. OK, yes, you caught us — but the staffers were poking their nose into the CIA’s business. Are communities in some cities suffering from an uptick in crime rates? That must be because they were critical of police practices, and so the police are afraid to do their job. Are American Muslims disproportionately singled out for law enforcement scrutiny? It wouldn’t be necessary if they did a better job of identifying and rooting out the terrorists in their midst. Did a drone strike kill a 16-year-old boy who wasn’t on any target list but happened to be the son of alleged al-Qaeda operative Anwar al-Aulaqi? I guess he “should have had a more responsible father,” as then-White House press secretary Robert Gibbs helpfully explained. At the annual conference of the American Bar Association’s Standing Committee on National Security Law, officials were at it again. Both the CIA’s General Counsel, Caroline Krass, and the acting head of the Justice Department’s Office of Legal Counsel (OLC), Karl Thompson, observed that agencies are issuing fewer requests for formal OLC opinions and are seeking “informal,” unwritten advice from OLC instead. This trend undermines the public’s ability to obtain OLC opinions through FOIA requests. And, according to Krass, we have no one to blame but ourselves:
  • I do think one reason is a focus the office has gotten [in] the past 10 years or so in the public which has now led to Freedom of Information Act requests pretty much anytime the administration adopts a position in the context of domestic law or national security that could be [or] seems a little bit edgy or slightly controversial, immediately the request for the OLC opinion comes. What were we thinking? Well, we might have had in mind OLC officials’ own acknowledgment that their opinions constitute the working law of the executive branch, and are binding on agencies in the same manner that a court’s decision would be. When the public expresses interest in a controversial court opinion, that isn’t cited as a reason to move the judicial system into the shadows. To the contrary, it’s well-understood that the public has a right to know how judges are interpreting the law. That’s true regardless of whether the law deals with the rights and obligations of private parties or (as is usually the case with OLC opinions) the authorities of the government.  It’s high time we stop pretending that OLC opinions are merely attorneys’ advice, and thereby entitled to confidentiality. A private person is free to accept or reject her attorney’s advice. By contrast, as Thompson recognized, OLC opinions — even informal, unwritten ones — are “binding by custom and practice . … People are supposed to and do follow [them].” Moreover, in ordinary circumstances, it is no defense to criminal charges that the defendant’s lawyer gave bad advice. OLC opinions, on the other hand, confer effective immunity, as the Justice Department will not prosecute any official who acted in reliance on OLC’s conclusions.
  • The government nonetheless argues, and many courts have agreed, that OLC opinions are exempt from disclosure under FOIA because they are “deliberative” and “pre-decisional.” This assessment conflates two distinct decisions: the decision of an agency whether to adopt a course of conduct, and OLC’s decision regarding how to interpret the law. The latter decision may be one factor — along with other, non-legal factors, such as political viability, financial cost, and the existence of competing priorities — in the agency’s “deliberations” on the former. The agency ultimately must decide whether to move forward with a policy. But on the question of how the law should be interpreted, it is OLC, not the agency, which has the final word. If the agency were to issue a different legal interpretation, there is no question that OLC’s would take precedence, and the agency would be courting legal jeopardy by adopting a course of action in tension with OLC’s reading of the law. Perhaps the solution is simply to require the government to abide by its own characterization. If OLC opinions are to be given the status of deliberative documents and/or legal advice, so be it; but in that case, they cannot be binding on any agency or official, nor can they mitigate any official’s criminal or civil liability (unless they genuinely negate a required state of mind). If, on the other hand, the government wishes to treat OLC opinions as authoritative and a shield against prosecution or civil suit, then they must be called what they are — law — and made available to the public. Until that happens, the public will remain a victim of secret law, and there will be no one but the administration to blame.
Paul Merrell

Britain has passed the 'most extreme surveillance law ever passed in a democracy' | ZDNet - 0 views

www.zdnet.com/...-new-spying-powers-becomes-law

surveillance state GCHQ UK snoopers'-charter legislation

shared by Paul Merrell on 20 Nov 16 - No Cached
  • It's 2016 going on 1984. The UK has just passed a massive expansion in surveillance powers, which critics have called "terrifying" and "dangerous".
  • The new law, dubbed the "snoopers' charter", was introduced by then-home secretary Theresa May in 2012, and took two attempts to get passed into law following breakdowns in the previous coalition government. Four years and a general election later -- May is now prime minister -- the bill was finalized and passed on Wednesday by both parliamentary houses. But civil liberties groups have long criticized the bill, with some arguing that the law will let the UK government "document everything we do online". It's no wonder, because it basically does. The law will force internet providers to record every internet customer's top-level web history in real-time for up to a year, which can be accessed by numerous government departments; force companies to decrypt data on demand -- though the government has never been that clear on exactly how it forces foreign firms to do that that; and even disclose any new security features in products before they launch.
  • Not only that, the law also gives the intelligence agencies the power to hack into computers and devices of citizens (known as equipment interference), although some protected professions -- such as journalists and medical staff -- are layered with marginally better protections. In other words, it's the "most extreme surveillance law ever passed in a democracy," according to Jim Killock, director of the Open Rights Group. The bill was opposed by representatives of the United Nations, all major UK and many leading global privacy and rights groups, and a host of Silicon Valley tech companies alike. Even the parliamentary committee tasked with scrutinizing the bill called some of its provisions "vague".
  • ...1 more annotation...
  • And that doesn't even account for the three-quarters of people who think privacy, which this law almost entirely erodes, is a human right. There are some safeguards, however, such as a "double lock" system so that the secretary of state and an independent judicial commissioner must agree on a decision to carry out search warrants (though one member of the House of Lords disputed that claim). A new investigatory powers commissioner will also oversee the use of the powers. Despite the uproar, the government's opposition failed to scrutinize any significant amendments and abstained from the final vote. Killock said recently that the opposition Labour party spent its time "simply failing to hold the government to account". But the government has downplayed much of the controversy surrounding the bill. The government has consistently argued that the bill isn't drastically new, but instead reworks the old and outdated Regulation of Investigatory Powers Act (RIPA). This was brought into law in 2000, to "legitimize" new powers that were conducted or ruled on in secret, like collecting data in bulk and hacking into networks, which was revealed during the Edward Snowden affair. Much of those activities were only possible thanks to litigation by one advocacy group, Privacy International, which helped push these secret practices into the public domain while forcing the government to scramble to explain why these practices were legal. The law will be ratified by royal assent in the coming weeks.
Paul Merrell

France Targeted by NSA Spies and Parliament Passes Surveillance Law - 0 views

firstlook.org/...ng-passes-new-surveillance-law

surveillance state NSA France protest legislation

shared by Paul Merrell on 26 Jun 15 - No Cached
  • On Wednesday, France woke up to find that the National Security Agency had been snooping on the phones of its last three presidents. Top-secret documents provided by WikiLeaks to two media outlets, Mediapart and Libération, showed that the NSA had access to confidential conversations of France’s highest ranking officials, including the country’s current president, François Hollande; the prime minister in 2012, Jean-Marc Ayrault; and former presidents Nicolas Sarkozy and Jacques Chirac. Yet also today, the lower house of France’s legislature, the National Assembly, passed a sweeping surveillance law. The law provides a new framework for the country’s intelligence agencies to expand their surveillance activities. Opponents of the law were quick to mock the government for vigorously protesting being surveilled by one of the country’s closest allies while passing a law that gives its own intelligence services vast powers with what its opponents regard as little oversight. But for those who support the new law, the new revelations of NSA spying showed the urgent need to update the tools available to France’s spies.
  • The response from the French government today was firm but predictable. Senior intelligence officials will travel to the U.S. to meet their counterparts in Washington, while the U.S. ambassador in Paris was summoned to the Elysee Palace. A similar scenario played out in 2013, when Le Monde published Snowden documents that revealed some of the extent of American surveillance in France. Prime Minister Manuel Valls said today that he wants a “code of conduct” to guide the relationship between France and the U.S. on intelligence activities — but the government demanded the exact same thing almost two years ago. When The Intercept published NSA documents in March indicating the Five Eyes — the NSA’s core allies — were intercepting large swaths of internet traffic in France’s Pacific islands, an official protest from France was nowhere to be heard. Even when it appeared that France’s closest ally, Germany, was using its surveillance capabilities to spy, on behalf of the NSA, on France’s foreign affairs ministry and some of the country’s most strategic companies, French authorities remained silent.
  • Until the law was passed, France’s intelligence services operated almost without any laws to regulate them. Although the new law delivers a much-needed framework, its safeguards are regarded by many critics as insufficient. The powers of the oversight body in charge of the intelligence agencies have been slightly strengthened and it will be possible, if a citizen suspects she is being surveilled, to take her case before the Conseil d’Etat, France’s highest court. But other parts of the law have drawn controversy, including the way it defines the purposes the government can invoke to surveil French residents. The categories extend well beyond terrorism. Many opponents of the law think these guidelines are so broad that they could enable political surveillance. But the key point of disagreement is what the government calls “black boxes.” The law allows the use of government equipment inside Internet Service Providers and large web companies to analyze streams of metadata and find “terrorist” patterns and behaviors.
  • ...1 more annotation...
  • The country’s intelligence community got everything it wanted — almost. An amendment that would remove any oversight of surveillance of foreigners, targeting chief executives and foreign spies, had been demanded by France’s top spy, Bernard Bajolet, the director general of external security, during a hearing at the National Assembly a few weeks ago, but the government opposed it and managed to get rid of it before the final vote. Yet, the government added a last minute amendment that tears to pieces the meager whistleblower protection the bill was supposed to set up. The end result is that most of what France’s intelligence services have been doing in the dark is now authorized by law.
Paul Merrell

If the Supreme Court tackles the NSA in 2015, it'll be one of these five cases | Ars Te... - 0 views

arstechnica.com/...tll-be-one-of-these-five-cases

surveillance state NSA pending-litigation

shared by Paul Merrell on 18 Jan 15 - No Cached
  • Roughly a year and a half since the first Snowden disclosures, there's already been a judicial order to shut down the National Security Agency's bulk metadata collection program. The lawsuit filed by Larry Klayman, a veteran conservative activist, would essentially put a stop to unchecked NSA surveillance. And at the start of 2015, he remains the only plaintiff whose case has won when fighting for privacy against the newly understood government monitoring. However, it's currently a victory in name only—the judicial order in Klayman was stayed pending the government’s appeal.
  • Klayman v. Obama is only one of a number of notable national security and surveillance-related civil and criminal cases stemming fully or partially from the Snowden documents. In 2014, a handful of these advanced far enough through the legal system that 2015 is likely to be a big year for privacy policy. One or more could even end up before the Supreme Court. "I think it's impossible to tell which case will be the one that does it, but I believe that, ultimately, the Supreme Court will have to step in and decide the constitutionality of some of the NSA's practices," Mark Rumold, an attorney with the Electronic Frontier Foundation, told Ars. Rumold is one of the attorneys in First Unitarian Church, a case that is challenging government surveillance much like Klayman. Along with that pair, headline watchers should set alerts for cases such as American Civil Liberties Union (ACLU) v. Clapper, United States v. Moalin, and United States v. Muhtorov. Not only are there several other related cases that will likely be influenced by these decisions, but those five cases represent the strongest and most direct legal challenges to the current NSA surveillance state.
  • Before outlining the relevant cases, it's important to note the government's general justification for the legality of bulk metadata collection: the third-party doctrine. This theory was codified most recently from a 1979 Supreme Court decision in Smith v. Maryland. In the case, the court found that individuals do not have an inherent privacy right to data that has already been disclosed to a third party. So with telecom data for instance, the government has posited that because a call from one person to another forcibly transits Verizon’s network, those two parties have already shared that data with Verizon. Therefore, the government argues, such data can't be private, and it’s OK to collect it. But legal experts say that recent surveillance and privacy Supreme Court decisions could lead the courts to reconsider. The first Snowden revelation (published in June 2013) was that Verizon (and presumably other telecom firms) are routinely handing over all call records to the NSA. The metadata records include the date, times, and lengths of the calls.
  • Paul Merrell on 18 Jan 15
     
    Joe Mullins does an excellent job of outlining the major pending cases that challenge NSA surveillance of U.S. citizens and the state of relevant case law.  At least one of those cases is likely to arrive in the Supreme Court during 2015. 
Paul Merrell

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

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

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

shared by Paul Merrell on 01 Dec 15 - No Cached
  • Secret law has been anathema to our democracy since its Founding, but a federal appeals court just gave us more of it.
  • We might forgive the citizenry’s confusion, though, in attempting to square those principles with the decision by the Second Circuit Court of Appeals, published yesterday, holding that the government may continue to keep secret nine legal memoranda by the Justice Department’s Office of Legal Counsel analyzing the legality of targeted killings carried out by the US government. It was just more than a year ago that the same panel of the same court ordered the government to disclose key portions of a July 2010 OLC memorandum that authorized the targeted killing of an American citizen in Yemen. At the time, the court’s opinion seemed to promise at least a partial solution to a problem straight (as the district court in the same case put it) from Alice in Wonderland: that [a] thicket of laws and precedents … effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for its conclusion a secret.
  • Yesterday’s opinion retreats from that promise by keeping much of the government’s law of the targeted killing program secret. (In this and two other cases, the ACLU continues to seek more than 100 other legal memoranda authored by various agencies concerning targeted killing.) It does so in two ways that warrant attention. First, the court suggests that OLC merely gives advice to executive branch agencies, and that OLC’s legal memoranda do not establish the “working law” of the government because agencies might not “adopt” the memoranda’s legal analysis as their own. This argument is legally flawed and, moreover, it flies in the face of the public evidence concerning how the executive branch treats opinions issued by OLC. In an OLC memorandum published, ironically or not, the same day (July 16, 2010) and over the same signature (David Barron’s) as the targeted killing memorandum released at the Second Circuit’s behest last year, the OLC explains that its “central function” is to provide “controlling legal advice to Executive Branch officials.” And not even two weeks ago, the acting head of the OLC told the public that even informally drafted legal advice emanating from his office is “binding by custom and practice in the executive branch,” that “[i]t’s the official view of the office, and that “[p]eople are supposed to and do follow it.”
  • ...2 more annotations...
  • But that’s not what the government told the Second Circuit, and it’s not what the Second Circuit has now suggested is the law. Second, the Second Circuit’s new opinion endorses the continued official secrecy over any discussion of a document that has supplied a purported legal basis for the targeted killing program since almost immediately after the September 11 attacks. The document — a September 17, 2001 “Memorandum of Notification” — is not much of a secret. The government publicly identified it in litigation with the ACLU eight years ago; the Senate Intelligence Committee cited it numerous times in its recent torture report; and the press frequently makes reference to it. Not only that, but the Central Intelligence Agency’s former top lawyer, John Rizzo, freely discussed it in his recent memoir. According to Rizzo, the September 17 MON is “the most comprehensive, most ambitious, most aggressive, and most risky” legal authorization of the last decade and a half — which is saying something. Rizzo explains that the MON authorizes targeted killings of suspected terrorists by the CIA, and in his new book, Power Wars, Charlie Savage reports that the MON is the original source of the controversial (and legally novel) “continuing and imminent threat” standard the government uses to govern the lethal targeting of individuals outside of recognized battlefields. The MON is also likely to have authorized an end run around the assassination “ban” in Executive Order 12333 — a legal maneuver that is discussed in, but almost entirely redacted from, an earlier OLC analysis of targeted killing.
  • In yesterday’s opinion, the Second Circuit upheld the government’s withholding of a 2002 OLC memorandum that “concerns Executive Order 12333,” which almost certainly analyzes the effect of the September 17 MON, as well as of five other memoranda that “discuss another document that remains entitled to protection.” If indeed that “document” is the MON, it would seem to be yet another case of what the DC Circuit pointedly criticized, in a 2013 opinion, as the granting of judicial “imprimatur to a fiction of deniability that no reasonable person would regard as plausible.” In that case, the DC Circuit went on to quote Justice Frankfurter: “‘There comes a point where … Court[s] should not be ignorant as judges of what [they] know as men’ and women.” Last year, the Second Circuit took that admonishment to heart when it published the July 2010 OLC memorandum. Unfortunately, yesterday, rather than once again opening the country’s eyes to the law our government is applying behind closed doors, the Second Circuit closed its own.
clausonlaw22

How Much Does Mental Health Disability Pay In 2023 - 0 views

www.clausonlaw.com/...-health-disability-pay-in-2023

Social Security Disability Lawyers SSD Social Security attorneys

shared by clausonlaw22 on 31 Mar 23 - No Cached
  • clausonlaw22 on 31 Mar 23
     
    How Much Does Mental Health Disability Pay In 2023 Social Security Disability Insurance (SSDI or SSD) is the sole source of income for millions of Americans who are unable to work due to a non-work-related injury or illness. SSDI benefits are available only to workers and former workers with a substantial employment history. Both physical and mental disabilities are covered under the Social Security Act. While SSDI pays the same benefits for qualifying mental impairments as it does for physical impairments, the amount each individual receives in benefits depends on their history of earnings. This blog post will explain how Social Security defines qualifying disabilities, including mental impairments, and determines each individual's benefit payment. At The Clauson Law Firm, we know how important it is for every disability applicant and benefit recipient to understand how their benefits are arrived at, what affects their continued benefits, and how their benefits can change over time. Contact Clauson Law today if you have questions about qualifying for SSDI benefits or need help filing a claim or appealing a denial. We've helped thousands of disabled people across the U.S. with their disability claims. Mental Impairments And Social Security Disability More than 40% of SSD cases in the United States have some mental health or intellectual impairment as a component in the claim. Mental health impairments can result from an almost unlimited array of circumstances, including traumatic stress; depression; genetic predisposition to depression, bipolar disorder, or schizophrenia; or traumatic brain injury (TBI); one of the many forms of dementia; and others. The ways in which mental impairments affect the person suffering can often interfere with their ability to perform work on a regular basis. These are discussed in detail in the section "Common Mental Disabilities that May Qualify for SSDI" below. But first, let's look at how you qualify for SSD benefits and how you
  • clausonlaw22 on 31 Mar 23
     
    How Much Does Mental Health Disability Pay In 2023
Paul Merrell

CURIA - Documents - 0 views

curia.europa.eu/...document.jsf

surveillance state EU Court-of-Justice data-retention data privacy

shared by Paul Merrell on 19 Jul 14 - No Cached
  • 37      It must be stated that the interference caused by Directive 2006/24 with the fundamental rights laid down in Articles 7 and 8 of the Charter is, as the Advocate General has also pointed out, in particular, in paragraphs 77 and 80 of his Opinion, wide-ranging, and it must be considered to be particularly serious. Furthermore, as the Advocate General has pointed out in paragraphs 52 and 72 of his Opinion, the fact that data are retained and subsequently used without the subscriber or registered user being informed is likely to generate in the minds of the persons concerned the feeling that their private lives are the subject of constant surveillance.
  • 43      In this respect, it is apparent from recital 7 in the preamble to Directive 2006/24 that, because of the significant growth in the possibilities afforded by electronic communications, the Justice and Home Affairs Council of 19 December 2002 concluded that data relating to the use of electronic communications are particularly important and therefore a valuable tool in the prevention of offences and the fight against crime, in particular organised crime. 44      It must therefore be held that the retention of data for the purpose of allowing the competent national authorities to have possible access to those data, as required by Directive 2006/24, genuinely satisfies an objective of general interest.45      In those circumstances, it is necessary to verify the proportionality of the interference found to exist.46      In that regard, according to the settled case-law of the Court, the principle of proportionality requires that acts of the EU institutions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not exceed the limits of what is appropriate and necessary in order to achieve those objectives (see, to that effect, Case C‑343/09 Afton Chemical EU:C:2010:419, paragraph 45; Volker und Markus Schecke and Eifert EU:C:2010:662, paragraph 74; Cases C‑581/10 and C‑629/10 Nelson and Others EU:C:2012:657, paragraph 71; Case C‑283/11 Sky Österreich EU:C:2013:28, paragraph 50; and Case C‑101/12 Schaible EU:C:2013:661, paragraph 29).
  • 67      Article 7 of Directive 2006/24, read in conjunction with Article 4(1) of Directive 2002/58 and the second subparagraph of Article 17(1) of Directive 95/46, does not ensure that a particularly high level of protection and security is applied by those providers by means of technical and organisational measures, but permits those providers in particular to have regard to economic considerations when determining the level of security which they apply, as regards the costs of implementing security measures. In particular, Directive 2006/24 does not ensure the irreversible destruction of the data at the end of the data retention period.68      In the second place, it should be added that that directive does not require the data in question to be retained within the European Union, with the result that it cannot be held that the control, explicitly required by Article 8(3) of the Charter, by an independent authority of compliance with the requirements of protection and security, as referred to in the two previous paragraphs, is fully ensured. Such a control, carried out on the basis of EU law, is an essential component of the protection of individuals with regard to the processing of personal data (see, to that effect, Case C‑614/10 Commission v Austria EU:C:2012:631, paragraph 37).69      Having regard to all the foregoing considerations, it must be held that, by adopting Directive 2006/24, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter.
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  • 58      Directive 2006/24 affects, in a comprehensive manner, all persons using electronic communications services, but without the persons whose data are retained being, even indirectly, in a situation which is liable to give rise to criminal prosecutions. It therefore applies even to persons for whom there is no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious crime. Furthermore, it does not provide for any exception, with the result that it applies even to persons whose communications are subject, according to rules of national law, to the obligation of professional secrecy. 59      Moreover, whilst seeking to contribute to the fight against serious crime, Directive 2006/24 does not require any relationship between the data whose retention is provided for and a threat to public security and, in particular, it is not restricted to a retention in relation (i) to data pertaining to a particular time period and/or a particular geographical zone and/or to a circle of particular persons likely to be involved, in one way or another, in a serious crime, or (ii) to persons who could, for other reasons, contribute, by the retention of their data, to the prevention, detection or prosecution of serious offences.
  • 1        These requests for a preliminary ruling concern the validity of Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54).
  • Digital Rights Ireland Ltd (C‑293/12)vMinister for Communications, Marine and Natural Resources,Minister for Justice, Equality and Law Reform,Commissioner of the Garda Síochána,Ireland,The Attorney General,intervener:Irish Human Rights Commission, andKärntner Landesregierung (C‑594/12),Michael Seitlinger,Christof Tschohl and others,
  • JUDGMENT OF THE COURT (Grand Chamber)8 April 2014 (*)(Electronic communications — Directive 2006/24/EC — Publicly available electronic communications services or public communications networks services — Retention of data generated or processed in connection with the provision of such services — Validity — Articles 7, 8 and 11 of the Charter of Fundamental Rights of the European Union)In Joined Cases C‑293/12 and C‑594/12,
  • 34      As a result, the obligation imposed by Articles 3 and 6 of Directive 2006/24 on providers of publicly available electronic communications services or of public communications networks to retain, for a certain period, data relating to a person’s private life and to his communications, such as those referred to in Article 5 of the directive, constitutes in itself an interference with the rights guaranteed by Article 7 of the Charter. 35      Furthermore, the access of the competent national authorities to the data constitutes a further interference with that fundamental right (see, as regards Article 8 of the ECHR, Eur. Court H.R., Leander v. Sweden, 26 March 1987, § 48, Series A no 116; Rotaru v. Romania [GC], no. 28341/95, § 46, ECHR 2000-V; and Weber and Saravia v. Germany (dec.), no. 54934/00, § 79, ECHR 2006-XI). Accordingly, Articles 4 and 8 of Directive 2006/24 laying down rules relating to the access of the competent national authorities to the data also constitute an interference with the rights guaranteed by Article 7 of the Charter. 36      Likewise, Directive 2006/24 constitutes an interference with the fundamental right to the protection of personal data guaranteed by Article 8 of the Charter because it provides for the processing of personal data.
  • 65      It follows from the above that Directive 2006/24 does not lay down clear and precise rules governing the extent of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. It must therefore be held that Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary.66      Moreover, as far as concerns the rules relating to the security and protection of data retained by providers of publicly available electronic communications services or of public communications networks, it must be held that Directive 2006/24 does not provide for sufficient safeguards, as required by Article 8 of the Charter, to ensure effective protection of the data retained against the risk of abuse and against any unlawful access and use of that data. In the first place, Article 7 of Directive 2006/24 does not lay down rules which are specific and adapted to (i) the vast quantity of data whose retention is required by that directive, (ii) the sensitive nature of that data and (iii) the risk of unlawful access to that data, rules which would serve, in particular, to govern the protection and security of the data in question in a clear and strict manner in order to ensure their full integrity and confidentiality. Furthermore, a specific obligation on Member States to establish such rules has also not been laid down.
  • 60      Secondly, not only is there a general absence of limits in Directive 2006/24 but Directive 2006/24 also fails to lay down any objective criterion by which to determine the limits of the access of the competent national authorities to the data and their subsequent use for the purposes of prevention, detection or criminal prosecutions concerning offences that, in view of the extent and seriousness of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter, may be considered to be sufficiently serious to justify such an interference. On the contrary, Directive 2006/24 simply refers, in Article 1(1), in a general manner to serious crime, as defined by each Member State in its national law.61      Furthermore, Directive 2006/24 does not contain substantive and procedural conditions relating to the access of the competent national authorities to the data and to their subsequent use. Article 4 of the directive, which governs the access of those authorities to the data retained, does not expressly provide that that access and the subsequent use of the data in question must be strictly restricted to the purpose of preventing and detecting precisely defined serious offences or of conducting criminal prosecutions relating thereto; it merely provides that each Member State is to define the procedures to be followed and the conditions to be fulfilled in order to gain access to the retained data in accordance with necessity and proportionality requirements.
  • 55      The need for such safeguards is all the greater where, as laid down in Directive 2006/24, personal data are subjected to automatic processing and where there is a significant risk of unlawful access to those data (see, by analogy, as regards Article 8 of the ECHR, S. and Marper v. the United Kingdom, § 103, and M. K. v. France, 18 April 2013, no. 19522/09, § 35).56      As for the question of whether the interference caused by Directive 2006/24 is limited to what is strictly necessary, it should be observed that, in accordance with Article 3 read in conjunction with Article 5(1) of that directive, the directive requires the retention of all traffic data concerning fixed telephony, mobile telephony, Internet access, Internet e-mail and Internet telephony. It therefore applies to all means of electronic communication, the use of which is very widespread and of growing importance in people’s everyday lives. Furthermore, in accordance with Article 3 of Directive 2006/24, the directive covers all subscribers and registered users. It therefore entails an interference with the fundamental rights of practically the entire European population. 57      In this respect, it must be noted, first, that Directive 2006/24 covers, in a generalised manner, all persons and all means of electronic communication as well as all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime.
  • 62      In particular, Directive 2006/24 does not lay down any objective criterion by which the number of persons authorised to access and subsequently use the data retained is limited to what is strictly necessary in the light of the objective pursued. Above all, the access by the competent national authorities to the data retained is not made dependent on a prior review carried out by a court or by an independent administrative body whose decision seeks to limit access to the data and their use to what is strictly necessary for the purpose of attaining the objective pursued and which intervenes following a reasoned request of those authorities submitted within the framework of procedures of prevention, detection or criminal prosecutions. Nor does it lay down a specific obligation on Member States designed to establish such limits. 63      Thirdly, so far as concerns the data retention period, Article 6 of Directive 2006/24 requires that those data be retained for a period of at least six months, without any distinction being made between the categories of data set out in Article 5 of that directive on the basis of their possible usefulness for the purposes of the objective pursued or according to the persons concerned.64      Furthermore, that period is set at between a minimum of 6 months and a maximum of 24 months, but it is not stated that the determination of the period of retention must be based on objective criteria in order to ensure that it is limited to what is strictly necessary.
  • 52      So far as concerns the right to respect for private life, the protection of that fundamental right requires, according to the Court’s settled case-law, in any event, that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary (Case C‑473/12 IPI EU:C:2013:715, paragraph 39 and the case-law cited).53      In that regard, it should be noted that the protection of personal data resulting from the explicit obligation laid down in Article 8(1) of the Charter is especially important for the right to respect for private life enshrined in Article 7 of the Charter.54      Consequently, the EU legislation in question must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards so that the persons whose data have been retained have sufficient guarantees to effectively protect their personal data against the risk of abuse and against any unlawful access and use of that data (see, by analogy, as regards Article 8 of the ECHR, Eur. Court H.R., Liberty and Others v. the United Kingdom, 1 July 2008, no. 58243/00, § 62 and 63; Rotaru v. Romania, § 57 to 59, and S. and Marper v. the United Kingdom, § 99).
  • 26      In that regard, it should be observed that the data which providers of publicly available electronic communications services or of public communications networks must retain, pursuant to Articles 3 and 5 of Directive 2006/24, include data necessary to trace and identify the source of a communication and its destination, to identify the date, time, duration and type of a communication, to identify users’ communication equipment, and to identify the location of mobile communication equipment, data which consist, inter alia, of the name and address of the subscriber or registered user, the calling telephone number, the number called and an IP address for Internet services. Those data make it possible, in particular, to know the identity of the person with whom a subscriber or registered user has communicated and by what means, and to identify the time of the communication as well as the place from which that communication took place. They also make it possible to know the frequency of the communications of the subscriber or registered user with certain persons during a given period. 27      Those data, taken as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them.
  • 32      By requiring the retention of the data listed in Article 5(1) of Directive 2006/24 and by allowing the competent national authorities to access those data, Directive 2006/24, as the Advocate General has pointed out, in particular, in paragraphs 39 and 40 of his Opinion, derogates from the system of protection of the right to privacy established by Directives 95/46 and 2002/58 with regard to the processing of personal data in the electronic communications sector, directives which provided for the confidentiality of communications and of traffic data as well as the obligation to erase or make those data anonymous where they are no longer needed for the purpose of the transmission of a communication, unless they are necessary for billing purposes and only for as long as so necessary.
  • On those grounds, the Court (Grand Chamber) hereby rules:Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC is invalid.
  • Paul Merrell on 19 Jul 14
     
    EU Court of Justice decision in regard to a Directive that required communications data retention by telcos/ISPs, finding the Directive invalid as a violation of the right of privacy in communications. Fairly read, paragraph 59 outlaws bulk collection of such records, i.e., it requires the equivalent of a judge-issued search warrant in the U.S. based on probable cause to believe that the particular individual's communications are a legitimate object of a search.  Note also that paragraph 67 effectively forbids transfer of any retained data outside the E.U. So a barrier for NSA sharing of data with GCHQ derived from communications NSA collects from EU communications traffic. Bye-bye, Big Data for GCHQ in the E.U. 
Paul Merrell

US sets new record for denying federal files under Freedom of Information Act | US news... - 0 views

www.theguardian.com/...es-freedom-of-information-foia

transparency FOIA U.S. records

shared by Paul Merrell on 20 Mar 15 - No Cached
  • The US has set a new record for denying and censoring federal files under the Freedom of Information Act, analysis by the Associated Press reveals. For the second consecutive year, the Obama administration more often than ever censored government files or outright denied access to them under the open-government legislation. The government took longer to turn over files when it provided any, said more regularly that it couldn’t find documents, and refused a record number of times to turn over files quickly that might be especially newsworthy.
  • It also acknowledged in nearly one in three cases that its initial decisions to withhold or censor records were improper under the law – but only when it was challenged. Its backlog of unanswered requests at year’s end grew remarkably by 55% to more than 200,000. The government’s new figures, published Tuesday, covered all requests to 100 federal agencies during fiscal 2014 under the Freedom of Information law, which is heralded globally as a model for transparent government. They showed that despite disappointments and failed promises by the White House to make meaningful improvements in the way it releases records, the law was more popular than ever. Citizens, journalists, businesses and others made a record 714,231 requests for information. The US spent a record $434m trying to keep up.
  • The government responded to 647,142 requests, a 4% decrease over the previous year. The government more than ever censored materials it turned over or fully denied access to them, in 250,581 cases or 39% of all requests. Sometimes, the government censored only a few words or an employee’s phone number, but other times it completely marked out nearly every paragraph on pages. On 215,584 other occasions, the government said it couldn’t find records, a person refused to pay for copies or the government determined the request to be unreasonable or improper. The White House touted its success under its own analysis. It routinely excludes from its assessment instances when it couldn’t find records, a person refused to pay for copies or the request was determined to be improper under the law, and said under this calculation it released all or parts of records in 91% of requests – still a record low since Barack Obama took office using the White House’s own math.
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  • “We actually do have a lot to brag about,” White House spokesman Josh Earnest said. The government’s responsiveness under the open records law is an important measure of its transparency. Under the law, citizens and foreigners can compel the government to turn over copies of federal records for zero or little cost. Anyone who seeks information through the law is generally supposed to get it unless disclosure would hurt national security, violate personal privacy or expose business secrets or confidential decision-making in certain areas. It cited such exceptions a record 554,969 times last year. Under the president’s instructions, the US should not withhold or censor government files merely because they might be embarrassing, but federal employees last year regularly misapplied the law. In emails that AP obtained from the National Archives and Records Administration about who pays for Michelle Obama’s expensive dresses, the agency blacked-out a sentence under part of the law intended to shield personal, private information, such as Social Security numbers, phone numbers or home addresses. But it failed to censor the same passage on a subsequent page.
  • The sentence: “We live in constant fear of upsetting the WH [White House].” In nearly one in three cases, when someone challenged under appeal the administration’s initial decision to censor or withhold files, the government reconsidered and acknowledged it was at least partly wrong. That was the highest reversal rate in at least five years. The AP’s chief executive, Gary Pruitt, said the news organization filed hundreds of requests for government files. Records the AP obtained revealed police efforts to restrict airspace to keep away news helicopters during violent street protests in Ferguson, Missouri. In another case, the records showed Veterans Affairs doctors concluding that a gunman who later killed 12 people had no mental health issues despite serious problems and encounters with police during the same period. They also showed the FBI pressuring local police agencies to keep details secret about a telephone surveillance device called Stingray.
  • “What we discovered reaffirmed what we have seen all too frequently in recent years,” Pruitt wrote in a column published this week. “The systems created to give citizens information about their government are badly broken and getting worse all the time.” The US released its new figures during Sunshine Week, when news organizations promote open government and freedom of information. The AP earlier this month sued the State Department under the law to force the release of email correspondence and government documents from Hillary Clinton’s tenure as secretary of state. The government had failed to turn over the files under repeated requests, including one made five years ago and others pending since the summer of 2013.
  • The government said the average time it took to answer each records request ranged from one day to more than 2.5 years. More than half of federal agencies took longer to answer requests last year than the previous year. Journalists and others who need information quickly to report breaking news fared worse than ever. Under the law, the US is required to move urgent requests from journalists to the front of the line for a speedy answer if records will inform the public concerning an actual or alleged government activity. But the government now routinely denies such requests: Over six years, the number of requests granted speedy processing status fell from nearly half to fewer than one in eight. The CIA, at the center of so many headlines, has denied every such request over the last two years.
  • Paul Merrell on 20 Mar 15
     
    I did a fair bit of FOIA litigation during my years as a citizen activist and later as a lawyer. The response situation never was good and it's gotten far worse. I have an outstanding FOIA request to the Dept. of Health & Human Services for copies of particular documents submitted as public comments by other agencies including the CIA in a rulemaking proceeding. I submitted electronically over a year ago, got an authresponder telling me to expect a postcard acknowledging receipt within ten working days as required by FOIA. Didn't hear back from them, so resubmitted with copies of the original request and the autoresponse and got the same autoresponse. Still haven't got either of my postcards or the records, so it looks like I'm about to come out of retirement and file a FOIA lawsuit. It's an area where the squeakiest wheel gets the grease.  The bureaucracy does not like public records requests.   
Paul Merrell

Court Rules Feds Need Warrant to Access Drug Prescriptions Database | American Civil Li... - 0 views

www.aclu.org/...-feds-need-warrant-access-drug

surveillance state DEA prescriptions patient-records 4th Amendment warrant

shared by Paul Merrell on 14 Feb 14 - No Cached
  • In a significant win for the privacy rights of anyone who has ever gotten a drug prescription, a federal judge in Oregon ruled yesterday that the DEA needs a warrant to search confidential prescription records. Oregon, like 48 other states, has a Prescription Drug Monitoring Program (PDMP), which tracks patients’ prescriptions for medications used to treat a long list of sensitive medical conditions. Although Oregon law requires police to get a warrant from a judge before searching prescription records in the database, the DEA has been requesting records using administrative subpoenas, which do not involve judicial authorization or probable cause. After the State of Oregon sued the DEA over this practice, the ACLU and ACLU of Oregon joined the suit on behalf of four patients and a doctor in the state. Last month, we argued in court that the DEA is violating the Fourth Amendment by bypassing the Constitution’s warrant requirement when seeking private prescription records. Yesterday, the court agreed. The court’s ruling is the first time a judge has held that law enforcement must get a probable cause warrant to access confidential prescription records from a state database in a criminal investigation. The opinion is significant for several reasons.
  • First, the court soundly rejected the DEA’s extreme argument that people lose their Fourth Amendment privacy rights in their medical information when they engage in confidential discussions with their doctor and pharmacist about their illnesses and treatment decisions. The federal government had argued that the “third party doctrine” applied, comparing confidential prescription records to electricity consumption records, bank records, and other categories of information held by third-party companies, for which courts have said police don’t need a warrant. The judge batted this argument aside, explaining that prescription records are “more inherently personal or private than bank records, and are entitled to and treated with a heightened expectation of privacy.” As the court held: “Although there is not an absolute right to privacy in prescription information, as patients must expect that physicians, pharmacists, and other medical personnel can and must access their records, it is more than reasonable for patients to believe that law enforcement agencies will not have unfettered access to their records.” More importantly, this ruling fits into a series of recent opinions calling into question the continuing vitality of the third party doctrine in modern society. As Justice Sotomayor wrote in United States v. Jonestwo years ago, “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” This sentiment was echoed by the federal judge who ruled last year that the NSA’s bulk telephone metadata program violates the Fourth Amendment. The Oregon case is another blow to the third party doctrine’s shaky foundation.
  • In addition, although yesterday’s ruling is only binding within Oregon, it will be persuasive precedent for courts evaluating law enforcement’s use of subpoenas to obtain private prescription records—and similar information—around the country. The case is a reminder to the DEA and other law enforcement agencies that they are not above the law, and that they must comply with the Fourth Amendment’s warrant requirement when seeking sensitive information in criminal investigations. Finally, the case should add momentum to a movement within state legislatures to amend PDMP statutes to require police to get a warrant for prescription records. Ten states currently require a warrant as a matter of state law (Rhode Island was the most recent state to add this requirement, last year). The Pennsylvania House has passed legislation creating a warrant requirement for that state’s PDMP, and is waiting for the state senate to act. The Florida legislature may update the privacy protections for its PDMP this year. Action by state legislatures will send a strong message to the DEA that it should be getting warrants everywhere, not just in Oregon.
  • Paul Merrell on 14 Feb 14
     
    A case to watch as it wends it way through the appellate process. A very big win for the ACLU, with major implications for federal intelligence gathering in general. 
Gary Edwards

The Empire Takes a Hit: NSA Update - 2 views

........................................................................................ NSA Conversation with retired lawyer and Open Source legal expert, "Marbux". ...........................

Federal-Reserve-Bankster-Cartel NSA

started by Gary Edwards on 15 Jun 13 no follow-up yet
Gary Edwards

The Ultimate Net Monitoring Tool: NARUS - 0 views

www.wired.com/...70914

NSA Domestic-Spying NARUS

shared by Gary Edwards on 06 Jun 13 - Cached
  • Gary Edwards on 06 Jun 13
     
    Chilling stuff.  Note that Mark Klien is an important whistleblower whose testimony has helped expose the  Federal Government - NSA domestic dragnet that has violated the constitutional rights of hundreds of thousands of law abiding American citizens.  The question I have concerns cooperation between NSA NARUS spying and the IRS. We know that the IRS used key words such as "TEA PARTY", "PATRIOT", "Constitution", and "Tenth Amendment" to target American citizens.  Does the NSA NARUS target Americans in the same way?  Are there political enemy lists with background surveillance information now circulating through different government agencies based on this targeted and illegal spying? The first thing we need to do is protect whistle blowers who are risking it all to protect the constitutional rights of American citizens and save our country.   "The equipment that technician Mark Klein learned was installed in the National Security Agency's "secret room" inside AT&T's San Francisco switching office isn't some sinister Big Brother box designed solely to help governments eavesdrop on citizens' internet communications. Rather, it's a powerful commercial network-analysis product with all sorts of valuable uses for network operators. It just happens to be capable of doing things that make it one of the best internet spy tools around. "Anything that comes through (an internet protocol network), we can record," says Steve Bannerman, marketing vice president of Narus, a Mountain View, California, company. "We can reconstruct all of their e-mails along with attachments, see what web pages they clicked on, we can reconstruct their (voice over internet protocol) calls."" Narus' product, the Semantic Traffic Analyzer, is a software application that runs on standard IBM or Dell servers using the Linux operating system. It's renowned within certain circles for its ability to inspect traffic in real time on high-bandwidth pipes, identifying packets of interest as they r
Gary Edwards

Harry Binswanger - Market Justice & The Second Amendment - Forbes - 0 views

blogs.forbes.com/harrybinswanger

Harry-Binswanger Ayn-Rand-Libertarian Principles-and-Specifics 2012-elections

shared by Gary Edwards on 04 Jan 13 - No Cached
  • Gary Edwards on 04 Jan 13
     
    One of the best arguments for protecting individual liberty through the Constitution and Bill of Rights; including the 2nd Amendment. excerpt: Junking the collectivist approach, ridding myself of the idea that the lives of the few can be sacrificed to the lives of the many, I found the issue almost settled itself. Taking the individualist approach, I asked myself: what laws should the individual be subject to? What is the principle governing the individual's relation to the state? The principle is "individual rights"-your rights and mine. Rights define the proper limits of state action. They recognize the areas within which the individual is sovereign, entitled to act on his own judgment, free from interference by his fellow man and by the state. The fundamental right is the right to life. Its expressions are the right to liberty, property, and the pursuit of happiness. As the Declaration states, government is established "to secure these rights." To secure them against what? There is only one thing that can deprive a man of his life, liberty, or property: physical force. Only guns, clubs, chains, jails, or some form of nonconsensual physical contact can kill you, injure you, or negate your ability to act on your own judgment. The proper job of government is to protect the individual's rights by wielding retaliatory force against the force initiated by criminals or foreign aggressors. The issue with guns is the threat of force. But the threat of force is force. Orders issued at gunpoint are as coercive-as rights-violating-as laying on hands and overpowering you. (All this is explained in more detail in Ayn Rand's articles "Man's Rights" and "The Nature of Government.") The government may use force only against an objective threat of force. Only that constitutes retaliation. In particular, the government may not descend to the evil of preventive law. The government cannot treat men as guilty until they have proven th
Paul Merrell

Data Pirates of the Caribbean: The NSA Is Recording Every Cell Phone Call in the Bahama... - 0 views

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surveillance state NSA DEA cell-phone-dragnet-recording

shared by Paul Merrell on 20 May 14 - No Cached
  • The National Security Agency is secretly intercepting, recording, and archiving the audio of virtually every cell phone conversation on the island nation of the Bahamas. According to documents provided by NSA whistleblower Edward Snowden, the surveillance is part of a top-secret system – code-named SOMALGET – that was implemented without the knowledge or consent of the Bahamian government. Instead, the agency appears to have used access legally obtained in cooperation with the U.S. Drug Enforcement Administration to open a backdoor to the country’s cellular telephone network, enabling it to covertly record and store the “full-take audio” of every mobile call made to, from and within the Bahamas – and to replay those calls for up to a month. SOMALGET is part of a broader NSA program called MYSTIC, which The Intercept has learned is being used to secretly monitor the telecommunications systems of the Bahamas and several other countries, including Mexico, the Philippines, and Kenya. But while MYSTIC scrapes mobile networks for so-called “metadata” – information that reveals the time, source, and destination of calls – SOMALGET is a cutting-edge tool that enables the NSA to vacuum up and store the actual content of every conversation in an entire country.
  • All told, the NSA is using MYSTIC to gather personal data on mobile calls placed in countries with a combined population of more than 250 million people. And according to classified documents, the agency is seeking funding to export the sweeping surveillance capability elsewhere. The program raises profound questions about the nature and extent of American surveillance abroad. The U.S. intelligence community routinely justifies its massive spying efforts by citing the threats to national security posed by global terrorism and unpredictable rival nations like Russia and Iran. But the NSA documents indicate that SOMALGET has been deployed in the Bahamas to locate “international narcotics traffickers and special-interest alien smugglers” – traditional law-enforcement concerns, but a far cry from derailing terror plots or intercepting weapons of mass destruction.
  • By targeting the Bahamas’ entire mobile network, the NSA is intentionally collecting and retaining intelligence on millions of people who have not been accused of any crime or terrorist activity. Nearly five million Americans visit the country each year, and many prominent U.S. citizens keep homes there, including Sen. Tom Harkin (D-Iowa), Bill Gates, and Oprah Winfrey.
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  • The Intercept has confirmed that as of 2013, the NSA was actively using MYSTIC to gather cell-phone metadata in five countries, and was intercepting voice data in two of them. Documents show that the NSA has been generating intelligence reports from MYSTIC surveillance in the Bahamas, Mexico, Kenya, the Philippines, and one other country, which The Intercept is not naming in response to specific, credible concerns that doing so could lead to increased violence. The more expansive full-take recording capability has been deployed in both the Bahamas and the unnamed country. MYSTIC was established in 2009 by the NSA’s Special Source Operations division, which works with corporate partners to conduct surveillance. Documents in the Snowden archive describe it as a “program for embedded collection systems overtly installed on target networks, predominantly for the collection and processing of wireless/mobile communications networks.”
  • If an entire nation’s cell-phone calls were a menu of TV shows, MYSTIC would be a cable programming guide showing which channels offer which shows, and when. SOMALGET would be the DVR that automatically records every show on every channel and stores them for a month. MYSTIC provides the access; SOMALGET provides the massive amounts of storage needed to archive all those calls so that analysts can listen to them at will after the fact. According to one NSA document, SOMALGET is “deployed against entire networks” in the Bahamas and the second country, and processes “over 100 million call events per day.”
  • When U.S. drug agents need to tap a phone of a suspected drug kingpin in another country, they call up their counterparts and ask them set up an intercept. To facilitate those taps, many nations – including the Bahamas – have hired contractors who install and maintain so-called lawful intercept equipment on their telecommunications. With SOMALGET, it appears that the NSA has used the access those contractors developed to secretly mine the country’s entire phone system for “signals intelligence” –recording every mobile call in the country. “Host countries,” the document notes, “are not aware of NSA’s SIGINT collection.” “Lawful intercept systems engineer communications vulnerabilities into networks, forcing the carriers to weaken,” says Christopher Soghoian, the principal technologist for the American Civil Liberties Union. “Host governments really should be thinking twice before they accept one of these Trojan horses.”
  • The DEA has long been in a unique position to help the NSA gain backdoor access to foreign phone networks. “DEA has close relationships with foreign government counterparts and vetted foreign partners,” the manager of the NSA’s drug-war efforts reported in a 2004 memo. Indeed, with more than 80 international offices, the DEA is one of the most widely deployed U.S. agencies around the globe. But what many foreign governments fail to realize is that U.S. drug agents don’t confine themselves to simply fighting narcotics traffickers. “DEA is actually one of the biggest spy operations there is,” says Finn Selander, a former DEA special agent who works with the drug-reform advocacy group Law Enforcement Against Prohibition. “Our mandate is not just drugs. We collect intelligence.” What’s more, Selander adds, the NSA has aided the DEA for years on surveillance operations. “On our reports, there’s drug information and then there’s non-drug information,” he says. “So countries let us in because they don’t view us, really, as a spy organization.”
  • “I seriously don’t think that would be your run-of-the-mill legal interception equipment,” says the former engineer, who worked with hardware and software that typically maxed out at 1,000 intercepts. The NSA, by contrast, is recording and storing tens of millions of calls – “mass surveillance,” he observes, that goes far beyond the standard practices for lawful interception recognized around the world. The Bahamas Telecommunications Company did not respond to repeated phone calls and emails.
  • The proliferation of private contractors has apparently provided the NSA with direct access to foreign phone networks. According to the documents, MYSTIC draws its data from “collection systems” that were overtly installed on the telecommunications systems of targeted countries, apparently by corporate “partners” cooperating with the NSA. One NSA document spells out that “the overt purpose” given for accessing foreign telecommunications systems is “for legitimate commercial service for the Telco’s themselves.” But the same document adds: “Our covert mission is the provision of SIGINT,” or signals intelligence.
  • According to the NSA documents, MYSTIC targets calls and other data transmitted on  Global System for Mobile Communications networks – the primary framework used for cell phone calls worldwide. In the Philippines, MYSTIC collects “GSM, Short Message Service (SMS) and Call Detail Records” via access provided by a “DSD asset in a Philippine provider site.” (The DSD refers to the Defence Signals Directorate, an arm of Australian intelligence. The Australian consulate in New York declined to comment.) The operation in Kenya is “sponsored” by the CIA, according to the documents, and collects “GSM metadata with the potential for content at a later date.” The Mexican operation is likewise sponsored by the CIA. The documents don’t say how or under what pretenses the agency is gathering call data in those countries. In the Bahamas, the documents say, the NSA intercepts GSM data that is transmitted over what is known as the “A link”–or “A interface”–a core component of many mobile networks. The A link transfers data between two crucial parts of GSM networks – the base station subsystem, where phones in the field communicate with cell towers, and the network subsystem, which routes calls and text messages to the appropriate destination. “It’s where all of the telephone traffic goes,” says the former engineer.
  • When U.S. drug agents wiretap a country’s phone networks, they must comply with the host country’s laws and work alongside their law enforcement counterparts. “The way DEA works with our allies – it could be Bahamas or Jamaica or anywhere – the host country has to invite us,” says Margolis. “We come in and provide the support, but they do the intercept themselves.” The Bahamas’ Listening Devices Act requires all wiretaps to be authorized in writing either by the minister of national security or the police commissioner in consultation with the attorney general. The individuals to be targeted must be named. Under the nation’s Data Protection Act, personal data may only be “collected by means which are both lawful and fair in the circumstances of the case.” The office of the Bahamian data protection commissioner, which administers the act, said in a statement that it “was not aware of the matter you raise.” Countries like the Bahamas don’t install lawful intercepts on their own. With the adoption of international standards, a thriving market has emerged for private firms that are contracted by foreign governments to install and maintain lawful intercept equipment. Currently valued at more than $128 million, the global market for private interception services is expected to skyrocket to more than $970 million within the next four years, according to a 2013 report from the research firm Markets and Markets.
  • If the U.S. government wanted to make a case for surveillance in the Bahamas, it could point to the country’s status as a leading haven for tax cheats, corporate shell games, and a wide array of black-market traffickers. The State Department considers the Bahamas both a “major drug-transit country” and a “major money laundering country” (a designation it shares with more than 60 other nations, including the U.S.). According to the International Monetary Fund, as of 2011 the Bahamas was home to 271 banks and trust companies with active licenses. At the time, the Bahamian banks held $595 billion in U.S. assets. But the NSA documents don’t reflect a concerted focus on the money launderers and powerful financial institutions – including numerous Western banks – that underpin the black market for narcotics in the Bahamas. Instead, an internal NSA presentation from 2013 recounts with pride how analysts used SOMALGET to locate an individual who “arranged Mexico-to-United States marijuana shipments” through the U.S. Postal Service.
  • The presentation doesn’t say whether the NSA shared the information with the DEA. But the drug agency’s Special Operations Divison has come under fire for improperly using classified information obtained by the NSA to launch criminal investigations – and then creating false narratives to mislead courts about how the investigations began. The tactic – known as parallel construction – was first reported by Reuters last year, and is now under investigation by the Justice Department’s inspector general. So: Beyond a desire to bust island pot dealers, why would the NSA choose to apply a powerful collection tool such as SOMALGET against the Bahamas, which poses virtually no threat to the United States? The answer may lie in a document that characterizes the Bahamas operation as a “test bed for system deployments, capabilities, and improvements” to SOMALGET. The country’s small population – fewer than 400,000 residents – provides a manageable sample to try out the surveillance system’s features. Since SOMALGET is also operational in one other country, the Bahamas may be used as a sort of guinea pig to beta-test improvements and alterations without impacting the system’s operations elsewhere. “From an engineering point of view it makes perfect sense,” says the former engineer. “Absolutely.”
  • SOMALGET operates under Executive Order 12333, a Reagan-era rule establishing wide latitude for the NSA and other intelligence agencies to spy on other countries, as long as the attorney general is convinced the efforts are aimed at gathering foreign intelligence. In 2000, the NSA assured Congress that all electronic surveillance performed under 12333 “must be conducted in a manner that minimizes the acquisition, retention, and dissemination of information about unconsenting U.S. persons.” In reality, many legal experts point out, the lack of judicial oversight or criminal penalties for violating the order render the guidelines meaningless. “I think it would be open, whether it was legal or not,” says German, the former FBI agent. “Because we don’t have all the facts about how they’re doing it. For a long time, the NSA has been interpreting their authority in the broadest possible way, even beyond what an objective observer would say was reasonable.” “An American citizen has Fourth Amendment rights wherever they are,” adds Kurt Opsahl, an attorney with the Electronic Frontier Foundation. “Nevertheless, there have certainly been a number of things published over the last year which suggest that there are broad, sweeping programs that the NSA and other government agencies are doing abroad that sweep up the communications of Americans.”
  • Legal or not, the NSA’s covert surveillance of an entire nation suggests that it will take more than the president’s tepid “limits” to rein in the ambitions of the intelligence community. “It’s almost like they have this mentality – if we can, we will,” says German. “There’s no analysis of the long-term risks of doing it, no analysis of whether it’s actually worth the effort, no analysis of whether we couldn’t take those resources and actually put them on real threats and do more good.” It’s not surprising, German adds, that the government’s covert program in the Bahamas didn’t remain covert. “The undermining of international law and international cooperation is such a long-term negative result of these programs that they had to know would eventually be exposed, whether through a leak, whether through a spy, whether through an accident,” he says. “Nothing stays secret forever. It really shows the arrogance of these agencies – they were just going to do what they were going to do, and they weren’t really going to consider any other important aspects of how our long-term security needs to be addressed.”
  • Paul Merrell on 20 May 14
     
    Words fail me.
Paul Merrell

NSA Data Will Soon Be Used By Domestic Law Enforcement - 0 views

www.mintpressnews.com/...214734

surveillance state NSA raw-data-sharing

shared by Paul Merrell on 24 Mar 16 - No Cached
  • If you’re reading this, then I’m willing to bet that you’ve been called many different names throughout your life. If I were to hazard a guess, I would say they were names like kook, paranoid, conspiracy theorist, alarmist, insane, or gullible. And after this week, you can go by a new name: Vindicated. I’m of course talking about recent revelations from the NSA. Long before Edward Snowden came along, it was no secret that the NSA was spying on everyone without good cause. Anyone who believed that fact was called a conspiracy theorist, but their fears were eventually validated. These same people also understood that the NSA’s surveillance powers would never be used exclusively against terrorists and hostile governments. The power they have is just too tempting for any government. If various government agencies weren’t using the NSA’s surveillance apparatus to solve domestic crimes, it was only a matter of time before it was used for just that.
  • And again, they called us conspiracy theorists for believing that. And again, we were right all long. A while back, we noted a report showing that the “sneak-and-peek” provision of the Patriot Act that was alleged to be used only in national security and terrorism investigations has overwhelmingly been used in narcotics cases. Now the New York Times reports that National Security Agency data will be shared with other intelligence agencies like the FBI without first applying any screens for privacy. The ACLU of Massachusetts blog Privacy SOS explains why this is important: What does this rule change mean for you? In short, domestic law enforcement officials now have access to huge troves of American communications, obtained without warrants, that they can use to put people in cages. FBI agents don’t need to have any “national security” related reason to plug your name, email address, phone number, or other “selector” into the NSA’s gargantuan data trove. They can simply poke around in your private information in the course of totally routine investigations. And if they find something that suggests, say, involvement in illegal drug activity, they can send that information to local or state police. That means information the NSA collects for purposes of so-called “national security” will be used by police to lock up ordinary Americans for routine crimes.
  • Anybody who knows anything about how governments work, should not surprised. You can’t give them any kind of power, and expect them to use it responsibly. You can’t give them any stipulations. Eventually they’ll find a legal loophole to work around any limitations that have been placed on them. In other news, the Pentagon admitted this week that they’ve been deploying military drones over the United States for domestic surveillance purposes. Much like the NSA’s surveillance apparatus, we were assured that drones were for terrorists in faraway lands. Nothing so Orwellian would ever be used against ordinary American citizens at home. Yet here we are, with more to come.
  • Paul Merrell on 24 Mar 16
     
    The Privacy Act, 5 U.S.C. 552a, provides in relevant part: "(a)(4) the term "record" means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph[.] ... "(b) Conditions of Disclosure.-No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be- ... "(7) to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought[.]" So a separate written request for each "portion" of any individual record that describes the "law enforcement activity for which the record is sought[.]" That doesn't sound like the contemplated unfettered access to bulk raw data. And it gets even better, with a right to sue for any violation, attorney fees and expenses, and a statutory minimum of $1,000 damages per violation just for winning the case.  
Paul Merrell

Edward Snowden: A 'Nation' Interview | The Nation - 0 views

www.thenation.com/...wden-exile-exclusive-interview

surveillance state Snowden-interview

shared by Paul Merrell on 30 Oct 14 - No Cached
  • Snowden: That’s the key—to maintain the garden of liberty, right? This is a generational thing that we must all do continuously. We only have the rights that we protect. It doesn’t matter what we say or think we have. It’s not enough to believe in something; it matters what we actually defend. So when we think in the context of the last decade’s infringements upon personal liberty and the last year’s revelations, it’s not about surveillance. It’s about liberty. When people say, “I have nothing to hide,” what they’re saying is, “My rights don’t matter.” Because you don’t need to justify your rights as a citizen—that inverts the model of responsibility. The government must justify its intrusion into your rights. If you stop defending your rights by saying, “I don’t need them in this context” or “I can’t understand this,” they are no longer rights. You have ceded the concept of your own rights. You’ve converted them into something you get as a revocable privilege from the government, something that can be abrogated at its convenience. And that has diminished the measure of liberty within a society.
  • From the very beginning, I said there are two tracks of reform: there’s the political and the technical. I don’t believe the political will be successful, for exactly the reasons you underlined. The issue is too abstract for average people, who have too many things going on in their lives. And we do not live in a revolutionary time. People are not prepared to contest power. We have a system of education that is really a sort of euphemism for indoctrination. It’s not designed to create critical thinkers. We have a media that goes along with the government by parroting phrases intended to provoke a certain emotional response—for example, “national security.” Everyone says “national security” to the point that we now must use the term “national security.” But it is not national security that they’re concerned with; it is state security. And that’s a key distinction. We don’t like to use the phrase “state security” in the United States because it reminds us of all the bad regimes. But it’s a key concept, because when these officials are out on TV, they’re not talking about what’s good for you. They’re not talking about what’s good for business. They’re not talking about what’s good for society. They’re talking about the protection and perpetuation of a national state system. I’m not an anarchist. I’m not saying, “Burn it to the ground.” But I’m saying we need to be aware of it, and we need to be able to distinguish when political developments are occurring that are contrary to the public interest. And that cannot happen if we do not question the premises on which they’re founded. And that’s why I don’t think political reform is likely to succeed. [Senators] Udall and Wyden, on the intelligence committee, have been sounding the alarm, but they are a minority.
  • The Nation: Every president—and this seems to be confirmed by history—will seek to maximize his or her power, and will see modern-day surveillance as part of that power. Who is going to restrain presidential power in this regard? Snowden: That’s why we have separate and co-equal branches. Maybe it will be Congress, maybe not. Might be the courts, might not. But the idea is that, over time, one of these will get the courage to do so. One of the saddest and most damaging legacies of the Bush administration is the increased assertion of the “state secrets” privilege, which kept organizations like the ACLU—which had cases of people who had actually been tortured and held in indefinite detention—from getting their day in court. The courts were afraid to challenge executive declarations of what would happen. Now, over the last year, we have seen—in almost every single court that has had this sort of national-security case—that they have become markedly more skeptical. People at civil-liberties organizations say it’s a sea change, and that it’s very clear judges have begun to question more critically assertions made by the executive. Even though it seems so obvious now, it is extraordinary in the context of the last decade, because courts had simply said they were not the best branch to adjudicate these claims—which is completely wrong, because they are the only nonpolitical branch. They are the branch that is specifically charged with deciding issues that cannot be impartially decided by politicians. The power of the presidency is important, but it is not determinative. Presidents should not be exempted from the same standards of reason and evidence and justification that any other citizen or civil movement should be held to.
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  • The Nation: Explain the technical reform you mentioned. Snowden: We already see this happening. The issue I brought forward most clearly was that of mass surveillance, not of surveillance in general. It’s OK if we wiretap Osama bin Laden. I want to know what he’s planning—obviously not him nowadays, but that kind of thing. I don’t care if it’s a pope or a bin Laden. As long as investigators must go to a judge—an independent judge, a real judge, not a secret judge—and make a showing that there’s probable cause to issue a warrant, then they can do that. And that’s how it should be done. The problem is when they monitor all of us, en masse, all of the time, without any specific justification for intercepting in the first place, without any specific judicial showing that there’s a probable cause for that infringement of our rights.
  • Since the revelations, we have seen a massive sea change in the technological basis and makeup of the Internet. One story revealed that the NSA was unlawfully collecting data from the data centers of Google and Yahoo. They were intercepting the transactions of data centers of American companies, which should not be allowed in the first place because American companies are considered US persons, sort of, under our surveillance authorities. They say, “Well, we were doing it overseas,” but that falls under a different Reagan-era authority: EO 12333, an executive order for foreign-intelligence collection, as opposed to the ones we now use domestically. So this one isn’t even authorized by law. It’s just an old-ass piece of paper with Reagan’s signature on it, which has been updated a couple times since then. So what happened was that all of a sudden these massive, behemoth companies realized their data centers—sending hundreds of millions of people’s communications back and forth every day—were completely unprotected, electronically naked. GCHQ, the British spy agency, was listening in, and the NSA was getting the data and everything like that, because they could dodge the encryption that was typically used. Basically, the way it worked technically, you go from your phone to Facebook.com, let’s say—that link is encrypted. So if the NSA is trying to watch it here, they can’t understand it. But what these agencies discovered was, the Facebook site that your phone is connected to is just the front end of a larger corporate network—that’s not actually where the data comes from. When you ask for your Facebook page, you hit this part and it’s protected, but it has to go on this long bounce around the world to actually get what you’re asking for and go back. So what they did was just get out of the protected part and they went onto the back network. They went into the private network of these companies.
  • The Nation: The companies knew this? Snowden: Companies did not know it. They said, “Well, we gave the NSA the front door; we gave you the PRISM program. You could get anything you wanted from our companies anyway—all you had to do was ask us and we’re gonna give it to you.” So the companies couldn’t have imagined that the intelligence communities would break in the back door, too—but they did, because they didn’t have to deal with the same legal process as when they went through the front door. When this was published by Barton Gellman in The Washington Post and the companies were exposed, Gellman printed a great anecdote: he showed two Google engineers a slide that showed how the NSA was doing this, and the engineers “exploded in profanity.” Another example—one document I revealed was the classified inspector general’s report on a Bush surveillance operation, Stellar Wind, which basically showed that the authorities knew it was unlawful at the time. There was no statutory basis; it was happening basically on the president’s say-so and a secret authorization that no one was allowed to see. When the DOJ said, “We’re not gonna reauthorize this because it is not lawful,” Cheney—or one of Cheney’s advisers—went to Michael Hayden, director of the NSA, and said, “There is no lawful basis for this program. DOJ is not going to reauthorize it, and we don’t know what we’re going to do. Will you continue it anyway on the president’s say-so?” Hayden said yes, even though he knew it was unlawful and the DOJ was against it. Nobody has read this document because it’s like twenty-eight pages long, even though it’s incredibly important.
  • The big tech companies understood that the government had not only damaged American principles, it had hurt their businesses. They thought, “No one trusts our products anymore.” So they decided to fix these security flaws to secure their phones. The new iPhone has encryption that protects the contents of the phone. This means if someone steals your phone—if a hacker or something images your phone—they can’t read what’s on the phone itself, they can’t look at your pictures, they can’t see the text messages you send, and so forth. But it does not stop law enforcement from tracking your movements via geolocation on the phone if they think you are involved in a kidnapping case, for example. It does not stop law enforcement from requesting copies of your texts from the providers via warrant. It does not stop them from accessing copies of your pictures or whatever that are uploaded to, for example, Apple’s cloud service, which are still legally accessible because those are not encrypted. It only protects what’s physically on the phone. This is purely a security feature that protects against the kind of abuse that can happen with all these things being out there undetected. In response, the attorney general and the FBI director jumped on a soap box and said, “You are putting our children at risk.”
  • The Nation: Is there a potential conflict between massive encryption and the lawful investigation of crimes? Snowden: This is the controversy that the attorney general and the FBI director were trying to create. They were suggesting, “We have to be able to have lawful access to these devices with a warrant, but that is technically not possible on a secure device. The only way that is possible is if you compromise the security of the device by leaving a back door.” We’ve known that these back doors are not secure. I talk to cryptographers, some of the leading technologists in the world, all the time about how we can deal with these issues. It is not possible to create a back door that is only accessible, for example, to the FBI. And even if it were, you run into the same problem with international commerce: if you create a device that is famous for compromised security and it has an American back door, nobody is gonna buy it. Anyway, it’s not true that the authorities cannot access the content of the phone even if there is no back door. When I was at the NSA, we did this every single day, even on Sundays. I believe that encryption is a civic responsibility, a civic duty.
  • The Nation: Some years ago, The Nation did a special issue on patriotism. We asked about a hundred people how they define it. How do you define patriotism? And related to that, you’re probably the world’s most famous whistleblower, though you don’t like that term. What characterization of your role do you prefer? Snowden: What defines patriotism, for me, is the idea that one rises to act on behalf of one’s country. As I said before, that’s distinct from acting to benefit the government—a distinction that’s increasingly lost today. You’re not patriotic just because you back whoever’s in power today or their policies. You’re patriotic when you work to improve the lives of the people of your country, your community and your family. Sometimes that means making hard choices, choices that go against your personal interest. People sometimes say I broke an oath of secrecy—one of the early charges leveled against me. But it’s a fundamental misunderstanding, because there is no oath of secrecy for people who work in the intelligence community. You are asked to sign a civil agreement, called a Standard Form 312, which basically says if you disclose classified information, they can sue you; they can do this, that and the other. And you risk going to jail. But you are also asked to take an oath, and that’s the oath of service. The oath of service is not to secrecy, but to the Constitution—to protect it against all enemies, foreign and domestic. That’s the oath that I kept, that James Clapper and former NSA director Keith Alexander did not. You raise your hand and you take the oath in your class when you are on board. All government officials are made to do it who work for the intelligence agencies—at least, that’s where I took the oath.
  • The Nation: Creating a new system may be your transition, but it’s also a political act. Snowden: In case you haven’t noticed, I have a somewhat sneaky way of effecting political change. I don’t want to directly confront great powers, which we cannot defeat on their terms. They have more money, more clout, more airtime. We cannot be effective without a mass movement, and the American people today are too comfortable to adapt to a mass movement. But as inequality grows, the basic bonds of social fraternity are fraying—as we discussed in regard to Occupy Wall Street. As tensions increase, people will become more willing to engage in protest. But that moment is not now.
  • The Nation: You really think that if you could go home tomorrow with complete immunity, there wouldn’t be irresistible pressure on you to become a spokesperson, even an activist, on behalf of our rights and liberties? Indeed, wouldn’t that now be your duty? Snowden: But the idea for me now—because I’m not a politician, and I do not think I am as effective in this way as people who actually prepare for it—is to focus on technical reform, because I speak the language of technology. I spoke with Tim Berners-Lee, the guy who invented the World Wide Web. We agree on the necessity for this generation to create what he calls the Magna Carta for the Internet. We want to say what “digital rights” should be. What values should we be protecting, and how do we assert them? What I can do—because I am a technologist, and because I actually understand how this stuff works under the hood—is to help create the new systems that reflect our values. Of course I want to see political reform in the United States. But we could pass the best surveillance reforms, the best privacy protections in the history of the world, in the United States, and it would have zero impact internationally. Zero impact in China and in every other country, because of their national laws—they won’t recognize our reforms; they’ll continue doing their own thing. But if someone creates a reformed technical system today—technical standards must be identical around the world for them to function together.
  • As for labeling someone a whistleblower, I think it does them—it does all of us—a disservice, because it “otherizes” us. Using the language of heroism, calling Daniel Ellsberg a hero, and calling the other people who made great sacrifices heroes—even though what they have done is heroic—is to distinguish them from the civic duty they performed, and excuses the rest of us from the same civic duty to speak out when we see something wrong, when we witness our government engaging in serious crimes, abusing power, engaging in massive historic violations of the Constitution of the United States. We have to speak out or we are party to that bad action.
  • The Nation: Considering your personal experience—the risks you took, and now your fate here in Moscow—do you think other young men or women will be inspired or discouraged from doing what you did? Snowden: Chelsea Manning got thirty-five years in prison, while I’m still free. I talk to people in the ACLU office in New York all the time. I’m able to participate in the debate and to campaign for reform. I’m just the first to come forward in the manner that I did and succeed. When governments go too far to punish people for actions that are dissent rather than a real threat to the nation, they risk delegitimizing not just their systems of justice, but the legitimacy of the government itself. Because when they bring political charges against people for acts that were clearly at least intended to work in the public interest, they deny them the opportunity to mount a public-interest defense. The charges they brought against me, for example, explicitly denied my ability to make a public-interest defense. There were no whistleblower protections that would’ve protected me—and that’s known to everybody in the intelligence community. There are no proper channels for making this information available when the system fails comprehensively.
  • The government would assert that individuals who are aware of serious wrongdoing in the intelligence community should bring their concerns to the people most responsible for that wrongdoing, and rely on those people to correct the problems that those people themselves authorized. Going all the way back to Daniel Ellsberg, it is clear that the government is not concerned with damage to national security, because in none of these cases was there damage. At the trial of Chelsea Manning, the government could point to no case of specific damage that had been caused by the massive revelation of classified information. The charges are a reaction to the government’s embarrassment more than genuine concern about these activities, or they would substantiate what harms were done. We’re now more than a year since my NSA revelations, and despite numerous hours of testimony before Congress, despite tons of off-the-record quotes from anonymous officials who have an ax to grind, not a single US official, not a single representative of the United States government, has ever pointed to a single case of individualized harm caused by these revelations. This, despite the fact that former NSA director Keith Alexander said this would cause grave and irrevocable harm to the nation. Some months after he made that statement, the new director of the NSA, Michael Rogers, said that, in fact, he doesn’t see the sky falling. It’s not so serious after all.
  • The Nation: You also remind us of [Manhattan Project physicist] Robert Oppenheimer—what he created and then worried about. Snowden: Someone recently talked about mass surveillance and the NSA revelations as being the atomic moment for computer scientists. The atomic bomb was the moral moment for physicists. Mass surveillance is the same moment for computer scientists, when they realize that the things they produce can be used to harm a tremendous number of people. It is interesting that so many people who become disenchanted, who protest against their own organizations, are people who contributed something to them and then saw how it was misused. When I was working in Japan, I created a system for ensuring that intelligence data was globally recoverable in the event of a disaster. I was not aware of the scope of mass surveillance. I came across some legal questions when I was creating it. My superiors pushed back and were like, “Well, how are we going to deal with this data?” And I was like, “I didn’t even know it existed.” Later, when I found out that we were collecting more information on American communications than we were on Russian communications, for example, I was like, “Holy shit.” Being confronted with the realization that work you intended to benefit people is being used against them has a radicalizing effect.
  • The Nation: We have a sense, or certainly the hope, we’ll be seeing you in America soon—perhaps sometime after this Ukrainian crisis ends. Snowden: I would love to think that, but we’ve gone all the way up the chain at all the levels, and things like that. A political decision has been made not to irritate the intelligence community. The spy agencies are really embarrassed, they’re really sore—the revelations really hurt their mystique. The last ten years, they were getting the Zero Dark Thirty treatment—they’re the heroes. The surveillance revelations bring them back to Big Brother kind of narratives, and they don’t like that at all. The Obama administration almost appears as though it is afraid of the intelligence community. They’re afraid of death by a thousand cuts—you know, leaks and things like that.
  • The Nation: You’ve given us a lot of time, and we are very grateful, as will be The Nation’s and other readers. But before we end, any more thoughts about your future? Snowden: If I had to guess what the future’s going to look like for me—assuming it’s not an orange jumpsuit in a hole—I think I’m going to alternate between tech and policy. I think we need that. I think that’s actually what’s missing from government, for the most part. We’ve got a lot of policy people, but we have no technologists, even though technology is such a big part of our lives. It’s just amazing, because even these big Silicon Valley companies, the masters of the universe or whatever, haven’t engaged with Washington until recently. They’re still playing catch-up. As for my personal politics, some people seem to think I’m some kind of archlibertarian, a hyper-conservative. But when it comes to social policies, I believe women have the right to make their own choices, and inequality is a really important issue. As a technologist, I see the trends, and I see that automation inevitably is going to mean fewer and fewer jobs. And if we do not find a way to provide a basic income for people who have no work, or no meaningful work, we’re going to have social unrest that could get people killed. When we have increasing production—year after year after year—some of that needs to be reinvested in society. It doesn’t need to be consistently concentrated in these venture-capital funds and things like that. I’m not a communist, a socialist or a radical. But these issues have to be 
addressed.
  • Paul Merrell on 30 Oct 14
     
    Remarkable interview. Snowden finally gets asked some questions about politics. 
Paul Merrell

Israel Sued in US over Flotilla Attacks. Civil Law Suit against the State of Israel | G... - 0 views

www.globalresearch.ca/...5501501

war & peace Israel Gaza-Freedom-Flotilla litigation

shared by Paul Merrell on 16 Jan 16 - No Cached
  • Four people, including three Americans, have filed a civil suit against the state of Israel, seeking compensatory damages for injuries suffered during an attack aboard a U.S. ship in international waters during the year 2010. At a Washington press conference, Tuesday, the plaintiffs said they wanted compensation for “the harm and distress, injuries and losses caused by the attack”. Israel has refused to acknowledge responsibility and liability for the attack and is yet to pay compensation to victims aboard the Challenger I, which was part of a Freedom Flotilla set to deliver humanitarian aid and medical supplies to the Gaza Strip, which was and still remains under an Israeli blockade. According to the complaint, the U.S. ship has never been returned by Israel and is still being held there. Israeli special forces stormed the ships and killed nine civilians aboard another ship in the flotilla, the Turkish Mavi Marmara. That event has since frozen relations between Israel and Turkey. That case was referred to the International Criminal Court by the Union of the Comoros because the Turkish vessel was sailing under its flag.
  • The family of a 19-year old American-Turkish national, Furkan Dogan, who was killed in the Mavi Marmara raid, last October, sued former Israeli Defense Minister Ehud Barak on war crimes charges. The latest lawsuit filed Monday is the first U.S. case brought against Israel relating to the Freedom Flotilla. The plaintiffs and their attorneys spoke to Anadolu Agency, following a press conference that announced the suit: “States are generally immune from suit in United States courts. But that immunity is waived in a number of circumstances. When agents of foreign governments commit wrongful acts in the United States that cause personal injury, and egregious acts against U.S. nationals anywhere in the world, they are not entitled to immunity,” said lawyer Steven Schneebaum. He noted that both exceptions apply to the facts of Challenger I case because a U.S. flagged ship falls under U.S. jurisdiction. The case is ground-breaking as it relies on an exception in American law that allows lawsuits to be brought against foreign states, in limited cases.
  • According to professor Ralph Steinhardt, a member of the plaintiffs’ legal team, Israel’s sovereignty does not allow it to attack American flagged civilian ships and attack those on it. “The attack on Challenger I was a patent violation of international law, including the laws of war, human rights, and the law of the sea,” according to the George Washington University international law professor. A UK-based international lawyer representing the plaintiffs, Sir Geoffrey Nice, described the case against Israel as “a real test” for the rule of international law. “This case, alongside the others, the one in the International Criminal Court and the one in California would have the following very clear political outcome: If Israel has enjoyed special privileged status of impunity because of protection by the United State of America, then that impunity is on the way out,” he said.
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
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